최근 한국 상법(보험편)의 개정내용에 관한 연구

The insurance contract law in Korean Commercial Code(hereinafter referred to as "K.C.C.") was reformed in March 11th, 2014(Law No. 12397)(the latest reformation in the insurance contract law) and is in force from March 12th, 2015(hereinafter referred to as "2014 Reform"). Several Articles in 2014 Reform should have been more deliberated in my view. I will comment on these matters as followings. 1. Article 646-2 of 2014 Reform is newly regulated about powers of insurance agent(including sales agent and marketing agent) and insurance salesman. But the power of insurance marketing agent is not precisely stipulated, and scholars are arguing the scope of the power of insurance marketing agent. I suggest that the power of insurance marketing agent should be clearly regulated differently from that of insurance sales agent in Article 646-2. Namely, the power of insurance sales agent should be regulated in Article 646-2 Paragraph 1, and that of insurance marketing agent should be regulated in Article 646-2 Paragraph 2 just like those of Government Amendment Draft of August 10th, 2007. 2. Article 662 of 2014 Reform extended the extinctive prescription period of the claim of the amount insured to 3 years from 2 years and extended that of the claim of premium to 2 years from 1 year. But the base date of the extinctive prescription period is not regulated yet. I suggest that the base date of the extinctive prescription period should be regulated with reference to K.C.C. Articles 657, 658. Namely, (ⅰ) the base date should be the next day immediately following the last day of such term in case where the term for the payment of insurance benefits is specified, and (ⅱ) the base date should be 10 days from the day when the insurance company determines the amount of benefits immediately after being notified by the beneficiary of occurrence of the risk covered in case where such payment term is not specified. But if there were circumstances where the beneficiary, without his or her negligence, could not know of the occurrence of the risk covered, the base date should be the date when he or she knew or could have known of the occurrence of the risk covered. 3. 2014 Reform deleted Article 735-2(Annuity Insurance) and regulated newly that the amount insured can be paid separately in all contracts of person insurance if the both parties(insurer and insured) makes such agreement in Article 727 Paragraph 2. But the word "as an annuity" should be inserted in Article 727 Paragraph 2 just like that of Government Amendment Draft of August 10th, 2007 in my opinion. 2014 Reform deleted Article 735(Endowment Insurance), because Article 730(Liability of Life Insurer) includes such insurance. But even in non-life insurance the insurer can pay the insured the insurance benefits(return of premium) in case that the duration of coverage terminates without occurrence of the risk covered. Therefore, 2014 Reform should have regulated the above mentioned case in non-life insurance in my view. 4. 2014 Reform allowed newly a feeble-minded person to effect the insurance and to consent as the insured in Article 732. But the above mentioned regulation should be deleted in order to protect such feeble-minded person. 5. 2014 Reform regulated newly that the assured(Versicherungsnehmer) making insurance contract in a group insurance should get the written consent of the insured in case he or she nominates as the beneficiary of the insurance contract any other person except the insured or his or her successor and there is no clear statement permitting insurance contract for himself or herself in the group regulation(K.C.C. Art.735-3 Para.3). In other words, the assured marking insurance contract in a group insurance should get the written consent of the insured in order to nominate himself or herself as the beneficiary of the insurance contract. But Korean Supreme Court decided that the assured in a group insurance can make insurance contract nominating himself or herself as the beneficiary under the Pre-2014 Reform, and Korean Constitutional Court also decided that the K.C.C. Article 735-3 Paragraph 1 under pre-2014 Reform is not against Korean Constitutional Code. Therefore, it is not prudential in my view that 2014 Reform regulated newly K.C.C. Article 735-3 Paragraph 3 according to partial academic opinions.