告知義務制度의 體系的 解釋에 관한 立法論的 考察

If the test is whether the matter would have been taken into account by the hypothetical prudent insure when assessing the risk, the insured have to voluntarily disclose every material facts to the insurer which is known to him. If this is the case, the insured also have to disclose every material circumstances which is not known to him, but what the prudent insurer may have interest in assessing the risk. In Korea, however, the generally accepted views are that the prudent insurer determines the materiality of facts which should be represented to him, in the meantime the assured do not need to disclose every material circumstances which he did not know. Therefore, an actual assurd should disclose every material facts that the reasonable or prudent assurd may disclose to the insurer. In this regard, when an actual assured did not disclose circumstance which the reasonable assured was supposed to disclose, the insurance can be avoided. By the way, if the prudent assured is the final arbiter of what should be disclosed to him, the material facts which must be disclosed are every circumstance that the insurer may want to know when the insurer assesses the risk, not the matters which would influence the judgment of a prudent insurer in fixing the premium, or determining whether he will take the risk. Section 651 of the Korean Commercial Code (hereunder, 'KCC') requires intention or gross negligence of the insured for the avoidance of the insurance policy. In practice, however, it is not always obvious whether there is the insured's gross negligence or not. Whilst other contracts need the causational relation between inducement of a party of the contract and the conclusion of contract, Section 651 of the KCC does not stipulate the misrepresentation or non-disclosure must have influenced the actual underwriter in order to give rise to a right to avoid the policy. It means that even if the actual assured's misrepresentation or non-disclosure did not influence the actual insurer to make insurance contract, the actual insurer can avoid the contract. In order to remove the said unreasonableness, the inducement between non-disclose or misrepresentation and the conclusion of the insurance contract must be proved for the avoidance of the insurance contract with the expanded interpretation of Section 651 of the KCC.