상법 개정안 중 손해방지의무 관련규정에 관한 검토

Insured's or insurance policyholders' duty to sue and labour can be acknowledged on the basis of gambling contractual feature of insurance, protection of public interest, and demand of good faith. It is first provided in the Marine Insurance Act 1906. Duty to sue and labour is legal duty, but it is not duty in the usual sense of private law obligations actionable in damages. A breach of duty by a insured or policyholder breaks the chain of causation between the insured event and the resulting loss and to that extent insurers are not liable. In principle, this duty imposed on insured or policyholder after the insurance accident happened. Insured or policyholder should exert ordinary prudence such as uninsured man would use under same circumstances, only to accident that can be admitted for subject-matter of insurances. Breach of this duty with intention or gross negligence makes insured or policyholder not to exercise insurance claims. In this case, insurer should prove the intention or gross negligence of insured or policyholder. Sue and labour expenses must be the expenses that insured or policyholder paid, that occurred after the accident's happening, that can be admitted for loss of subject-matter of insurance, and that should be necessary or beneficial for averting or minimizing the damages. In averting or minimizing the loss, insurers' instruction is not sine qua non. The duty to defend can be distinguished from the duty to sue and labour, also the defend expenses is different from sue and labour expenses in terms of each coverages. The Korean Commercial Law revision plan 2008 provisions relevant to duty to sue and labour have some problems. First, duty to sue and labour should be acknowledged when the accident's imminent dangers happens or when accident's occurrence is worried after completion. Second, duty to sue and labour is 'indirect duty'. So in case of breaches of this duty by intention or gross negligence, the effects of breaches should be incapacity of insured or policyholder to request for damages to that extent, and should not be capacity of insurer to setoff. Third, in averting or minimizing the loss, insurers' instruction is not sine qua non. And the expenses that exceeds the sum of sue and labour expenses and rewards are not in insurance's coverages.