고지의무제도의 개선 방안에 대한 고찰

"Around 2010, advanced countries in the insurance industry began pursuing legal reforms to introduce the passive duty of disclosure system. Reflecting this global trend, discussions on adopting a passive disclosure obligation also became active in Korea around the same time. The movement toward introducing a passive disclosure system stems from the recognition that the current disclosure obligation places excessive disadvantages on policyholders and undermines trust in insurance. It can be seen as one of the efforts to reform the disclosure obligation system in a way that better protects policyholders. The argument for introducing a passive duty of disclosure focuses on the shift in circumstances wherein insurers have gained a superior position in accumulating information, while the increasing complexity of insurance products has made it difficult for policyholders to accurately assess important matters. This change in the insurance environment forms the main basis for advocating the passive disclosure system. Reflecting earlier academic discussions, a bill proposing partial amendments to the Commercial Act to introduce passive disclosure was submitted, but it ultimately failed to pass into law. However, with recent amendments to the Commercial Act now underway, interest in the passive disclosure obligation in the insurance sector appears to be resurfacing. The argument for introducing a passive duty of disclosure reflects changes in the insurance environment and aims to reduce the burden on policyholders to provide information, without hindering insurers' ability to collect the information necessary for risk selection. Through this approach, it seeks to find a balance of interests between insurers and policyholders and, ultimately, to restore trust in insurance. This intention is fully understandable and worthy of support. However, it must not be overlooked that, in insurance contracts, facts material to the insured risk serve as the foundation for risk assessment, underwriting decisions, and the formation of contractual terms. Therefore, a system that enables insurers to fully grasp all risks that may affect the contract is essential. In addition, given the growing severity of insurance fraud, it is equally important to maintain mechanisms that can effectively deter fraudulent behavior. The duty of disclosure is one of the most effective such mechanisms and should be recognized as such. Accordingly, the introduction of a passive disclosure system should not be approached merely as a wholesale adoption of foreign legal models. Instead, it is necessary to carefully examine the differences between foreign and domestic insurance laws and cultures, and to take a holistic view of the Korean regulatory framework regarding disclosure obligations. Under the current Korean Commercial Act, a policyholder’s intentional or negligent failure to disclose material facts is required in order to constitute a breach of the disclosure duty. Furthermore, if the insurer already knew or, due to gross negligence, failed to know of the material facts subject to disclosure, it cannot claim a breach of the duty. Under this existing legal framework, changes in the insurance environment—such as the enhanced informational capacity of insurers and the weakening informational position of policyholders—have the effect of reducing the likelihood of finding fault (intent or negligence) on the part of policyholders, while increasing the potential fault of insurers. In other words, under current Korean law, changes in the insurance landscape already function to narrow the scope of disclosure violations. This point should also be taken into account when assessing the effectiveness and necessity of introducing a passive disclosure obligation."