生命保險契約者의 地位의 讓渡 -대상판결 :東京高判 平成17(ネ)5613號, 平18. 3.22,民17部判決- (The Absolute Assignment of the Insured in the Life Insurance Policy)

서지정보

· 발행기관 : 한국상사판례학회
· 수록지 정보 : 상사판례연구 / 21권 / 4호 / 281 ~ 310페이지
· 저자명 : 김문재

초록

This case is related to the viatical settlement. Viatical settlements consist of the buying and selling of life insurance policies of terminally ill policyholders. Viatical settlement agreements, emerged in 1989 with the company engaging in this type of transaction in USA, arose from the need of terminally ill persons to obtain funds to pay exorbitant medical expenses caused by the rising costs of health care. The insured is paid a lump sum of money and the viatical settlement company obtains the right to receive the death benefits of the policy when the individual dies.
The most important point of this case is the problem of the necessity that the insurer give consent to the assignment. The consent of insurer to the assignment in USA do not be required. Commercial Codes in Korea and Japan do not have the related provisions. But the agreements on the life insurance policy in Korea and Japan requires the consent of insurer to the assignment. About this consent right of the insurer, the one asserts that the insurer has the discretionary authority about the performance of it, the other denies it. The judgement in this case decides that the insurer has the discretionary authority about the performance of it.
But this paper opposes the judgement. This paper asserts it to be the abuse of the right, that the insurer refuses to exercise the consent to the assignment according to the discretionary authority about the performance of it, although the insurer has not the special reasons.

영어초록

This case is related to the viatical settlement. Viatical settlements consist of the buying and selling of life insurance policies of terminally ill policyholders. Viatical settlement agreements, emerged in 1989 with the company engaging in this type of transaction in USA, arose from the need of terminally ill persons to obtain funds to pay exorbitant medical expenses caused by the rising costs of health care. The insured is paid a lump sum of money and the viatical settlement company obtains the right to receive the death benefits of the policy when the individual dies.
The most important point of this case is the problem of the necessity that the insurer give consent to the assignment. The consent of insurer to the assignment in USA do not be required. Commercial Codes in Korea and Japan do not have the related provisions. But the agreements on the life insurance policy in Korea and Japan requires the consent of insurer to the assignment. About this consent right of the insurer, the one asserts that the insurer has the discretionary authority about the performance of it, the other denies it. The judgement in this case decides that the insurer has the discretionary authority about the performance of it.
But this paper opposes the judgement. This paper asserts it to be the abuse of the right, that the insurer refuses to exercise the consent to the assignment according to the discretionary authority about the performance of it, although the insurer has not the special reasons.

참고자료

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