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.-

영국 보험법 상 피보험이익에 관한 법원칙의 개혁동향

신건훈(Shin, Gun Hoon) 한국무역상무학회 2014 貿易商務硏究 Vol.61 No.-

For a contract of insurance to be valid, the insured needs to have an insurable interest. This means that someone taking out insurance must stand to gain a benefit from the preservation of the subject matter of the insurance or to suffer a disadvantage should it be lost. Although the principle is simple, the detail is difficult. English Law Commission proposed some changes to provide certainty on the rule of insurable interest in LCCP 201. This article is, therefore, designed to examine the proposals for reforming trends in English insurance contract law. The proposals on Law Commission in summarized as following. First, LC proposed to retain the requirement for insurable interest because it was thought to fulfil four useful functions. Secondly, LC proposes to repeal the Marine Insurance Act 1788 and the Marine Insurance (Gambling Policies) Act 1909 to confirm that the requirement of insurable interest applies to all forms of insurance. Thirdly, LC proposes to retain the provisions on insurable interest in the Marine Insurance Act 1906. Finally, LC proposes to define insurable interest and thinks that full definition of insurable interest should remain flexible.

영국 보험법상 보험계약자의 고지의무에 관한 연구 - 2015년 보험법의 발효 이후 보험법의 변화를 중심으로

신건훈(Gun-Hoon SHIN),박은옥(Eun-Ok PARK) 한국무역상무학회 2020 貿易商務硏究 Vol.88 No.-

영국 의회는 과거 보험자에게 지나치게 유리하게 적용된 법원칙을 개혁함으로써, 보다 공정한 법원칙을 모색한다는 목표 하에서 IA 2015를 제정하였으나, 고지의무와 관련하여 보험계약자의 합리적인 조사의무는 적용범위 측면에서 법적 불확실성을 내포하고 있을 뿐만 아니라, 과거에 비하여 보험계약자에게 더욱 큰 부담으로 작용할 것으로 판단된다. 반면 구제수단과 관련한 혁명적인 변화는 어느 정도 법적 불확실성을 내포하고 있으나, 과거에 비하여 보다 공정한 계약관계를 창출하는데 도움이 될 것으로 판단된다. IA 2015에 의하여 초래된 법률의 실질적인 변화는 단기적으로 법적 불확실성의 원인으로 작용할 가능성이 있지만, 장기적으로는 영국 보험법의 발전을 견인할 것으로 기대된다. This article intends to analyze the legal implications in respect with the duty of disclosure under the IA2015 through the comparative research between the new and old laws. Even though LC seems to encompass a desire for fairness, for holding in balance the interests of both to the insurance contract, and for recognizing modern developments in the world of insurance business, LC started to reform the insurance law on the past. The substantial changes in the IA 2015 are as following. Firstly, A small, but important, change is that a fair presentation of the risk requires disclosure in a manner which would be reasonably clear and accessible to a prudent insurer. This change is intended as a legal device to prevent the past inefficient practice, ‘data-dumping’. Secondly, in according to section 4(6) and (7) of the IA 2015, the assured ought to know what should reasonably have been revealed by a reasonable search of information, and this suggests that the assured must positively look for information for performing the duty of disclosure. Under the IA 2015, the constructive knowledge of the assured is broader and therefore increases the burden of disclosure upon the assured, whereas the constructive knowledge of the insurer, which fixes the scope of the exception to the assured’s duty of disclosure, is defined more narrowly under the IA 2015. Finally, the new and revolutionary remedies are much more flexible, proportionate, refined and fairer than the old, whereas those may be the source of legal uncertainty in the short term.

海上保險契約上 告知義務에 관한 比較考察

辛建勳(Gun-hoon Shin) 한국무역학회 2001 貿易學會誌 Vol.26 No.1

船舶衝突損害에 대한 船舶保險과 P&I 保險의 擔保範圍에 관한 考察

辛建勳(Gun Hoon Shin) 한국무역학회 1997 貿易學會誌 Vol.22 No.1

2015년영국보험법상공정표시의무에 관한연구

신건훈(Gun Hoon SHIN) 한국무역상무학회 2016 貿易商務硏究 Vol.72 No.-

Since 2006, the LawCommission and Scottish LawCommission have been engaged in a major review of insurance contract law, finally leading to the legislation of Insurance Act 2015. According to the enforcement of the Insurance Act 2015 on 12 August 2016, ss 18~20 of theMarine Insurance Act 1906(MIA 1906) were repealed and substituted by the new concept of fair presentation. This article intends to analyze the legal implications through the comparative research between the duty of fair presentation in Insurance Act 2015 and ss 18~20 of MIA 1906. The major changes in Insurance Act 2015 are designed to (1) encourage active engagement by the insurer rather than passive underwriting, asking questions of the insured if the desired information is not provided at the stage of proposal; (2) encourage policyholders to structure and signpost their presentation in an clear and accessible way, and prevent data dumps; (3) give guidance as to how the insured should prepare a fair presentation, by undertaking a reasonable search of available information and giving examples of what circumstances might be material; (4) clarify whose knowledge in the insured’s organization is attributed to the insured for the purposes of disclosure; (5) clarify the exceptions to the duty of disclosure, including circumstances “which are known or presumed to be known to the insurer”; and (6) replace the remedy of avoidance in all circumstances with more proportionate remedies. This is a default regime, whichmay be altered by agreement between the parties.

2009년 협회적하약관의 면책조항 상 주요 개정내용에 관한 연구

신건훈(Shin, Gun Hoon),이병문(Lee, Byung Mun) 한국무역상무학회 2013 貿易商務硏究 Vol.57 No.-

This article intends to analyse some features in Exclusion Clauses of the Institute Cargo Clauses 2009 and the results of analysis are following. First, the insufficiency of packing or preparation exclusion under the revised Clause 4.3 is now more limited than before and the Clause suggest the test of sufficiency or suitability “to withstand the ordinary incidents of the insured transit.” Secondly, the word “proximately” was deleted under the revised Clause 4.5 for the insurer to be identified more easily as a cause, but it remains to be seen whether that re-drafting will be successful. Thirdly, The exclusion under the revised Clause 4.6 does not apply unless the insurer can prove that, at the time the subject-matter insured is loaded on board the vessel, the assured was aware, or in the ordinary course of business should have been aware, that the relevant insolvency or financial default could prvent the normal prosecution of the voyage, and to a person who purchase the goods from the assured in good faith under a binding contract. Fourthly, the exclusion in respect of unseaworthiness of vessel under Clause 5.1.1 applies only where the assured is privy to the unseaworthiness, whereas the exclusion in respect of unfitness of container or conveyance under Clause 5.1.2 includes the privity of the employee. Finally, Clause 7 establishes the definition of terrorism, and adds ideological and religious motive to political motive.

영국 보험법개혁의 법적 배경에 관한 연구 –기업보험에 적용되는 2015년 보험법을 중심으로

신건훈(Gun Hoon SHIN) 한국무역상무학회 2020 貿易商務硏究 Vol.86 No.-

최근 영국에서는 과거 보험법의 근간을 제공하였던 MIA 1906의 제정 이후 100여년의 세월이 흐르는 동안 가장 의미 있는 보험법개혁을 단행하였다. 세계 3위 및 유럽 최대의 보험시장인 런던보험시장에서 상당한 규모의 국제보험거래가 이루어지고 있고, 우리나라의 경우 영국법준거약관에 의거하여 해상보험계약이 체결되기 때문에 영국 보험법의 개혁은 우리나라를 포함한 여타 국가에 많은 영향을 미칠 것으로 예상된다. IA 2015는 영국 보험법 상 계약관계의 비형평성 및 비공정성을 치유하기 위하여 제정되었다. 이 논문은 과거 비판의 대상이었던 최대선의의무, 워런티, 사기적인 보험금청구 및 보험금지급 지체에 대한 구제수단과 관련하여 영국 보험법개혁의 법률적 배경 및 그 의미를 개괄적으로 규명하는데 그 목적을 두고 있다. The IA 2015 is intended to level the playing field between the parties to a contract of insurance. It therefore makes a number of changes which ought to favour the insured, most obviously the abolition of avoidance as the sole remedy for breach of the duty of utmost good faith, and its replacement with proportionate remedies for breach of a new duty of fair presentation. In addition, the IA 2015 transforms insurance warranties so that breach will no longer discharge the insurer’s liability automatically and permanently. It introduces the potential availability of damages, where an insurer fails to pay a claim within a reasonable time and also clarifies the remedy against the fraudulent claim. The IA 2015 is non- revolutionary in that the duty of fair presentation remains much as it was in its pre-Act form, whereas it is revolutionary in that it introduces proportionate remedy. The changes on the IA 2015 makes very significant impacts to insurance law in the UK and to the contract of insurance governed by the laws of the UK.

영국 해상보험법의 주요 개혁안에 관한 연구 : 보험계약자의 계약체결 전 정보제공의무를 중심으로

신건훈(Gun-Hoon Shin) 한국해양비즈니스학회 2010 해양비즈니스 Vol.- No.17

The common rules of the duty of utmost good faith are found in sections 17-20 of the MIA 1906. By virtue of s. 18 of the MIA 1906, a person applying for insurance is required to volunteer information to the insurer on material circumstances. The remedy for non-disclosure of a material circumstance which would influence the judgment of a prudent insurer in fixing the premium or deciding whether he will take the risk or not, is the avoidance of policy. Similar rules true for the assured who makes a material misrepresentation. Critics on the current legal position with relation to the pre-contractual duty of utmost good faith are concentrate particularly on two points. First, the scope of the duty is criticized as imposing so high burden on the assured. Secondly, the remedy of avoidance available for insurers against breach of the pre-contractual duty of utmost good faith may give insurers too much protection or compensation. This article is intending to analyse main proposals for reform in relation to the policyholder’s pre-contractual duty of information which are proposed by English Law Commissions, and legal implications of the proposals. The results of analysis are as following. First, the Law Commissions propose to abolish the policyholders’ voluntary duty of disclosure for consumer insurance at the pre-contractual stage. The Law Commissions take a view in this regard that the law should be lined with industry practice, and the range of factors relevant to insurer’s decision is sufficiently well-known and predictable that the insurer can obtain necessary information by asking specific questions in consumer insurance. Secondly, the Law Commissions suggest that consumers who act honestly and reasonably, should be protected. That is, policyholders in consumer insurance should have a duty to answer questions honestly and to take reasonable care so that their replies are accurate and complete. Finally, the Law Commissions classify a misrepresentation under the current common law as three types and propose different results against respective misrepresentations. In according to the Law Commissions’ proposal, the insurer has no remedy where a misrepresentation is honest and reasonable, the insurer has a compensatory remedy where a misrepresentation is careless and the insurer may avoid the policy like the position of current law where the misrepresentation is deliberate or reckless.

영국 2015년 보험법 상 담보(워런티)에 관한 연구

신건훈(Gun Hoon SHIN),이병문(Byung Mun LEE) 한국무역상무학회 2017 貿易商務硏究 Vol.73 No.-

The rule ofwarranty in English insurance lawwas established in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English lawof insurance contract and developed very different rule of insurance law, especially in the field ofwarranty. At the time of LordMansfield, warranty, that is, the promise given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed since the age of Lord Mansfield. English and Scottish Commissions proposed very dramatic reformof lawin the field ofwarranty law to reflect the changes of legal environment through the Insurance Act 2016. This article intends to consider the legal implications through the comparative analysis between the newregime ofwarranty in the InsuranceAct 2015 and MIA 1906. The major changes in the Insurance Act 2015 are summarized as following. First, Basis of the contract clauses in non-consumer insurance contracts should be of no effect and representations should not be capable of being converted into warranties by means of a policy term or statement on the proposal form. This requirement should not be capable of being avoided by the use of a contract termand the arrangement of contracting out by parties should be of no effect. Secondly, The existing remedy for breach of warranty, that is, automatic discharge of the insurer s liability, should be removed. Instead, the insurer s libility should be suspended fromthe point of breach of warranty and reattach if and when a breach of warranty has been remedies. Thirdly, A breach of warranty should genally be regarded as remediedwhere the insured ceases to be in breach of it. In the other hand, for time-specific warranties which apply at or by an ascertainable time, a breach should be regarded as remedies, if the risk towhich thewarranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a termof an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that termshould only give the remedy in relation to loss of that particular kindof loss, or at a particular location/time. Finally, whether a termof an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based onwhether compliancewith that therwould tend to reduce the risk of the occurrence of that category of loss.