영국 2015년 보험법 상 약정에 의한 제정법배제 원칙에 관한 연구 (A Study on the Rule of Contracting out in the Insurance Act 2015)

서지정보

· 발행기관 : 한국무역상무학회
· 수록지 정보 : 무역상무연구 / 103권 / 25 ~ 44페이지
· 저자명 : 신건훈, 이병문

초록

IA 2015 제17조에서는 비소비자보험과 관련하여 원칙적으로 제정법적용의 배제가 허용되어야 하지만, 계약당사자의 이익균형 모색이라는 관점에서 배제원칙에 대한 제한을 설정하는 것이 필요하다고 판단하였고, 이러한 의미에서 IA 2015 제17조에서는 2개의 절차적인 요건, 소위 투명성요건을 부과하고 있다. 이 논문에서는 IA 2015 상 당사자약정에 의한 제정법적용의 배제 원칙과 관련하여 입법취지, 적용범위 및 제정법배제 약정의 효력을 위한 전제요건으로서 투명성요건의 충족에 대한 법률적인 의미를 분석하는데 그 목적을 두고 있다.

영어초록

The rule of contracting out set out in section 16~section 17 applies to non-consumer insurance, even though most of sections under the Insurance Act 2015 apply to both consumer and non-consumer insurance. As concerned to consumer insurance, a contractual term that would put the assured in a worse position than the default position under the IA 2015 is to that extent of no effect. On the other hand, in non-consumer insurance the parties would be free to contract out of the provisions of the IA 2015, subject to transparency requirements as set out in s. 17. In this respect, some critics argue that this wide liberty threatens the overarching aim of the IA 2015, namely to ensure “a better balance of interests between policyholders and insurers” and actually works against the effect of law reform in English insurance law. Nevertheless, LC concluded that the rule of contracting out should be introduced as a political compromise to water down the opposition to the reform of some market participants.
As a result, a term that puts the assured in a worse position that the default under the IA 2015 is enforceable if the insurer takes sufficient steps to draw disadvantageous terms to the attention of the assured before the contract is entered into and if such a term is clear and unambiguous as to its effect. The first requirement for transparency is drafted very broadly, taking into account the fact that the subjective characteristics of the assured of the kind in question and the circumstances of the transaction will be decisive in determining whether the disadvantageous term has been sufficiently brought to the attention of the assured at the outset.
It is not possible at this stage to predict to what extent the insurers will opt to contract out of the provisions of the IA 2015, but it is quite apparent that the transparency requirements might be some factors to increase administrative costs or to create a reputational hazard for insurers who decide to contract out excessively. It is inevitable fact that any law reform will be associated with transitional confusion, but it is possible to expect at this stage that most of such a confusion will be solved quite quickly once a judicial views on some matters are expressed.

참고자료

· 없음