자살의 경우 재해특약에 의한 재해사망보험금 지급 여부(대법원 2016. 5. 12. 선고 2015다243347 판결에 대한 평석)

1. The relevant clause in the Accidental Riders has two main parts. First, there is an exception of insurer’s liability for cases of self-harm, including suicide(hereinafter referred to as “exemption clause”). Second, and more important, there is an exception to the exemption clause in cases of suicide occurring two years after the commencement date of liability under the Accidental Riders(hereinafter referred to as “exeption clause”)(the exemption clause and the exeption clause, when read together, hereinafter referred to as “suicide clause”). In this case, the plaintiffs asserted that the defendant(insurance company) should pay the accidental death benefit on the legal ground of the exception clause of the accidental riders. But the defendant argued that he needs not to pay the accidental death benefit, because the suicide is not the accidental death and the exeption clause of the suicide clause is added by the defendant’s mistake. In my opinion, the defendant should pay the accidental death benefit to the plaintiffs, because the exception clause is the special agreement between both parties of insurance contract even though the suicide is not the accidental death. Moreover, as the Act Regulating General Conditions of Contracts(allgemeine Geschaeftsbedingungen) requires that the ambiguous clause(the suicide clause) should be interpreted in favour of the insured parties, the defendant cannot argue that the exeption clause of the suicide clause is added by his mistake. Therfore, I support Korean Supreme Court’s decision in this case. 2. Korean Commercial Code(hereinafter referred to as K.C.C.) Article 662 and issurance policy in this case specify only the length of the limitation period, not the base date. Then, as Article 1 of K.C.C. provides that “where K.C.C. dose not provide for a particular commercial matter, Korean Civil Code shall apply”, the base date for calculating the expiration of the benefit claim right should be considered as the day when claim right becomes exercisable under Korean Civil Code Article 166 Paragraph 1. There are conflicting views as to “when the benefit claim right becomes exercisable.” Namely, the time when the benefit claim right becomes exercisable is considered as either (ⅰ) the time when the risk covered(the insured event) occurs, or as an exception, the time when the insured or beneficiary knew or could have known the occurrence of the risk covered unless the insured or the beneficiary failed to learn of the risk covered because of negligence on their parts, or (ⅱ) (a) in case where the term for the payment of insurance benefits is specified, the next day immediately following the last day of such term, and (b) in case where such payment term is not specified, 10 days from the day when the insurance company determines the amount of benefits immediately after being notified by the beneficiary of the occurrence of the risk covered(reference to K.C.C. Article 657, 658)(if there were circumstances where the beneficiary, without his or her negligence, could not know of the occurance of the risk covered, the limitation period runs from the date when he or she knew or could have known of the occurrence of the risk covered). Korean Supreme Court’s precedents take the view in (ⅰ) above. But I take the view in (ⅱ) above, because the view in (ⅱ) above is more faithful interpretation to the expressions in K.C.C. Articles 657, 658, and such interpretation is more favorable to the insurance consumers. In my view, the insurer who breached its obligation to provide an explanation on important terms and conditions of the policy, and failed to give an explanation of the beneficiaries’ rights under the accidental death rider, is not permitted to argue the limitation period defence, because it constitutes an abuse of right against the principle of good faith under Korean Civil Code Article 2. Therefore, I do not agree the established Korean Supreme Court’s precedents and the district court’s decision in this case relating to the base date of extinctive prescription.