해상보험에 있어 담보특약 법리의 변화와그 시사점에 관한 연구 - 2015년 보험법과 1906년 해상보험법을 중심으로 -

Warranties found in marine insurance where the governing law is designated as the English law is a kind of contractual device to prohibit the alteration of the risk that an insurer to undertake, by requiring an insured to comply with certain things during the period of insurance. Thus, should any breach of warranty by the insured exist, the insurer’s liability is automatically discharged from the time of the breach of warranty, regardless of whether it is material or whether it has casual connection with loss. However, the strict application of warranties has attracted many criticisms from business and academic circles with the result that the UK Law Commission reformed warranties through the enactment of the Insurance Act 2015. According to the Insurance Act 1905, the so-called basis of contract clause which converts mere representation in the proposal into warranty is abolished. And if the insured breaches a warranty, the insurer’s liability is suspended until the breach is remedied, but he is liable for the loss, provided the insured proves that the breach could have not increased the risk of the loss that actually occurred. Nevertheless, the Insurance Act 2015, taking into account the principle of private autonomy between parties, permits the warranties to return to the present legal principle, provided transparency requirements are satisfied. Considering that the maine insurance clauses which set the English law as the governing law prevail in Korea, it is very important to understand the changed legal principle of warranties in marine insurance through the comprehensive interpretation on the relevant clauses of Marin Insurance Act 1906 together with the contents reformed in the Insurance Act 2015.