책임보험계약에서 제3자의 직접청구권의 준거법에 관한 연구 - 대법원 2017. 10. 26. 선고 2015다42599 판결을 중심으로 -

In maritime liability insurance contracts, it is customary for a choic-of-law clause based on English law to be included between the insurer and the insured, and its validity is generally recognized. However, in liability insurance involving foreign elements, the current private international law lacks a clear provision for the governing law concerning the direct third party claim against the insurer. The legal nature of direct third party claims is a subject of contention between the tort claim theory and the insurance claim theory. Presently, prevailing academic discourse and legal precedents favor the tort claim theory. However, considering the theoretical weaknesses of the tort claim theory, it is argued that interpreting the third party direct right of action as an insurance claim right is more reasonable. Concerning the governing law for the third party direct right of action, there are conflicting views—some advocate for the application of the governing law for torts, while others argue for the application of the governing law of the insurance contract. A landmark decision (Supreme Court Decision 2015Da42599 Decided October 26, 2017) maintained the existing position that the legal relationship concerning the third party direct right of action corresponds to a situation where the insurer concurrently assumes liability for damages to the injured third party. It interprets that the governing law is that of the underlying liability insurance contract. However, the landmark ruling raises doubts about its logical coherence by asserting that while recognizing the third party direct right of action as applicable to situations where the insurer assumes concurrent liability to compensate the third-party's loss, it deems the governing law to follow that of the insurance contract rather than that governing the legal relationship between the insured and the third party. Furthermore, even though the general practice is not to apply Article 54(2) of the Private International Law Act, which is generally applicable to concurrent assumption of obligations, the decision suggests applying it without specifying concrete criteria, contributing to ambiguity in governing law decisions. Therefore, interpreting the legal nature of the direct right of action as an insurance claim right and applying the governing law of the insurance contract provides logical consistency and simplicity. However, in this situation, the application of the Third Parties (Rights against Insurers) Act 1930 may be applicable due to the English law choice-of-law clause included in the insurance contract, potentially restricting the exercise of the direct right of claim. Considering Article 724(2) of the Commercial Code as an internationally mandatory regulation under Article 20 of the Private International Law Act provides a potential avenue for protecting third parties in an international context. Additionally, from a legislative perspective, it is worth considering Regulation (EC) No 864/2007 of the European Parliament of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), which allows direct third party claims to be selectively linked to either the governing law of illegal acts or the governing law of the insurance contract.