피보험자의 서면동의 철회 입법에 관한 검토

Commercial act art.731 provides that a contract of insurance which covers the death of a third person as an insured event shall require the written consent of the third person at the same time as the insurance contract is concluded. This provision also can be applied if the rights arising from the contract of insurance have been transferred to the person other than the insured, and mutatis mutandis to the designation and change of the beneficiary. A purpose of the legislation is to prevent moral risk, infringement of personal rights, and gambling of insurance contract. Many countries’ insurance contract law adopts this rule but do not enact whether the insured have the power to withdraw the consent or not. According to the common view, it might be interpretated that the insured can withdraw the consent before it gets concluded, but cannot withdraw consent of the concluded contract without the consents of the policyholder and beneficiary. However, the Supreme Court Decision (2011Da81190, 81206 decided on September 14, 2013) reached an opposite conclusion. Only Japanese insurance Act has a provision (§37,) to solve this issue. The writer introduce the content of the concerned provisions and legal issues and expect to lively discussion in our academia