보험계약자 측의 중첩적 의무위반과 중과실비례보상의 관계에 대한 소고

The Commercial Act, Chapter 4 on insurance adopts the principle of "All or Nothing" (Alles oder Nichts-Prinzip), which stipulates that the insurer is exempt from liability in cases where the policyholder’s actions involve intention or gross negligence. However, many countries have introduced a proportionate remedy system for gross negligence based on the view that treating intention and gross negligence in the same way in the context of policy breaches is harsh on the policyholder and does not align with the principle of fairness. Under the proportionate remedy system for gross negligence, if the policyholder violates the duties intentionally or through gross negligence, the insurer is exempt from liability in the case of intention, but for gross negligence, the insurer is entitled to provide benefits proportionate to the degree of the policyholder's gross negligence. There are two primary models for the proportionate remedy for gross negligence. In countries like Germany, Austria, and Switzerland, there is a Reduction Model (Reduktionsmodell), where case law or insurers individually assess the policyholder's contribution to the cause of the accident in a specific case to determine the basis for a reduced benefit. In contrast, in countries like the Netherlands and Sweden, there is a Benefits Allocation Model (Leistungsquotenmodell), where a predetermined standard is used to allocate a fixed percentage based on set criteria. However, beyond the basic models for proportionate remedy for gross negligence, the method for handling cases where the policyholder concurrently breaches multiple duties is being carefully discussed based on these foundational models. Commonly discussed models include the Additive Model (Additionalmodell), the Consumption Model (Konsumtionsmodell), and the Step Model (Stufenmodell). The Additive Model simply combines the frequency of concurrent negligence. The Consumption Model involves a more significant breach of duty encompassing the lesser breaches. This follows a principle similar to the competition of claims. The Step Model (Stufenmodell), also known as the Quota Multiplication Model (Quotenmultiplikationsmodell). It refers to where, in cases where an insurance accident is caused by repeated breaches of duty, the reduction rate for the violation of the duty to mitigate the insured risks is applied cumulatively in a multiplicative manner. To effectively introduce and apply the proportionate remedy for gross negligence in insurance contract law, it is necessary to conduct a legally reasonable analysis of these models. Furthermore, the causation among breaches of multiple duties must be rationally determined.