보험제도를 이용한 해상기업 상대방 보호 (How to Protect the Opposite or Third Parties of Shipping Companies through Insurance Contracts)

서지정보

· 발행기관 : 한국상사법학회
· 수록지 정보 : 상사법연구 / 31권 / 4호 / 115 ~ 150페이지
· 저자명 : 김인현

초록

There are many provisions to protect the shipowners or the carriers in the Korean Commercial Code. However, the provisions to protect the opposite party of the shipowners or the carriers are less than those for them. The author tries to find out how the opposite parties of the shipowners or the carriers are additionally protected by the insurance.
The result shows that the liability insurance is widely used for the purpose of protecting victims who sustain damages caused by the negligence of the shipowners or the carriers. Under the Korean Commercial Code, the third party victims are allowed to directly claim insurance proceeds against the insurer. By imposing upon the shipowner obligation to enter into liability insurance for compensating damages caused by oil pollution, the victims are further protected. The liability insurance is a good example as a kind of the insurance for the insured as the party in the contract.
On the other hand, the surety insurance is a good example as a kind of the insurance for the insured not the party to the contract. The freight forwarder should enter into the surety insurance to protect the shipper or the carrier when it act as the carrier or the intermediary in accordance with the Act for Facilitating Logistics. Not the freight forwrder but the shipper is the insured who is entitled to receive the insurance proceeds under the contract.
The author thinks that several other insurance products could be developed for the purpose of protecting the opposite party to the shipowner or the carrier. One of them is the compulsory liability insurance to cover the wreck removal expenses for the salvage providers. Besides, the shipowner may require the charterer to provide surety insurance as a means to secure the hire from the charterer. When the charterer is not able to pay the hire to the shipowner, the insurer will pay the hire, instead of the charterer, to the shipowner in the name of the insurance proceeds.
Exercising subrogation right against the insured as the party to the contract is not allowed under the liability insurer, but it is allowed under the insurance for the insured not as the party to the contract such as in surety insurance. Liability insurance seems more favorable than the surety insurance to the insured as the party because it is not subject to the exercise of subrogation right of the insurer.
Under English law, the presence of pay-to-be-paid rule, and warranty affect the insured negatively and thus the author recommends that the insured insert Korean governing law clause in the insurance contract when it enters into insurance contract with Korean insurer.

영어초록

There are many provisions to protect the shipowners or the carriers in the Korean Commercial Code. However, the provisions to protect the opposite party of the shipowners or the carriers are less than those for them. The author tries to find out how the opposite parties of the shipowners or the carriers are additionally protected by the insurance.
The result shows that the liability insurance is widely used for the purpose of protecting victims who sustain damages caused by the negligence of the shipowners or the carriers. Under the Korean Commercial Code, the third party victims are allowed to directly claim insurance proceeds against the insurer. By imposing upon the shipowner obligation to enter into liability insurance for compensating damages caused by oil pollution, the victims are further protected. The liability insurance is a good example as a kind of the insurance for the insured as the party in the contract.
On the other hand, the surety insurance is a good example as a kind of the insurance for the insured not the party to the contract. The freight forwarder should enter into the surety insurance to protect the shipper or the carrier when it act as the carrier or the intermediary in accordance with the Act for Facilitating Logistics. Not the freight forwrder but the shipper is the insured who is entitled to receive the insurance proceeds under the contract.
The author thinks that several other insurance products could be developed for the purpose of protecting the opposite party to the shipowner or the carrier. One of them is the compulsory liability insurance to cover the wreck removal expenses for the salvage providers. Besides, the shipowner may require the charterer to provide surety insurance as a means to secure the hire from the charterer. When the charterer is not able to pay the hire to the shipowner, the insurer will pay the hire, instead of the charterer, to the shipowner in the name of the insurance proceeds.
Exercising subrogation right against the insured as the party to the contract is not allowed under the liability insurer, but it is allowed under the insurance for the insured not as the party to the contract such as in surety insurance. Liability insurance seems more favorable than the surety insurance to the insured as the party because it is not subject to the exercise of subrogation right of the insurer.
Under English law, the presence of pay-to-be-paid rule, and warranty affect the insured negatively and thus the author recommends that the insured insert Korean governing law clause in the insurance contract when it enters into insurance contract with Korean insurer.

참고자료

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