신종 책임보험에 대한 시론(試論) -특허침해배상책임보험에 대한 연구

Patent Litigation Insurance Policy is a insurance contract between the insurer and the insured on the coverage of the damages and defense cost associated with the patent infringement litigation. Up to now this sort of insurance policy is not popularly utilized in Korea. Under the Korean circumstances, this insurance policy could be a mechanism to enhance the reimbursement of the damages to the patent holders. However, this insurance policy may be misused due to the moral hazard and adverse selection of the alleged patent infringers because they may lessen the level of care needed to avoid becoming a patent infringer. For this purpose, upper ceiling to the insurance monetary coverage, coinsurance, and exclusion clause would be the tools for curbing the alleged patent infringers' incentive to behave immorally. Especially, intentional patent infringers have to be excluded from taking advantage of the insurance coverage. When the insurer is obliged to defend the insured(=duty to defend), the settlement cost has to be included as part of damages to be covered by the insurance. In this case, the insurer has to settle the case in good faith considering the interest of the insured. In contrast, where the insurer does not have any duty to defend, the insurer can limit the burden of payment in a reasonable amount when the limit is expressly written in the standard insurance contract. Currently, in case of insurance for legal expenses in which part of the insurance premium is paid by the KIPO as policy insurance, it needs to become the insurance with a commercial incentive even when governmental involvement no longer exists. In this respect, we should give serious consideration to the establishment of a proper insurance premium.