고지의무 위반시 보험자의 해지권 불행사와 손해방지의무 위반－ 대법원 2016. 1. 14. 선고 2015다6302 판결 －

In this case, the insured of original insurance contract had breach of duty of disclosure when he was contract with insurer. But the insurer did not terminate the original contract. After insurance accident occurred the plaintiff(insurer of original insurance contract) paid proceeds and claimed insurance money to the defendant(reinsurer). But the defendant refused to the remittance because the plaintiff did not exercise the right of termination to the original contract on the ground of breach of the duty of disclosure. The insurance contract is not necessary to become rescission of a contract just as the reason of the breach of the duty of disclosure. But in this case, the defendant insist that the nonuse of the insurer's right of rescission in original contract resulted in the breach of insured' s duty of avert or minimizing the losses. In other words, the reinsured did not exercise the right to terminate contract after occurrence of insured accident and consequently failed to prevent expansion of damage. In an action by the reinsured against to the reinsurer on the reinsurance contract, the reinsurer raised defense which was referred above. The Supreme court decided in favor of compliant on the ground that the breach of duty of avert or minimizing the losses requires the obligator's total negligence but in this case the complaint breached his duty with slight negligence and did not fulfill the requirement. But the writer concludes that the reinsured had breach his duty with gross negligence since he is the professional policyholder in the insurance contracts.