편의치적선에 대한 해운선진국의 대응정책과 최근의 국제규제동향

신건훈 한국무역상무학회 1994 貿易商務硏究 Vol.7 No.-

유류오염손해(油類汚染損害)에 대한 선주(船主)의 책임(責任) 및 보험.보상제도(保險.補償制度)에 관한 고찰(考察)

신건훈,Shin, Gun-Hoon 한국무역상무학회 1995 貿易商務硏究 Vol.8 No.-

전자상거래 보험의 쟁점에 관한 고찰

신건훈 한국무역학회 2005 무역학자 전국대회 발표논문집 Vol.2005 No.8

영국 보험법 상 보험자가 부담하는 (최대)선의의무의 적용범위에 관한 연구-2015년 보험법의 영향을 중심으로

신건훈,주세환 한국무역상무학회 2019 貿易商務硏究 Vol.84 No.-

It is commonly recognised in English insurance law that the duty of utmost good faith is reciprocal and the duty of the parties do not come to an end even after an insurance contract is concluded. It is true that the duty is less exacting after the conclusion of contract. This article in intended to analyze the scope of insurer’s duty on good faith and the impacts of the Insurance Act 2015 on the scope. The results are as followings. First, English court, by drawing an analogy with the assured’s pre-contractual duty of good faith, needed to engage in judicial lawmaking in order to define the degree of materiality required to define the standard of the assured’s pre-contractual duty of good faith. It is difficult to acknowledge the reason that such an standard, adopted by existing case law, would be removed since the enactment of the Insurance Act 2015. Secondly, it is true that the duty of good faith is less exacting after the conclusion of contract, but it is needed to act more positively to observe the duty of good faith in specific instances at the post-contractual stage. Therefore, insurer in required to act in good faith in investigating, handling and settling claims, and the defence against the third party under libility insurance. Finally, it is possible to argue that there is no room for any separate concept of utmost good faith to be adopted for the interpretation of insurance contract, since the concept of food faith has recently been adopted for the interpretation of general commercial contracts in recent cases. 영국 보험법 상 최대선의의무는 보험계약의 근간을 제공하는 것으로서, 상호성 및 지속성을 갖는 의무이다. 2015년 보험법 상 보험계약자가 부담하는 최대선의의무에 관한 법원칙은 상당히 명확하게 규정된 반면, 상호적인 성격을 갖는 의무로서 보험자가 부담하는 최대선의의무에 관한 법원칙은 여전히 불확실한 상태로 남게 되었다. 따라서 이 논문은 보험자가 부담하는 최대선의의무의 적용범위 및 2015년 보험법의 영향을 분석하는데 그 목적을 두고 있다.

전자상거래 보험의 시장현황 및 쟁점에 관한 고찰

신건훈 한국통상정보학회 2005 통상정보연구 Vol.7 No.3

영국 보험법 상 손해방지의무에 관한 연구

신건훈,이병문 한국무역상무학회 2018 貿易商務硏究 Vol.80 No.-

In the excitement which attends a loss covered by the insurer, the assured should seek to act as if he was uninsured and take those steps to avoid the loss or lessen its harmful effect. The position of English insurance law is not clear on the nature and extent of duty to avert or minimize the insured loss, and, therefore, this study is designed to examine the nature and extent of the duty. The result of analysis are as followings. First, it is well established that the duty to mitigate is not an any sense an obligation, contractual or otherwise, and it is condition attached to the right to claim total damages. Secondly, the duty arises when peril is at any rate imminent. The duty does not arise until a peril as at any rate imminent and it is duty that arises in response to a casualty, actual or imminent. In order that the duty should cease to apply, it is necessary for the subject-matter insured to be no longer threatened by perils for which the assured are responsible. Thirdly, the question may arise of the degree of likelihood of loss by a covered peril. In this regards, English courts held that a stringent test of likehood of covered loss was in principle inappropriate and it sufficed that there was a risk of an insured loss materializing. Fourthly, there is a duty to mitigate insured loss in both marin and non-marine insurance, but the degree is so different. The assured is better favoured by the rule of marine insurance than by its non-marine insurance. Finally, the test of reasonableness relating to the duty seems to be an objective one. The test is not strict one, which should be assessed by reference to the conduct that might reasonably be expected of a person of normal competence in the circumstances of the peril that occurred.

볼레로 시스템의 有用性 및 法的 爭點에 관한 硏究

신건훈,박석재 韓國海法學會 2002 韓國海法學會誌 Vol.24 No.2

영국 2015년 보험법 상 사기적인 보험금청구에 대한 구제수단에 관한 연구

신건훈 한국무역상무학회 2023 貿易商務硏究 Vol.100 No.-

Fraud on the part of an insured in the making of a claim under a policy of insurance is a problem which has long bedevilled the insurance industry. The lengthy process of review and consultation conducted by the Law Commissions has culminated in legislation clarifying the legal position in relation to the remedies for fraudulent claims. Section 12 and 13 of the Insurance Act 2015 provide a statutory framework for the remedies available to the insurer where the assured presents a fraudulent claims. This article is designed to analyze the legal meaning of remedies for fraudulent claims in Section 12 and the results are as follwings. First, section 12 states that if the insured makes a fraudulent claim under a contract of insurance, insurers are not liable to pay the claim and may recover any sums paid to the insured in respect of that claim. Thus, statutory effect has been given to the common law remedy of forfeiture, as established in the existing case law. Secondly, section 12 provides that an insurer may, subject to notice to the insured, treat the contract as having been terminated with effect from the time of the fraudulent act and in such case, it does not affect the rights and obligations of the parties with respect to the genuine event occurring before the time of the fraudulent act. These provisions, therefore, reflect the modern trend of the authorites in that they remove any possibility of the appropriate remedy being of avoidance under section 17 of MIA 1906 and recognize that fraud does not affect any previous valid claim where loss arises before the fraud takes place. Thirdly, LC tentatively suggested that damages should be available to compensate the insurer in relation to the fraudulent claims. Taking some points into consideration, LC decided that there was not a sufficiently strong case for reform and the law, therefore, remains unchanged in this regard. LC’s aim to end the disjunction between the common law rule and section of MIA 1906 by providing for a clear statement of remedies for the fraudulent claims, was clearly achieved through the section 12 of the IA 2015. It could be appreciated that section 12 of the IA 2015 is clearly a sufficiently satisfactory solution in clarifying the uncertain position left by the exisiting case law.

영국 보험법 상 보험자의보험금지급의무와 관련한 주요 쟁점- 2015년 보험법 상 개정내용을 중심으로 -

신건훈,이병문 한국무역상무학회 2017 貿易商務硏究 Vol.76 No.-

Where an insurer has unreasonably refused to pay a claim or paid it after unreasonably delay, the existing law in England does not provide a remedy for the insured. Accordingly, the insured is not entitled to damages for any loss suffered as a result of the insurer’s unreasonable delay. This legal position differs from the law in Scotland and most major common law jurisdictions. LC thought that the legal position in England is anomalous and out of step with general contractual principles. LC considered that a policyholder should have a remedy where an insurer has acted unreasonably in delaying or refusing payment of claim, and, therefore, recommended a statutory implied term in every insurance that the insurer will pay sums due within a reasonable time and breach of that term should give rise to contractual remedies, including damages. More detailed recommendations of LC are as followings. First, it should be an implied term of every insurance contract that, where an insured makes a claim under the contract, the insurer must pay sums due within a reasonable time. Secondly, a reasonable time should always include a reasonable time for investigating and assessing a claim. Although a reasonable time will depend on all the relevant circumstances, for example, the following things may need to be taken into account, that is, (1) the type of insurance, (2) the size and complexity of the claim, (3) compliance with any relevant statutory rules or guidance, and (4) factors outside the insurer’s control. Thirdly, if the insurer can show that it had reasonable grounds for disputing the claim(whether as to pay or not, or the amount payable), the insurer does not breach the obligation to pay within a reasonable time merely by failing to pay the claim while the dispute is continuing. In those circumstances, the conduct of the insurer in handling the dispute may be a relevant factor in deciding whether the obligation was breached and, if so, when. Fourthly, Normal contractual remedies for breach of contract should be available for breach of the implied term to pay sums due within a reasonable time. Finally, In non-consumer insurance contracts, the insurer should be permitted to exclude or limit its liability for breach of the obligation to pay sums due within a reasonable time, unless such breach was deliberate or reckless, and such an insurer’s right to contract out will be subject to satisfying the transparency requirements.

영국 해상보험법에서 최대선의원칙의 문제점에 관한 고찰

신건훈 한국무역상무학회 2000 貿易商務硏究 Vol.14 No.-