告知義務違反의 要件에 관한 最近 判例의 硏究

초록

This paper is to study and analyze some important cases held by the Korean Supreme Court in the past three years. The issue which will be dealt with in this paper involves the duty of disclosure. The insureds of the cases did not answer questions fully on the other insurances. The Supreme Court construed the related matters, and this paper clarified the holding. The section 651 of Korean Commercial Code is based on utmost good faith, and it has been interpreted to mean that a insured is under a duty volunteer material information, and that the penalty for failing to do so is avoidance. It places an obligation on the insured to disclose every circumstance which would influence the judgement of a prudent insurer in fixing the premium or determining whether he will take the risk. First, this paper debates the "material facts". It is very difficult to discern the substantial and the non-substantial. This paper also explorers some the related points with the material facts. Second, this paper tries to clarify the meaning of intention and gross negligence. It is now generally accepted good practice that insurers should ask insureds questions about any material facts they wish to know. Many countries recognizes and will refuse to allow an insurer to avoid a policy for non-disclosure where no question was asked. Under the current situation, this paper criticizes CaseⅠ. The reason is that it is difficulty to admit insured's violation of disclosure duty in caseⅠ. CaseⅠ does not seem to reflect the existing world wide approach and established practices and theories.

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