고지의무위반에 있어서 중과실의 의미 및판단기준 대법원 2013. 6. 13 선고 2011다54631 판결에 대한 평석

This study analyzed and researched the ruling of the Supreme Court Casethat dealt with the issue of the meaning and criteria for judgment of grossnegligence of policyholder etc. in the duty of disclosure and whereabouts ofburden of proof of gross negligence and the degree of duty of disclosure incase the insured and the policyholder are not an identical person. This case is about the fact that an insurance contract was concluded bythe policyholder and his representative who were living away from theinsured but the policyholder etc. did not know about the diagnosis ofthyroid nodule of the insured at that time and the insurance contract wasconcluded while the policyholder did not disclose this fact of the diagnosis. Then in this time, breach of duty of disclosure by the policyholder etc. canbe admitted? About the above, the ruling of the Supreme Court was that incase an insured and a policyholder are not an identical person, in principle,even if the policyholder did not actively confirm and disclose to the insurerthe matters about the personal physical condition of the insured that personswho are not the insured himself cannot exactly know of as far as there arenot special circumstances it is not straightaway admitted as a grossnegligence. Recently, the trends of the legislation of various countries forthe system of duty of disclosure are changing active duty of disclosure intopassive duty of answer that answers the questions of insurer. Namely, theduty of disclosure which was the duty of spontaneous disclosure is reducedand limited to duty of passive answer. In this aspect, it is necessary to revise the system of duty of disclosure inour commercial law to duty of passive answer. The ruling of the SupremeCourt is thought to be adequate in consideration of the trend of makingduty of disclosure passive.