영국 보험법 상 손해방지의무에 관한 연구 (A Study on the Duty to Avert and Mitigate Insured Loss in English Insurance Law)

서지정보

· 발행기관 : 한국무역상무학회
· 수록지 정보 : 무역상무연구 / 80권 / 145 ~ 167페이지
· 저자명 : 신건훈, 이병문

초록

In the excitement which attends a loss covered by the insurer, the assured should seek to act as if he was uninsured and take those steps to avoid the loss or lessen its harmful effect. The position of English insurance law is not clear on the nature and extent of duty to avert or minimize the insured loss, and, therefore, this study is designed to examine the nature and extent of the duty. The result of analysis are as followings. First, it is well established that the duty to mitigate is not an any sense an obligation, contractual or otherwise, and it is condition attached to the right to claim total damages.
Secondly, the duty arises when peril is at any rate imminent. The duty does not arise until a peril as at any rate imminent and it is duty that arises in response to a casualty, actual or imminent. In order that the duty should cease to apply, it is necessary for the subject-matter insured to be no longer threatened by perils for which the assured are responsible.
Thirdly, the question may arise of the degree of likelihood of loss by a covered peril. In this regards, English courts held that a stringent test of likehood of covered loss was in principle inappropriate and it sufficed that there was a risk of an insured loss materializing.
Fourthly, there is a duty to mitigate insured loss in both marin and non-marine insurance, but the degree is so different. The assured is better favoured by the rule of marine insurance than by its non-marine insurance.
Finally, the test of reasonableness relating to the duty seems to be an objective one. The test is not strict one, which should be assessed by reference to the conduct that might reasonably be expected of a person of normal competence in the circumstances of the peril that occurred.

영어초록

In the excitement which attends a loss covered by the insurer, the assured should seek to act as if he was uninsured and take those steps to avoid the loss or lessen its harmful effect. The position of English insurance law is not clear on the nature and extent of duty to avert or minimize the insured loss, and, therefore, this study is designed to examine the nature and extent of the duty. The result of analysis are as followings. First, it is well established that the duty to mitigate is not an any sense an obligation, contractual or otherwise, and it is condition attached to the right to claim total damages.
Secondly, the duty arises when peril is at any rate imminent. The duty does not arise until a peril as at any rate imminent and it is duty that arises in response to a casualty, actual or imminent. In order that the duty should cease to apply, it is necessary for the subject-matter insured to be no longer threatened by perils for which the assured are responsible.
Thirdly, the question may arise of the degree of likelihood of loss by a covered peril. In this regards, English courts held that a stringent test of likehood of covered loss was in principle inappropriate and it sufficed that there was a risk of an insured loss materializing.
Fourthly, there is a duty to mitigate insured loss in both marin and non-marine insurance, but the degree is so different. The assured is better favoured by the rule of marine insurance than by its non-marine insurance.
Finally, the test of reasonableness relating to the duty seems to be an objective one. The test is not strict one, which should be assessed by reference to the conduct that might reasonably be expected of a person of normal competence in the circumstances of the peril that occurred.

참고자료

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