보험자 설명의무 및 약관설명의무의 내용분석과 개정방향에 관한 연구

Both Germany and Japan have recently revised the insurance contract law, focussing on expanding and reinforcement of insurer's duty to provide information in making insurance contract. This is the tendency of modernization of insurance law. In Korea, there is no specific insurer's duty to provide information. However, it can be replaced by the insurer's duty to explain. The insurer's duty to explain and insurer's duty to explain the clause of insurance are respectively prescribed in the Insurance Business Act and Insurance Law Part of Commercial Law and other relevant legislation. The contents of these laws are somewhat overlapped and the effects of breach of the duty to explain are different from each other depending on the legislation. The contents of the provisions as regarding the insurer's duty to explain, which are related with the rights and duties in insurance contract, are required to be combined together, making a single provision about the insurer's duty to explain including the insurer's duty to explain clause of insurance in the part of insurance law in Korean Commercial Law. To do this, the deletion of the relevant provisions in Insurance Business Act is precondition. Otherwise, the insurer could be doubly regulated. At the same time, the amendment of the provision of insurer's duty to explain clause of insurance is strongly required. First of all, the time to perform the duty to explain the clause of insurance should be changed to the time of subscription. This is for the protection of insurance consumers. Also the insurer's duty to explain should be recognized throughout the period of insurance contract, both before making the insurance contract and after making the insurance contract. The starting time of reckoning of period of exclusion for the policyholder's right of cancellation should be changed to the time when the policyholder receives the insurance policy. It is right to extend the period for exercise of the policyholder's right of cancellation to 3 month. However, it seems reasonable to make some exceptions to this extension for the short term insurance contract within 1 year and the mandatory insurance by law and regulation. In addition, it is required to explicitly proscribe the decision of Korean Supreme Court, which the provisions of the clause of insurance which are not explained by the insurer are not included in the provisions of the contract as effect of breach of the duty to explain clause of insurance, in order to effectively cut off the unnecessary dispute between the insurers and consumers.