보험법의 고지의무에 대한 비교법적 연구

In the recent Supreme Court rulings, there were conflicting judgments in case of dispute between the policyholder’s disclosure or notification obligations and the insurer’s obligation of explanation, the duty to explain the terms and conditions of the insurance contract. On January 16, 2020, the Supreme Court applied insurer’s violation of the obligation to explain the terms over policyholder’s obligation to disclose in case the two conflict, as the insurer’s expertise is greater than the policyholder in the insurance contract, leading to a ruling which the insurer may not terminate the contract due to the violation of policyholder’s disclosure obligation. It can considered that the insurance consumer was protected. Meanwhile, on June 13, 2019, the Supreme Court applied policyholder’s violation of disclosure obligation over insurer’s explanation obligation, in their relations, resulting the insurance claimant not being able to receive any benefits under the principle of all or nothing. Although this may not be considered to be a wrong judgment, it was necessary to find a solution that could supplement the policyholder in the terms of equity and utmost good faith, who have maintained the insurance contract. In the study, the obligation of disclosure was observed comparatively, in the position of insurance consumer. In particular, the study considers the duty of disclosure passive and the system for reducing the proportion of negligence. It is necessary to expand this the pro-rata principle in the event of an insurance accident or a violation of the disclosure duty or violation of notification duty due to all gross negligence. As a solution to the problem of not receiving any insurance benefits, the study suggests a proportionate remedies system.