고지의무위반으로 인한 보험계약해지와 인과관계부존재에 관한 검토 (대법원, 2010. 7. 22. 선고, 2010다 25353 판결을 중심으로)

This paper deals with the Supreme Court Judgement that is No. 2010 da 25353 dated July 22, 2010. The potential parties are obliged to disclose material fact which they know about the risk to each other before the contract is concluded. If the insurer breaches the duty of disclosure, the insured can terminate the contract withen the period of exclusion. If the insurance accident is occurred, the insured can terminate the contract insurance and refuse the payment of the insured amount on the ground of the violation of the duty of disclosure, but when the violation of the duty of disclosure can not affect the occurrence of the insurance accident, that is not possible. There are disputes about the issues that the nonexistence of the casual relationship between the violation of the duty of disclosure and the occurrence of the insurance accident is the ground of contract termination or not. The Supreme Court had maintained for a long time that the nonexistence of the cause and effect relationship is not the grounds of contract termination. But that opinion has several defects. The Supreme Court has changed its earlier claim in the judgement that is No. 2010 da 25353, and supported that the nonexistence of the causation is proved, the claim can be paid, and the contract can be terminated for the reason of the violation of duty of disclosure. The article 651 of the Korean Commercial Code is not mentioned that the nonexistence of the causation is the restraint of contract termination. Therefore, The Supreme Court Decision is reasonable.