불이익변경금지원칙의 적용 예외

• 영문명: A Study on the Application of Article 663 of the Commercial Act to the Clause of Insurance
• 발행기관: 경희법학연구소
• 저자명: 신강재(Shin, Kang-Jae)
• 간행물 정보: 『KHU 글로벌 기업법무 리뷰』제1권 제2호, 88~111쪽, 전체 24쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2008.12.30

영문 초록

This paper aims at analyzing the legal nature of Article 663 in the Insurance Contract Law(Part IV of the Commercial Act). And the writer tried to tackle some of the main issues of Article 663 by putting the leading case of the Korea Supreme Court first in importance. Article 663 of the Commercial Act is titled “Prohibition of the disadvantagous alteration to policy holder, etc.” and stipulated as follows: Provisions of this part can not be changed to the disadvantage of the policy holder, the insured or beneficiary by special agreement between the parties. But this shall not be applied to reassurance, marine insurance and the kind of insurances stated in the proviso of this Article. Article 663 is so called “the principle of the prohibition of disadvantagous alteration” and it is a special legislation that makes all the articles in Part IV of the Commercial Act to be minimum standard for the protection of the policy holder, insured or beneficiary. That is to say, all the articles in Part IV of the Commercial Act turns out to be related to compulsory statutes owing to Article 663. The writer searched all the judicial precedents of the Korea Supreme Court concerning Article 663, analyzed and studied every kind of documents related to them. And then, the writer reached an over-all conclusions as follows: First, Article 663 plays an important role in protecting the contractor, etc as a consumer, but it is not necessary to make all the articles compulsory in Part IV of the Commercial Act. It is an excessive regulation. The system of private law and insurance law may be threatened by Article 663. So it is insisted that only articles Part IV which are necessarily required to protect the insured, etc. should be compulsory. Second, Article 663 is applied to all kinds of insurance contract, but a proviso stipulated that “this article is not applied to reassurance, marine insurance and similar kinds of insurance”. However, the intent of the proviso is to exclude the application of Article 663 to the insurance contract with a corporate entity as counterparty. That s why there is no necessity to protect the enterprises who have the professional capacity to protect themselves. Therefore, we need to revise this proviso to exclude the application of Article 663 to all the insurance contracts between the enterprises according to its character, not only reassurance, marine insurance and similar kinds of insurance according to its types. In case of settling the insurance cases, there are a few things important to consider. Those are the system of insurance and its fundamental truth. Although it is important to protect the consumer of insurance. But it is also important to protect the system of insurance. It should be noted that there is no consumer of insurance without such a kind of system.

목차

Ⅰ. 서론

Ⅱ. 상법 제4편에 규정되지 않은 사항

Ⅲ. 상법 제663조 단서의 보험계약

Ⅳ. 판례에 의하여 상법 제663조가 적용되지 아니한 경우

Ⅴ. 결론