해상보험계약상 영국법 준거약관과 설명의무 - 대법원 2016. 6. 23. 선고 2015다5194 판결의 평석을 중심으로 -

In practice, marine insurance policies often contain so-called English governing law clause. In particular, in case of marine cargo insurance, as the terms and conditions such as “All questions of liability under this policy are to be governed by the laws and customs of England.” are being used, the conflict continues over whether the governing law is limited to the liability of the insurer and its scope of application. The judgment deals with what the governing law of this case insurance contract would be, whether or not the insurer's duty of explanation is the matters of insurer's liability, and whether or not General Contract Terms Control Act is applied. In the past, the Supreme Court applied General Contract Terms Control Act without any specific explanation regarding the insurer's duty of explanation in the case where the English law was the governing law of the whole insurance contract(the Supreme Court of Korea Decision 2009Da105383 dated September 9, 2010). However, the judgment can be evaluated as an advanced judgment in that it is determined that the insurer's duty of explanation is not related to the liability of the insurer based on the splitting the governing law. It is reasonable that the court decided that the English governing law clause do not specify the governing law for all matters of insurance contracts, but only as to the insurer's liability. However, the breach of the insurer's duty of explanation is directly related to the insurer's responsibility, so it cannot be concluded that it is not a matter of liability. The Supreme Court should have discussed the issues more exhaustively about what the insurer's liability is.