보험법 판례의 변화와 전망 (The Changes and Prospect of the Insurance Law Cases)

서지정보

· 발행기관 : 한국상사판례학회
· 수록지 정보 : 상사판례연구 / 23권 / 1호 / 139 ~ 213페이지
· 저자명 : 장덕조

초록

This paper is to study and analyze some important cases held by the Korean Supreme in the past fifty years. First, 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. And so forth, this paper also explorers some the point at issues of insurance law. Second, the subject of this study is temporary protection of insurance. A substantial period of time may passs between the moment insurance is applied for and the date when an insurance policy is issued. This occurs because an applicant is dealing with a sales representative who does not have the authority to issue a policy. A lack of coverage before the issuance of an insurance policy, especially when the period extends for weeks or months, is disadvantageous to an applicant. The Supreme Court construed the related regulation, and this paper clarified the hloding.


Third, this paper studies the scope of the automobile insured accident. It is usually expressed in the automobile insurance policy "are covered for the ownership, maintenance, or use of auto." The automobile insurance policy generally provides that insured- that is, the covered persons, including the named insured and his or her family members who reside in the same household- are covered "for the ownership, maintenance, or use of auto." This means each of these persons is insured both as an operator of the vehicle designed in the insurance policy. This paper attempts to identify the exact meaning of the policy. Forth, 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.


Also, 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. And, 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. Another issue that this paper studies is the life insurance of the third person. without documental consent of the third person before the conclusion of contract, the insurance contract is void. Even though the third person ratify after the conclusion contract, the contract may not be effective. The Court confirm this legal principle.

영어초록

This paper is to study and analyze some important cases held by the Korean Supreme in the past fifty years. First, 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. And so forth, this paper also explorers some the point at issues of insurance law. Second, the subject of this study is temporary protection of insurance. A substantial period of time may passs between the moment insurance is applied for and the date when an insurance policy is issued. This occurs because an applicant is dealing with a sales representative who does not have the authority to issue a policy. A lack of coverage before the issuance of an insurance policy, especially when the period extends for weeks or months, is disadvantageous to an applicant. The Supreme Court construed the related regulation, and this paper clarified the hloding.


Third, this paper studies the scope of the automobile insured accident. It is usually expressed in the automobile insurance policy "are covered for the ownership, maintenance, or use of auto." The automobile insurance policy generally provides that insured- that is, the covered persons, including the named insured and his or her family members who reside in the same household- are covered "for the ownership, maintenance, or use of auto." This means each of these persons is insured both as an operator of the vehicle designed in the insurance policy. This paper attempts to identify the exact meaning of the policy. Forth, 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.


Also, 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. And, 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. Another issue that this paper studies is the life insurance of the third person. without documental consent of the third person before the conclusion of contract, the insurance contract is void. Even though the third person ratify after the conclusion contract, the contract may not be effective. The Court confirm this legal principle.

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