해상적하보험계약에서 영국법 준거약관의 국제사법상 문제점 : 준거법의 분할(부분지정)에서 발생하는 어려움을 중심으로

In Korea, instead of designating English law as the governing law for marine insurance contracts, it is common to use language that limits the application of English law to certain issues. One of these limitations applies only to “all questions of liability arising under this policy,” while the other applies only to “liability for and settlement of any and all claims.” There is little difference between the two. While it is easy to acknowledge that English law is not the governing law for the entire insurance contract, there is a debate over whether English law has been designated as the governing law only for certain issues or whether English law has been incorporated into the insurance contract. The Supreme Court is following the former through a series of rulings. The main point of controversy is whether the duty of disclosure/utmost good faith should be governed by English law. In this passage, the author explains the difference between the choice of applicable law (partial designation) and incorporation of foreign law by reference (Chapter Ⅱ) and discusses the difficulties arising from adopting partial designation under English law, as in the case of the Supreme Court. This includes issues related to the governing law of the duty of disclosure/utmost good faith, interpretation of insurance contracts, whether or not the insurer can make a deposit with a court for payment, and the governing law of the insurer’s subrogation rights (Chapters Ⅲ to Ⅵ). Furthermore, when a procedural issue is determined, it should follow Korean law based on the “lex fori principle”, while a substantive issue must be solved by the governing law, making the determination of the characterization issue important. In this context, there are issues related to delay damages stipulated by the Act on Special Cases concerning Expedition of Legal Proceedings, the level of proof in litigation, and the standing of a subrogated insurer as a plaintiff in Korean litigation. The author believes that these issues should be governed by Korean law as procedural matters, but if they are seen as substantive issues, as in the case of the Supreme Court, the designation of the governing law becomes problematic when English law is partially designated (Chapters Ⅶ to Ⅸ). Both the partial designation theory and the incorporation of foreign law theory are logically possible. There are three main reasons the author supports the latter. First, difficulties arising from the partial designation theory can be avoided. Second, it is a policy reason that the overwhelming predominance of English insurance law in marine cargo insurance contracts can be alleviated to some extent. Third, nowithstanding the fact that the parties simply agreed that all questions of liability arising under the insurance contract are to be governed by the laws and customs of England, it is not natural to classify the choice of customs as an incorporation of customs and the choice of law as a partial designation thereby treating them differently. It is very regrettable that the Supreme Court did not analyze the governing law issues while examining the substantive legal issues of the duty of disclosure/utmost good faith in detail in its 2018 ruling. With the amendments in 2001 and 2022 of the private international law act of Korea and the painstaking efforts made since then, private international law and private international law studies of Korea have now taken root. Therefore, the author urges Korean courts to find the right path without simply repeating past rulings that lacked awareness and research on private international law issues.