詐欺的 保險金請求 - 商法 保險編 改正案 批判 -

Insurance fraud is a growing problem in which the number of fraudulent claims is increasing, and the nature of fraudulent claims is both expanding, and becoming increasingly intricate. A fraudulent claim exists where the insured claims, knowing that he has suffered no loss, or only a lesser loss than that which he claims or is reckless as to whether this is the case. A fraudulent device is used if the insured believes that he has suffered the loss claimed, but seeks to improve or embellish the facts surrounding the claim, by some lie. The revised Korean Commercial Act includes the fraudulent claim clause, and the effect is that where an insured knowingly and willfully overestimates in his or her proof of loss the value of the property destroyed, with the intention of deceiving the insurer, such overvaluation will avoid the policy and defeat any claim of the insured to recover thereon. The emphasis is on intention and knowledge as to the falsity; the motive for making the overvaluation is not relevant. This thesis studies the grounds and justification of the clause. Will a fraudulent claim bring the insurance contract to an end? In other words, can insurersrefuse to pay a legitimate claim that is made subsequent to that which is held to be fraudulent? Should the opportunity not arise for the courts to provide definitive guidance in the near future, it is hoped that the Law Commission’s proposed re-examination of insurance contract law will grasp the nettle. It has been held that an intentional overvaluation is not material where the actual loss exceeds the total insurance coverage since such overvaluation does not prejudice the insurer and, therefore, does not prevent recovery on the fire policy. An insured’s fraud in including numerous items of unscheduled personal property on inventory list which were not at his or her house when the fire occurred was material and voided entire policy, even though insured’s actual personal property loss exceeded unscheduled personal property policy limits. The fraudulent claims rule does nothing to deter those who entirely fraudulent claim. Not only is the threat of criminal sanction present\, but also the underwriter cannot be called upon to meet such a claim even without additional rule. If a disproportionate rule will be introduced on the grounds of deterrence, then insurer bad faith would need to be similarly deterred.