재보험계약에서의 운명추종과 채무확정추종

Recently, disputes related to reinsurance are increasing, mainly due to the principle of following the fortunes (Follow the Settlement) and obligation to cooperate. In the event that the insured under the original insurance requests the payment of the insurance payment to the original insurer, the original insurer pays even though the reinsurer withholds the payment of the insurance payment to the original insurer and requests an investigation into whether it falls within the scope of the original insurance coverage. This article studies the legal relationship of reinsurance. Determination of the meaning of follow the settlement and follow the fortunes, whether it is accepted as a general rule of law in reinsurance transactions, examines the legal nature of liability insurance and reinsurance, and studies whether the regulation on the obligation to cooperate in liability insurance can be applied to reinsurance. The following is the conclusion. First, the meaning of follow the settlement and follow the fortunes is different, and follow the settlement has legal meaning. The reinsurer bears the responsibility of proving that the coverage of the original insurance is outside the scope of coverage only if there is a clause in the reinsurance contract, and the coverage of the original insurance is unclear. However, in order for the original insurer to claim reinsurance, if there is no provision for follow the settlement, the loss under the original insurance is a loss arising from a specified risk covered by the original insurance, that the payment amount of the original insurance is appropriate, and the loss thereof. It is also necessary to prove that this is also within the scope of reinsurance, and that the original insurer's damages and payments are "behaved in good faith and have taken all appropriate management measures necessary to determine the insurance debt. Second, it does not apply unless the relevant provisions are specified in the reinsurance contract, whether it is follow the settlement and follow the fortunes. Neither can be seen as a general rule of law established in reinsurance transactions. If the original insurer is out of the scope of coverage under the original insurance contract, if there is no provision for the relevant clause, even if it trusts in good faith for the liability for compensation, and no matter how reasonable the belief is, the determination of debt will not be applied. Third, reinsurance is an insurance of a completely different nature from liability insurance. Therefore, Article 726 of the Commercial Law, which applies to liability insurance regulations, should be deleted. As a comparative law, there is no legislative example that applies or applies the provisions of liability insurance to reinsurance as in our case, and rather, the provisions of the insurance contract law do not apply to reinsurance. In addition, many countries do not have reinsurance-related regulations and leave it to the party's autonomy. Fourth, even if reinsurance has the nature of some liability insurance, the provisions of Article 723 (3) regarding the Duty to cooperate with liability insurance are contrary to the nature of reinsurance and cannot be applied. In reinsurance in which party autonomy is strongly operated, the interpretation of the terms and conditions is of importance, and the text should be interpreted only with the relevant provisions in the reinsurance contract.