2007년도 보험법 판례의 동향과 그 연구 (Study on the Insurance Law Cases of 2007)

서지정보

· 발행기관 : 한국상사판례학회
· 수록지 정보 : 상사판례연구 / 21권 / 2호 / 361 ~ 395페이지
· 저자명 : 장덕조

초록

This paper is to study and analyze some important cases held by the Korean Supreme in 2007. First, this paper studies the clause of the fraudulent insurance claims. The clause make the insurance contract void if the insured deceive the insurer in the process of claim. It would seem that there are three necessary pre-conditions to a fraudulent claim; (a) the insured must make a claim under the policy; (b) he must be guilty of fraudulent conduct; and (c) the fraud must be directly related to the essence of promotion of the claim.
Second, this paper deals with the question whether injury, loss, or damage inflicted by a person insured under a insurance policy was "intentional" injury, loss, or damage within the scope of an intentional injury exclusion clause set forth in the Korean Commercial §659. Third, Guaranty insurance is an insurance that promises the debtor to indemnify the damage of the creditor which may arise in regard to the performance of obligation under contracts of sale, employment, works or others and receives from the debtor. Forth, this paper debates the explanation duty of an insurer as applied to insurance coverage disputes. Courts and most scholars have argues for the soul of contract law. Under the traditional contract theory, the assent of both parties to the terms of an agreement is necessary for creation of an enforceable contract. Provisions excluding or limiting coverage, according to the theory, would not be enforceable because of "substantialness". However, it is very difficult to discern the substantial clause and the non-substantial.

영어초록

This paper is to study and analyze some important cases held by the Korean Supreme in 2007. First, this paper studies the clause of the fraudulent insurance claims. The clause make the insurance contract void if the insured deceive the insurer in the process of claim. It would seem that there are three necessary pre-conditions to a fraudulent claim; (a) the insured must make a claim under the policy; (b) he must be guilty of fraudulent conduct; and (c) the fraud must be directly related to the essence of promotion of the claim.
Second, this paper deals with the question whether injury, loss, or damage inflicted by a person insured under a insurance policy was "intentional" injury, loss, or damage within the scope of an intentional injury exclusion clause set forth in the Korean Commercial §659. Third, Guaranty insurance is an insurance that promises the debtor to indemnify the damage of the creditor which may arise in regard to the performance of obligation under contracts of sale, employment, works or others and receives from the debtor. Forth, this paper debates the explanation duty of an insurer as applied to insurance coverage disputes. Courts and most scholars have argues for the soul of contract law. Under the traditional contract theory, the assent of both parties to the terms of an agreement is necessary for creation of an enforceable contract. Provisions excluding or limiting coverage, according to the theory, would not be enforceable because of "substantialness". However, it is very difficult to discern the substantial clause and the non-substantial.

참고자료

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