고지의무의 수동화

• 영문명: Making the Duty of Disclosure Passive : from the duty of voluntary disclosure to the duty to answer questions
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 한기정(Ki Jeong Han)
• 간행물 정보: 『비교사법』比較私法 제16권 제3호, 325~363쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.09.30

영문 초록

It is widely recognised that the insured's duty of disclosure is indispensible to the insurer's underwriting. The duty of disclosure in insurance contracts which was established in the 18th century has been a constantly controversial issue between the insured and the insurer. It has been criticised that the insured's duty to volunteer material facts to the insurer is too strict to the former, but too favourable to the latter. This criticism has drawn a considerable sympathy from lawyers and academics in that the ordinary insured who is not well equipped with the knowledge of materiality has to run the risk of losing his insurance claim because of a failure to volunteer material facts. It is suggested that a fair balance between the insured and the insurer be struck by the insurer's having to ask questions about material facts and the insured's having only to answer those questions. It is welcome that the conversion from the duty of voluntary disclosure to the duty to answer questions has happened in several countries such as France(in 1989), Australia(in 1998), and recently Germany(in 2007), Japan(in 2008). And, English Law Commission proposed in 2007 the introduction of such a conversion to consumer insurance. On the other hand, Korean Commercial Code is arguably interpreted to impose the duty of voluntary disclosure on the insured. This article tries to do a comparative study on the recent trend of abolishing voluntary disclosure, and substantiate the necessity of abolishing voluntary disclosure, and make some suggestions about the reform of the Korean Commercial Code.

목차

Ⅰ. 들어가며

Ⅱ. 주요국의 입법 동향

Ⅲ. 고지의무 수동화의 기본 방향

Ⅳ. 응답의무에 관련된 주요 쟁점

Ⅴ. 결론

참고문헌

Abstract

키워드

The Duty of Disclosure Insurance Contracts Voluntary Disclosure the Duty to Answer Questions the Knowledge of Materiality