보험계약에 있어서의 신의성실의무

The Revised Bill of Korean Commercial Act s. 638 (2) provides "The parties of insurance contract should be based on the utmost good faith in the conclusion of the insurance contract, exercise of the rights and execution of the duties." This article comes from the English Insurance Law. In England, Marine Insurance Act s. 17 provides "Insurance is utmost good faith," the court in "Litsion Pride(1985)" case reconstructed s. 17 , and held that the insured was indebted to the duty of good faith such as not to do fraudulent claims. Until recently, "The Star Sea(2001)" case in the House of Lords, "The Aegeon(2002)" case etc have examined the doctrine. But although the duty of good faith is mutual, too great a focus is placed on bad faith by the insured, without corresponding controls on insurer bad faith. In U.S, the court has widely awarded punitive damages against insurance company's fraudulent practices, and the reciprocality of the duty to observe good faith is realized to some degree. And Australian Insurance Contract Act(1984) s. 13 provides "A contract of insurance is a contract based on the utmost good faith and there is implied in such a contract a provision requiring each party to it to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith." The paramountcy of the duty in the relationship the parties dictates that when the strict application of a consensual term and application of the statutory implied term of utmost good faith conflict, the latter must prevail. The aim at amending Insurance Contract Act are the modernization and insurance consumer's protection. And so, the author suggests that The Revised Bill of Korean Commercial Act s. 638 (2) must be revised to broaden the measure of the person who is faithful to the duty, and to change the expression of the clause according to Korean Civil Act s. 2(1).