제1장 2015년 보험법의 배경
Ⅰ. 개관 ··················································································································· 1
Ⅱ. 영국에서 보험법개정의 최근 연혁 ································································· 2
1. 1980년 이전 ·································································································· 2
2. 1980년 보고서 ······························································································· 3
3. 1980년 이후 ·································································································· 4
Ⅲ. 2000대의 개혁 ································································································· 5
Ⅳ. 구법의 문제점 ·································································································· 6
Ⅴ. 신의성실의무와 취소 ······················································································· 6
1. 고지의무의 성질 ···························································································· 6
2. 고지의무위반의 효과 ···················································································· 8
Ⅵ. 워런티와 기초조항 ··························································································· 8
1. 워런티 위반 ··································································································· 8
2. 기초조항 ········································································································· 9
Ⅶ. 사기적 보험금청구 ··························································································· 9
Ⅷ. 보험금 지급지체로 인한 손해배상 ······························································· 11
Ⅸ. 의회에서 보험법의 제정 ················································································ 12
Ⅹ. 해석보조자료: 입법이유서와 법률개정위원회의 문서 ································ 13
1. 개관 ·············································································································· 13
2. 법률개정위원회의 문서 ··············································································· 14
3. 입법이유서 ··································································································· 15
제2장 2015년 보험법의 적용범위 ·········································································· 17
Ⅰ. 2015년 보험법의 적용범위에 관한 규정 ···················································· 17
Ⅱ. 시행시기 ·········································································································· 18
1. 시행일 ··········································································································· 18
2. 적용예 ··········································································································· 19
3. 보험계약의 변경 ·························································································· 19
4. 보험과 재보험, 재재보험 ············································································ 20
5. 보험계약이 체결되는 시기 ········································································· 21
Ⅲ. 적용지역-영국 ································································································ 23
1. 적용지역 ······································································································· 23
2. 적용지역의 범위 ·························································································· 23
Ⅳ. 소비자보험과 비소비자보험에의 적용 ·························································· 24
1. 소비자보험, 비소비자보험에 적용 ····························································· 24
2. 소비자보험과 비소비자보험의 구별 ·························································· 24
3. 소비자보험과 비소비자보험의 특징 ·························································· 26
4. 보험계약자의 주관적 의사와 객관적 의사 ··············································· 26
5. 영업, 거래, 직업의 의미 ············································································ 27
6. 소비자계약과의 구별 ··················································································· 27
제3장 공정한 제공의무 ···························································································· 29
Ⅰ. 개관 ················································································································· 29
1. 1906년 해상보험법 ····················································································· 29
2. 2012년 소비자보험(고지의무)법 ································································ 29
3. 2015년 보험법상 공정한 제공의무의 연혁 ·············································· 29
4. 2015년 보험법 제3조의 규정 ···································································· 30
Ⅱ. 의무자 ·············································································································· 31
1. 개관 ·············································································································· 31
2. 피보험자가 다수이거나 공동보험의 경우 ················································· 32
3. 보험중개사의 고지의무의 폐지 ·································································· 33
4. 보험자의 신의성실의무 ··············································································· 34
Ⅲ. 고지사항 ·········································································································· 34
1. 불고지 ··········································································································· 34
2. 부실고지 ······································································································· 38
3. 불고지와 부실고지의 구별 ········································································· 41
Ⅳ. 제공시기와 제공내용 ····················································································· 42
1. 제공시기 ······································································································· 42
2. 제공내용 ······································································································· 44
Ⅴ. 고지방법: 합리적으로 명백하고 접근가능한 고지 ······································ 45
1. 입법의도 ······································································································· 45
2. 보험중개사협회 등의 지침 ········································································· 47
3. 보험자의 고지면제의 문제 ········································································· 47
Ⅵ. 보험자에 대한 추가질문경고 ········································································· 48
1. 개관 ·············································································································· 48
2. 구법과의 차이 ······························································································ 49
3. 보험자가 질문하지 않은 경우 ···································································· 50
Ⅶ. 고지대상 ·········································································································· 51
1. 개관 ·············································································································· 51
2. 사실, 의견, 신념 ························································································· 51
3. 명시적 또는 묵시적 워런티 ······································································ 52
Ⅷ. 고지의무의 면제 ····························································································· 53
1. 개관 ·············································································································· 53
2. 내용 ·············································································································· 53
제4장 보험계약자와 보험자의 인식 ········································································ 55
Ⅰ. 총설 ················································································································· 55
Ⅱ. 보험계약자의 인식 ························································································· 56
1. 서언 ·············································································································· 56
2. 보험계약자가 개인인 경우 ········································································· 59
3. 보험계약자가 단체인 경우 ········································································· 60
4. 개인과 단체 공통 사항 ··············································································· 64
Ⅲ. 보험자의 인식 ································································································· 83
1. 개관 ·············································································································· 83
2. 보험자의 인식사항 ······················································································ 85
3. 보험자의 인식간주사항 ··············································································· 86
4. 보험자의 인식추정사항 ··············································································· 91
5. 비밀정보 ······································································································· 96
Ⅳ. 추가적 인식간주사항 ····················································································· 97
1. 2015년 보험법 제6조의 규정 ···································································· 97
2. 내용 ·············································································································· 97
Ⅴ. 대리인의 사기 ································································································· 98
제5장 공정한 제공의무 위반의 효과 ···································································· 101
Ⅰ. 보험자의 구제수단의 다양화 ······································································ 101
1. 공정한 제공의무 위반의 효과에 관한 2015년 보험법의 규정 ············· 101
2. 구제수단의 다양화 ···················································································· 104
Ⅱ. 유인 ··············································································································· 106
Ⅲ. 제한 있는 위반 ····························································································· 108
Ⅳ. 고의 또는 중과실로 인한 위반 ··································································· 108
1. 의의 ············································································································ 108
2. 보험계약자의 인식과의 구별 ··································································· 109
3. 위반의 효과 ······························································································· 109
Ⅴ. 고의 또는 중과실로 인하지 아니한 위반 ·················································· 110
1. 개관 ············································································································ 110
2. 취소 ············································································································ 111
3. 계약조건의 변경 ························································································ 113
4. 보험금의 비율적 감액 ··············································································· 115
5. 추가 구제수단 ···························································································· 116
Ⅵ. 변경에의 적용 ······························································································ 118
1. 개관 ············································································································ 118
2. 고의 또는 중과실로 인하지 아니한 위반의 경우 변경과의 차이 ········ 118
3. 내용 ············································································································ 119
Ⅶ. 구제수단의 행사시기 ··················································································· 122
Ⅷ. 동법상의 구제수단의 적용예 ······································································ 122
Ⅸ. 공동인수와 초과전보에의 적용 ··································································· 123
1. 서언 ············································································································ 123
2. 공동인수 ····································································································· 123
3. 초과전보 ····································································································· 126
제6장 워런티 ··········································································································· 129
Ⅰ. 워런티제도 개혁의 배경 ·············································································· 129
1. 서언 ············································································································ 129
2. 기초조항의 폐지 ························································································ 131
3. 워런티조항의 수정 ···················································································· 133
Ⅱ. 2015년 보험법상의 워런티 ········································································· 134
1. 워런티의 정의 ···························································································· 134
2. 워런티의 효과 ···························································································· 135
Ⅲ. 보험자의 면책 ······························································································ 136
1. 보험자의 책임정지기간 ············································································· 136
2. 워런티 위반 치유 전 손해의 면책(제10조 제2항) ································· 136
Ⅳ. 워런티 위반 이전 그리고 그 치유 이후 손해에 대한 보험자의 책임 ···· 140
1. 서언 ············································································································ 140
2. 워런티 위반 이전의 손해 ········································································· 140
3. 워런티 위반의 치유 이후 손해 ································································ 141
Ⅴ. 2가지 유형의 워런티 ··················································································· 141
1. 서언 ············································································································ 141
2. 시간관련 워런티 위반의 치유 ·································································· 142
3. 일반적 워런티 ···························································································· 147
4. 과거 사실 또는 현재 사실의 워런티 ······················································ 150
Ⅵ. 책임에 대한 사전조건 ·················································································· 153
1. 재검토필요성 ····························································································· 153
2. 내용 ············································································································ 153
3. 사례 ············································································································ 154
4. 소결 ············································································································ 155
Ⅶ. 워런티 위반의 면제 ····················································································· 156
제7장 실제위험과 무관한 조건 ············································································· 157
Ⅰ. 서언 ··············································································································· 157
Ⅱ. 2015년 보험법 제11조의 규정내용과 개정연혁 ······································· 159
1. 2015년 보험법 제11조의 규정내용 ························································· 159
2. 개정연혁 ····································································································· 160
Ⅲ. 전체로서 위험을 정의하는 조건(제11조 제2항) ······································· 170
1. 개관 ············································································································ 170
2. 제11조의 적용제외 이유 ·········································································· 170
3. 내용 ············································································································ 171
4. 평가 ············································································································ 175
Ⅳ. 면책조항 ········································································································ 175
1. 제11조와 면책조항 ···················································································· 175
2. 면책조항에 제11조 적용요건 ··································································· 176
Ⅴ. 제11조가 적용되는 위험감소조건 ······························································· 178
1. 위험감소조건 ····························································································· 178
2. 위험감소조건과 전체적인 위험정의조건의 겸유의 경우 ······················· 178
Ⅵ. 제11조의 손해에 무관한 조건에 대한 효과 ·············································· 179
1. 개관 ············································································································ 179
2. 내용 ············································································································ 180
Ⅶ. 제11조 제3항의 적용사례 ··········································································· 182
1. 사례 ············································································································ 182
2. 소결 ············································································································ 184
Ⅷ. 제10조와 제11조의 상호작용 ····································································· 185
Ⅸ. 영국보험법 제11조의 위험의 증가와 손해사이의 인과관계에 관한
우리법에의 시사점 ······················································································· 186
1. 문제의 소재 ······························································································· 186
2. 입법례 ········································································································ 187
제8장 임의규정성 ··································································································· 191
Ⅰ. 개관 ··············································································································· 191
Ⅱ. 소비자보험과 비소비자보험 ········································································ 196
1. 소비자보험과 비소비자보험의 의미 ························································ 196
2. 소비자보험계약에서 임의규정화 ······························································ 196
3. 비소비자보험계약에서 임의규정화 ····························································· 196
Ⅲ. 불리한 조건 ·································································································· 198
1. 서언 ············································································································ 198
2. 불리한 조건의 예 ······················································································ 198
3. 불분명한 예-공정한 제공의무관련 보험계약자의 인식간주의 경우 ···· 199
Ⅳ. 투명성요건 ···································································································· 200
1. 개관 ············································································································ 200
2. 제1요건: 조건에 주의하기에 충분한 단계 ·············································· 201
3. 제2요건: 효과가 명확할 것 ······································································ 207
Ⅴ. 단체보험 ········································································································ 211
Ⅵ. 우리법에의 시사점 ······················································································· 213
1. 소비자보험과 비소비자보험의 구별기준 ················································· 213
2. 투명성요건 ································································································· 217
제9장 사기적 보험금청구 ······················································································ 219
Ⅰ. 입법배경 ········································································································ 219
1. 사기적 보험금청구에 관한 2015년 보험법의 규정 ······························· 219
2. 개관 ············································································································ 219
3. 구법의 지위 ······························································································· 220
4. 2015년 보험법의 내용 ·············································································· 223
Ⅱ. 사기적 보험금청구에 관한 2015년 보험법의 규정 ·································· 224
1. 보험금청구에 대한 사기의 효과 ······························································ 224
2. 관련보험계약에 대한 사기의 효과 ·························································· 224
3. 사기적 보험금청구에 관한 2015년 보험법의 예상되는 영향 ··············· 232
Ⅲ. 기업보험의 경우 임의규정성 ······································································ 234
Ⅳ. 단체보험 ········································································································ 234
1. 단체보험에서 사기적 보험금청구에 관한 2015년 보험법의 규정 ······· 234
2. 내용 ············································································································ 235
Ⅴ. 우리법에의 시사점 ······················································································· 236
1. 손해보험에서 피보험자의 협조의무 ························································ 236
2. 우리법상의 사기적 보험금청구에 관한 판례의 동향 ····························· 237
3. 일본 ············································································································ 238
4. 소결 ············································································································ 240
제10장 보험금지급 지체의 효과 ··········································································· 241
Ⅰ. 보험금 지급지체로 인한 보험자의 책임 ···················································· 241
1. 보험금지급 지체에 관한 보험법의 규정 ················································· 241
2. 개정배경 ····································································································· 242
3. 개정과정 ····································································································· 244
4. 2016년 기업법 제5부의 개정내용 ··························································· 245
Ⅱ. 적시에 보험금을 지급할 묵시적 조건 ························································ 245
Ⅲ. 상당한 기간 안에 지급할 의무(2015년 보험법 제13A조 제2항, 제3항) ··· 246
1. 서언 ············································································································ 246
2. 상당한 기간의 산정시 고려요소 ······························································ 246
Ⅳ. 보험금 청구분쟁(제13A조 제4항) ······························································· 252
1. 서언 ············································································································ 252
2. 고려요소 ····································································································· 253
3. 객관적인 평가 ···························································································· 253
4. 변호사의 자문의 경우 ··············································································· 254
5. 증명책임 ····································································································· 255
Ⅴ. 손해배상청구권 ····························································································· 255
1. 개관 ············································································································ 255
2. 손해배상청구권 ·························································································· 256
3. 손해배상책임의 독립성 ············································································· 259
4. 소멸시효 ····································································································· 259
Ⅵ. 재보험 ··········································································································· 260
Ⅶ. 임의규정성 ···································································································· 262
1. 서언 ············································································································ 262
2. 내용 ············································································································ 262
3. 추가적 쟁점 ······························································································· 263
Ⅷ. 시사점 ··········································································································· 263
1. 현행법의 입장 ···························································································· 263
2. 영국 이외의 비교법적 검토 ····································································· 264
3. 소결 ············································································································ 265
제11장 신의성실의무 ······························································································ 267
Ⅰ. 서언 ··············································································································· 267
1. 신의성실의무에 관한 2015년 보험법의 규정 ········································· 267
2. 개정배경 ····································································································· 267
3. 해석의 도구 ······························································································· 268
Ⅱ. 보험자의 신의성실의무 ················································································ 270
1. 서언 ············································································································ 270
2. 보험계약 체결 이전의 보험자의 신의성실의무 ······································ 272
3. 보험계약 체결 이후의 보험자의 신의성실의무 ······································ 276
Ⅲ. 보험계약자의 신의성실의무 ········································································ 279
부록-2015년 보험법(2016년 기업법 포함) ················································ 281
부록 1-보험자의 제한 있는 위반에 대한 구제 ········································· 294
부록 2-보험자에 대한 제3당사자의 권리: 보험관련자(생략) ·················· 296
참고문헌 ········································································································ 297
판례색인 ········································································································ 301