책임보험자의 동의없는 피보험자의 변제·승인·화해와 책임보험자의 보험금 지급의무 -상법 제723조의 입법론

It is natural and plausible to interpret that Article 723(3) of the Korean Commercial Code presupposes the proposition that the liability insurer shall be bound by the payment, acknowledgement or settlement by the insured without the insurer’s consent unless such act is significantly unfair (the insurer-binding proposition). It was likely that Korean Legislators referred to Article 154(2) of the former German Insurance Contract Act, while making 723(3) of the Korean Commercial Code. Under the former German Insurance Contract Act, the liability insurer was in principle bound by the insured’s acknowledgement without the insurer’s consent. However, German Insurance Contract Act was revised and now the liability insurer is no longer bound by the insured's unilateral acknowledgement. Liability relation and insurance relation are two separate, independent legal relationships. The basic structure of liability insurance should start with the proposition that the liability relationship does not bind the insurance relationship (the insurer-non binding proposition). Therefore, Article 723 of the Korean Commercial Code which presupposes the insurer-binding proposition should be amended. In this article, the author proposed the amendments to Article 723 of the Korean Commercial Code, referring to the discussions of German and Austrian insurance contract law. The key points of the amendment are as follows. ① The exemption clause about the liability insurer’s obligation for reasons of the insured’s payment, acknowledgement or settlement without the insurer’s consent should be deemed invalid, except when the insured acted fraudulently. ② When such exemption clause is struck down as invalid, the liability insurer should pay for the legal liability that the insured would have born without unilateral payment, acknowledgement or settlement. And the new Article 723 should clarify this point. ③ It is desirable to stipulate that payment period of the liability insurer under the Article 723(3) of the Korean Commercial Code is considered, only when the “insurer-binding” payment, acknowledgement or settlement are notified to the insurer.