상해보험의 법적 쟁점에 관한 연구

Korea has seen the market of personal accident insurance (PA insurance) growrapidly in recent years. This is mainly because of the increasing number of cars contributingto the rise of personal accident risks. The Commercial Code of PA insurance, in contrast, has noticed few changes sinceits enactment. Legislated in 1962, the Commercial Code included three articles aboutPA insurance. The article 737 is about defining PA insurance, the article 738 prescribesmatters to be mentioned on the PA insurance certificate, and article 739 providesthat articles as to life insurance excluding the article 732 apply mutatis mutandisto PA insurance. The only revision of the Commercial Code of PA insurancewas establishing the proviso of the article 729 in 1991, which allows subrogation inthe area of PA insurance when both parties to the contract agree to it. TheCommercial Code of insurance was completely reformed in 2014, but much to ourregret, it did not cover PA insurance at all. It has been criticised that current Commercial Code of PA insurance does notproperly mirror the characteristics of PA insurance. It is mainly due to the Codesimply applying articles about life insurance mutatis mutandis to PA insurance ratherthan establishing its own independent domains. Therefore, it is now necessary to interpretand revise the articles of PA insurance according to the attributes of PAinsurance. In this sense, this paper discusses five controversial issues. The first is how to define the legal nature of personal accident death insurance(PAD insurance). This insurance contains not only the element of personal accidentbut also the element of death. Some classify PAD insurance into PA insurance stressing the element of personal accident. However, it has been suggested that PADinsurance be categorized as death insurance, because the current Commercial Code isinterpreted to put a bigger emphasis on the element of death when both elementsconflict. The second is whether to require the insured’s consent in PA insurance when thepolicyholder and the insured are not identical although the insured and the beneficiaryare the same. The article 731 about life insurance stipulates such an assent regardlessof whether or not the insured is identical with the beneficiary. It needs tobe interpreted that such a consent is unnecessary when the insured has also the statusof the beneficiary. It is because the insured of PA insurance is kept alive afterthe occurrence of personal accident and enjoys the insurance money for the sake ofhimself. The third is whether to permit PA insurance when the insured and the beneficiaryare not the same. The Commercial Code of life insurance does not require that theyare the same. However, if the beneficiary has no economic interest in the insured’spersonal accident, this type of insurance may fall into a gamble. Therefore, it hasbeen suggested that the above PA insurance be allowed when the beneficiary hassome economic interests in the insured’s personal accident. The fourth is about the interpretation of the proviso of the article 729 of theCommercial Code which admits subrogation when both parties to PA insurance contractagree to it. There is no doubt that subrogation is possible in the area ofloss-compensating PA insurance. The question is whether to allow it even infixed-amount-compensating PA insurance. The answer should be negative, consideringthat the basis of subrogation is prevention of gains. The final is whether to apply dual insurance rules to PA insurance. TheCommercial Code provides such rules for general insurance but not life or personalaccident insurance. It is suggested that such rules be applied to loss-compensatingPA insurance through analogical interpretation. It is because general insurance andloss-compensating PA insurance are the same in loss compensation, and dual insurancerules relate to it. We need to reform the current Commercial Code of PA insurance by way of reflecting the above interpretations. So we hope to resolve legal uncertainties about PAinsurance contracts.