영국 해상보험법의 몇 가지 문제에 대한 고찰 - 대법원 2017. 6. 19. 선고 2016다270407 판결 -

In cases where English law governs a marine insurance contract, the plaintiff who claims insurance compensation for the risk of perils of seas shall bear the burden of proof of the existence of the risk of perils of seas. Therefore, the plaintiff must prove that the accident is ① a risk that occurs “of the seas” and ② fortuitous. Furthermore, the plaintiff must prove the facts and causality of the damage to the extent that it can be regarded as a prima facie case. Therefore, if the plaintiff fails to meet this level of evidence, the insurer does not need to make a separate defense. On the other hand, despite the plaintiff's evidence, if it is not clear whether the damage was caused by the risk of perils of seas, the question arises as to whose disadvantage the absence of that fact is attributed. However, from a practical point of view of litigation, the standard of allocating the burden of proof of the Korean Civil Procedure Act and that of the British Law are not much different. Therefore, even if the burden of proof is distributed among the litigants under any nation’s law, the conclusion will not be different. However, even if a marine insurance contract is governed by English law, because the legal nature of the degree of satisfying the burden of persuasion in the litigation may be regarded as a procedural matter, the question what the governing law of the degree of satisfying the burden of persuasion is a matter of practical importance. In a series of marine insurance cases, the Korean Supreme Court applies, without further explanation, the principle of preponderance of evidence as the rule for the satisfaction of the burden of persuasion. However, if the degree of proof in civil lawsuits is understood as a procedural matter, the Korean Civil Procedure Act should be applied to the issue of the degree of proof.