상해보험약관의 면책사유에 관한 연구 -개정논의와 상법 일부개정법률안을 중심으로-

Insurer's exceptions clause implies a certain reason for exempting insurer's responsibility for shouldering to claimant for insurance-money payment when risk covered occurs that is fixed by contract of insurance. Article 659, Clause 1 in the commercial law is placing limit upon a case that risk covered, which was fixed insurer's exceptions clause in contract of insurance, was created by party insuring or insured or by beneficiary's intention or gross negligence. The reason is because a case of leading to risk covered due to intention or gross negligence in party insuring not only is lacking in contingency as risk covered, but also is opposed to the Doctrine of Good Faith and Sincerity ․ good public order and customs. And, the text of Article 663 in the commercial law is prescribing so that the insurer cannot allow disadvantageous contents to party insuring to be included in contract of insurance with special clause. By the way, Article 732-2 in the commercial law pertinent to life insurance is prescribing the possibility of being protected from insurance even in case of risk covered due to gross negligence in party insuring. In other words, the insurer can be exempted from responsibility only in a case that risk covered occurred due to intention in party insuring. Also, Article 739 in the commercial law pertinent to accident insurance is applying the provisions on life insurance except Article 732 in the commercial law pertinent to accident insurance. Accordingly, even in case of accident insurance, the insurer bears responsibility same as life insurance for risk covered due to gross negligence in party insuring. By the way, the conventional clauses of self-body accident insurance and accident insurance in insurance company were prescribing it to be exempted in case of risk covered due to unlicensed driving and drunk driving. Regarding this, the Supreme Court judged that even gross negligence is protected by insurance, thereby having denied the effect of Exceptions clause in the clauses of accident insurance. Also, the Constitutional Court supported the precedent of the Supreme Court by ruling that the bill is constitutional in case of requesting violation of the constitution in Article 732-2 of the commercial law. The precedent in the Supreme Court and the decision in the Constitutional Court were raised strong criticism. In other words, the precedent in the Supreme Court and the decision in the Constitutional Court are said not only to encourage unlicensed driving․drunk driving, which are criminal behaviors and have high risk, but also to be opposed to insurance principle of having proposition as contingency in accident. For this reason, the Partially Revised Bill of the Commercial Law was submitted to the National Assembly on August 6, 2008. Consequently, this study aims to suggest a plan for legislation by examining the Exceptions clause of accident insurance, and the process of development in discussion in the meantime about this, and by examining the contents in the Partially Revised Bill of the Commercial Law.