지수형 보험의 도입에 따른 법적 쟁점 및 규제 방향성에 관한 연구

Index-based insurance (also referred to as parametric insurance) is a form of insurance in which the entitlement to, or the amount of, insurance proceeds is determined not by the occurrence or magnitude of the actual loss resulting from an insured event, but by whether a pre-agreed objective index or trigger condition has been satisfied. With respect to the legal nature of index-based insurance, the following characterization may be advanced. Although index-based insurance does not share an identical structure with traditional indemnity insurance, it is appropriate to regard it as an insurance contract insofar as it satisfies the essential elements of insurance—namely, fortuity, risk transfer, and collective risk pooling. However, the application of the principle of indemnity should be understood in a limited manner, which necessitates legislative and interpretive supplementation. Accordingly, index-based insurance should be viewed as a modification and extension of traditional insurance, and it is desirable to incorporate it into the insurance law framework on the premise of an independent regulatory regime. While index-based insurance constitutes a novel risk-transfer mechanism that challenges existing insurance law theory, this alone does not justify a wholesale denial of its character as an insurance contract. Rather, in light of technological advancement and changes in the risk environment, there is a strong need to functionally reinterpret the concept of insurance. For the institutional establishment of index-based insurance, its legal character as insurance should be clearly recognized, alongside the acknowledgment of exceptions to the principle of indemnity, strengthened disclosure and explanation duties, and the refinement of supervisory regulations. Nevertheless, because index-based insurance employs a payout mechanism that is fundamentally different from the traditional insurance structure of compensating actual losses, substantial controversy persists regarding how its legal nature should be understood. In particular, its relationship with the principle of indemnity, its distinction from gambling or wagering contracts, and the delineation of its boundary with derivative products constitute core issues in assessing the feasibility of its institutional acceptance. To address these legal challenges, several measures are proposed. First, supervisory legislation such as the Insurance Business Act should be amended to introduce a statutory definition of index-based insurance products and to include them as a category of non-life insurance products. In addition, provisions permitting products that constitute exceptions to strict indemnity should be newly established. Furthermore, taking into account international supervisory standards—such as the IAIS guidance on index-based insurance and Lloyd’s parametric standards—it is necessary to formulate supervisory guidelines for index-based insurance that set out standards for product development, business operations, premium calculation principles, and consumer protection mechanisms. In particular, priority should be given to introducing index-based insurance in the context of policy insurance, such as wind and flood insurance, agricultural disaster insurance, and products linked to climate- and disaster-response funds, through cooperation with relevant authorities. Finally, amendments to insurance contract law are required, including revisions to the definition of insurance contracts and to provisions governing the liability of insurers in non-life insurance. Through responding to new risk demands and diversifying methods of insurance payouts, the insurance system should be enabled to play a more proactive role.