보험계약상 고지의무제도의 문제점과 그 개선방안에 관한 연구

Abstract

A study on problems and improvement plan of notifying obligation system in insurance contract

Young-Suk Kang

Department of Law, The Graduate School, Pukyong National University

Our Commercial Code Article 651 states that " when policyholders or insured person did not notify important information or informed Stale Notices, insurer may terminate the insurance contract." This implys indirectly the policyholders' legal obligations to cooperate with insurer.And the Code states "obligation for policyholders or the insured person to notify important information or not to inform Stale Notices at the time of the insurance contract." as well as the Code states the factors of violation of the duty of disclosure. When violation of the duty of disclosure is established, the insurer may terminate the insurance contract and may give up its rights. Insurance claims for the insurer is recognized, while the offender on the duty of disclosure is denied for insurance claims. Insurance is a financial system : when an accident happens, a majority of people under the same risk of accidental incidents is supposed to receive certain amount of money which is determined and has been carried in advance on statistical basis. Duty of disclosure is a special obligation which requires insurer to tell the true contents and the important facts of policyholder in oder to predict the likelihood of accidents in entering the insurance contract. Due to the nature of insurance, imbalance of information between the parties makes it difficult for the insurer to know information in the area of the insured person. Since insurance rates is calculated on basis of the information given by policyholder, the information should be given on the principle of good faith. Issues on Duty of disclosure is the increasing trend each year and conflicts of various economic issues on the duty of disclosure cause insurer to have technical and economic problems. And recently the revised insurance law has been made in many countries due to changes in the social environment and the parts of Duty of disclosure are being amended to suit the reality.

Overall, the revised insurance law contains reinforced contents favorable to the policyholder and trying to keep the balance of interests between the parties is seen. Based on the maximum line of duty of an insurance contract, Duty of disclosure is prescribed in Article 17, British Marine Insurance Act, to prevent fraud and to encourage the good by giving Duty of disclosure to the policyholder. In the current Anglo-American countries, it is attracted that sentences require the duty of disclosure for insurers. In Korea, a lot of insurance consumer perspective has been reflected in revising commercial insurance in 1991. Unlike other areas of commercial law, Insurance Act amendments was not made at all and then in 2007 a hearing on revised draft was held, but the amendment could not pass the Assembly and was auto-discarded however, it is thought that Commercial insurance law could be amended someday. In this article, after organizing a general theory about the duty of disclosure and then we will look at whether there is any problem on our insurance law. And after reviewing the direction for a recent revision of the major countries, we'll not only examine the implications but also look for the Improvement of current system and examine introduction of Duty of Disclosure for the insurer.

key words: insurance, disclosure and representation, material facts, utmost good faith, recent development of the to disclose