고지의무제도의 적절한 운영 방향에 관한 고찰

In insurance contracts, the duty of disclosure is a important system which the policyholder or the insured is required, at the time of contract formation, to provide the insurer with material information relating to risk, thereby enabling the insurer to make a reasonable selection of risks and to calculate insurance premiums appropriately. This duty has functioned as an essential element for complying with the principle of equivalence between premium and risk and for maintaining the soundness of the insurance system. However, in recent years, the importance of protecting insurance consumers has been increasingly emphasized. Against this background, continuous debate has arisen over whether to introduce the so-called “passivization of the duty of disclosure,” which converts the policyholder’s voluntary duty of disclosure into a duty to respond to questions posed by the insurer. Based on this discussion, this paper examines the definition and legal nature of the duty of disclosure, as well as the requirements for its breach and the legal effects thereof, thereby analyzing the structure of the current legal framework governing the duty of disclosure. In doing so, the paper clarifies that the duty of disclosure is not an obligation imposed unilaterally on the policyholder or the insured, but rather a bilateral duty corresponding to the insurer’s duty of explanation. Furthermore, this paper reviews the legislative approaches adopted in major jurisdictions, including the United States, the United Kingdom, Germany, and Japan, and confirms that although these countries have institutionalized the passivization of the duty of disclosure to a certain extent, it is difficult to conclude that they have uniformly adopted a complete form of passivization. In addition, this paper examines legislative amendment proposals introduced in Korea and the arguments both in favor of and against the passivization of the duty of disclosure. On this basis, it points out that a full-scale introduction of passivization without sufficient institutional preparation may adversely affect the soundness of the insurance system, given the limitations in establishing comprehensive questionnaires, the structural information asymmetry regarding disclosure matters, and the potential weakening of the insurer’s risk-selection function. As an alternative, the paper proposes a gradual and supplementary approach, such as introducing a proportional indemnity system based on the degree of negligence and the extent to which a breach of the duty of disclosure contributed to the occurrence of loss, rather than forcibly adopting full passivization of the duty of disclosure. While the passivization of the duty of disclosure may contribute, to a certain extent, to the protection of policyholders, its introduction should be approached with caution in light of the principle of utmost good faith and the sustainability of the insurance system. Accordingly, this paper concludes that it is desirable to strike an appropriate balance between policyholder protection and the sound operation of the insurance system through the rational improvement of the existing duty of disclosure system.