영국 보험법 상 사기에 의한 보험금청구의 유형 및 효과

Abstract

The fraud has threatened the existence of insurance industry since the commencement of insurance industry. In English case law, the subject of fraudulent insurance claims has evoked judicial and academic debate over the last two decades. Notwithstanding the fact that some 250 years have elapsed since Lord Mansfield established the principle of utmost good faith in Carter v. Boehm, substantial uncertainty continues to surround legal rule and consequences of a fraudulent claim, made in the context of the insurance relationship. The purpose of this article is, therefore, to analyse the consequences of a fraudulent claim in English case law. The result of research are as follows. First, English courts have sometimes relied upon the doctrine of utmost good faith to explain fraudulent claim rule and allowed avoidance as a remedy against fraudulent claim. However, recent English courts have recognized the remedy, avoidance ab initio, is a draconian remedy as a remedy after the conclusion of insurance contract. As a result, Mance LJ in the Aegeon case rejected the application of the doctrine of utmost good faith in context of fraudulent claim. Secondly, There is no doubt that the claim of assured is forfeited in connection with a fraudulent claim. The assured is, therefore, forfeited claim with regard to the part of fraudulent claim, as well as the part of genuine claim. Thirdly, Mance LJ in the Aegeon and Axa cases applied the public policy rule which is a rule in common law and he proposed remedies against fraudulent claim which have current and prospective effect, the termination of contract. Finally, there is still some uncertainty in context of the rule and the consequences of fraudulent claim in English case law. It is not sure in the present that the provisional result of Mance LJ in the Aegeon will be supported by subsequent case law and the Lord of House.