해상보험에서 담보특약과 약관규제법의 적용 - 대법원 2015. 3. 20 선고 2012다118846(본소), 2012다118853(반소)판결 -

In Korea, English law has been widely adopted as the governing law of marine insurance contracts, and the courts have upheld this practice. However, the contract terms often include clauses, especially the warranty, that violate Korean law and are unfavourable to the insured, and legal disputes over these matters have constantly arisen. In 2010, a significant Supreme Court judgment determined that the insurer has the obligation of explanation to apply domestic law in cases with a domestic factor even if English law was chosen as the governing law of the marine insurance contract. The explanation shall include the characteristics and/or effect of the warranty, not limited to the mere meaning of provisions. However, five years later, Supreme Court determined differently in a similar case regarding breach of the warranty, which is the subject of analysis in this research. This case is significant as the court determined that English law, instead of the provisions of Korean regulatory law, should be followed as the governing law in cases with a foreign factor between a Korean insurant and Korean insurer. The court distinguished this case from the precedent by determining that the domestic Act on the Regulation of Terms and Conditions should not be applied but English law should when a contract includes a foreign factor, even if the contract was made between a Korean insurant and Korean insurer. However, the effect of the warranty is still contested in the contract governed by English law. The ambiguity of legal relations also exists as the warranty has not been defined clearly in Korean commercial law. Therefore, legislation adding warranty-related provisions to Korean commercial law is necessary, and the court may apply Korean domestic laws to cases related to the warranty based on the circumstances. It is also necessary to revise marine insurance provisions in commercial law to align marine insurance practice in the field with global standards. In addition to the warranty, it is necessary to change the legal environment by revising the overall marine-insurance-related provisions to make them suitable for the changed transportation and economic environments and to encourage domestic parties to choose domestic law as the governing law for marine insurance contracts.