영국 해상보험법의 주요 개혁안에 관한 연구 - 보험계약자의 계약체결 전 정보제공의무를 중심으로 -

Abstract

The common rules of the duty of utmost good faith are found in sections 17-20 of the MIA 1906. By virtue of s. 18 of the MIA 1906, a person applying for insurance is required to volunteer information to the insurer on material circumstances. The remedy for non-disclosure of a material circumstance which would influence the judgment of a prudent insurer in fixing the premium or deciding whether he will take the risk or not, is the avoidance of policy. Similar rules true for the assured who makes a material misrepresentation. Critics on the current legal position with relation to the pre-contractual duty of utmost good faith are concentrate particularly on two points. First, the scope of the duty is criticized as imposing so high burden on the assured. Secondly, the remedy of avoidance available for insurers against breach of the pre-contractual duty of utmost good faith may give insurers too much protection or compensation. This article is intending to analyse main proposals for reform in relation to the policyholder's pre-contractual duty of information which are proposed by English Law Commissions, and legal implications of the proposals. The results of analysis are as following. First, the Law Commissions propose to abolish the policyholders'voluntary duty of disclosure for consumer insurance at the pre-contractual stage. The Law Commissions take a view in this regard that the law should be lined with industry practice, and the range of factors relevant to insurer's decision is sufficiently well-known and predictable that the insurer can obtain necessary information by asking specific questions in consumer insurance. Secondly, the Law Commissions suggest that consumers who act honestly and reasonably, should be protected. That is, policyholders in consumer insurance should have a duty to answer questions honestly and to take reasonable care so that their replies are accurate and complete. Finally, the Law Commissions classify a misrepresentation under the current common law as three types and propose different results against respective misrepresentations. In according to the Law Commissions' proposal, the insurer has no remedy where a misrepresentation is honest and reasonable, the insurer has a compensatory remedy where a misrepresentation is careless and the insurer may avoid the policy like the position of current law where the misrepresentation is deliberate or reckless.