고지의무위반과 기망행위 여부- 대법원 2017. 4. 26. 선고 2017도1405 판결에 대한 평석을 중심으로 -

Insurance plays very important welfare role in modern society. Insurance system has its own specific character. Moral hazard, contingency, utmost good faith are such a character. The duty of disclosure is very important content and duty of insured in insurance law. It is also a expression of contingency, utmost good faith. The international trend shows that the disclosure duty is understood as a duty of passive answer. Insurance fraud is on the other hands a great problem in regard of insurance business. It is a worldwide concern. Many institutes surrounding insurance industry are making efforts to overcome the insurance fraud. It has many difficult problems. Many systems are connected each other. Insurance fraud is punished by criminal law. But in Korea the special law against insurance fraud is enacted in the year of 2016. By this law, the insurance fraud is punished severely as in the criminal law. And the attempter of insurance fraud is also punished. But there are many delicate problems surrounding the violation of the duty of disclosure and insurance fraud. In Korea the principle of “nulla poena(nullum crimen) sine lege”is very important constitutional principle. It should be obeyed thoroughly . But the wilful fraud attempter should be selected and punished. We should find a rational solution between these two competing interests. For the problem solution in this aspect we should find out not only the analytic method but also de lege ferenda. The private insurance compensates the state welfare system of the citizens. Therefore the good insured should be protected, but the insurance criminal should be sanctioned thoroughly. It is task of scholar and lawmakers. We should try to solve the difficult problem rationally. The target of critical notes of this article shows that the insured concealed the disease and injury treatment facts and so on.He has requested the payment of insurance money. This is typical insurance fraud. In this sense, the Korean supreme court decision of 2017Do1405 can be justified. The mere violation of duty of disclosure does not mean that the person should be punished. For the criminal sanction the more severe requirements are needed. The insured should know that the notified facts do not correspond with the real facts. And the insured should demand insurance money after occurring the insurance accident. According to Criminal Law the attempted action could not be punished. But according to the new special law against insurance fraud it is also punished. We should try to get the accurate criteria between punished criminal action and non punished actions in regard of the violation of the duty of disclosure. The criminal punishment is linked closely with human rights. Therefore we should be careful by approval of criminal punishment. And the special character of the duty of disclosure should also be considered by the decision.