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.-

영국계 P & I 클럽의 설립배경에 관한 사적 고찰

신건훈(Shin Gun Hoon) 한국무역상무학회 2007 貿易商務硏究 Vol.34 No.-

The traditional name given to the insurance of third party liabilities and certain contractual liabilities which arise in connection with the operation of ships is protection and indemnity(P & I) insurance. P & I insurance is very different from traditional hull and machinery insurance in that shipowners" hull and machinery insurance is designed primarily to protect the assured against losses to his vessel, whereas P & I insurance seeks to indemnify an shipowner in respect of the discharge of legal liabilities he has incurred in operating his own vessels. This study is to examine the background of establishment of British P & I clubs and, therefore, the identity of P & I insurance. The present British P & I clubs are the remote descendants of the many small and local hull mutual insurance clubs that were formed by British shipowners in the end of 18th century. At that time, British shipowners were dissatified with the state of marine insurance market and, therefore, established clubs together in mutual hull insurance clubs. After the removal of the company monopoly in 1824, greater competition had a good effect on the rates, terms of cover and service offered by the commercial marine insurance market and by Lloyd"s underwriters, and the hull clubs became less necessary and went into decline. The burden of British shipowners on liabilities to third parties was steadily increased after the middle of the 19th century, but the amount insured under hull policy was limited in the insured value of the ship. Eventually, the first protection club, that is, the Shipowners" Mutual Protection Society was formed in 1855. It was designed to like past mutual hull clubs, but to cover liabilities for loss of life and personal injury and also the collision risks excluded from the current marine policies, particularly the excess above the limits in hull policies. In 1870, the risks of liability for loss of or damage to cargo carried on board the insured ship was first awarded by the British shipowners. After 1874, many protection clubs formed indemnity club to cover the risk of liability for loss or damage to cargo. As mentioned above, British P & I clubs have been steadily changed according to the response of shipowners under the rapidly changing law of British shipowners" liability, and so on in the future.

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.

영국 해상보험법상 담보(warranty)에 관한 연구

신건훈(Shin, Gun Hoon) 韓國貿易商務學會 2009 貿易商務硏究 Vol.42 No.-

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of price, known as a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice were later introduced into England through the Continent. It is, therefore, quite exact that English and European marine insurance law have common roots. Nevertheless, significant divergences between English and European insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was developed and clarified in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance, and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has a unique rule on warranty. This article is, therefore, designed to analyse the overall rule of the rule of warranty in English marine insurance law. The result of analysis are as following. First, warranties are incorporated to serve a very significant function in the law of insurance, that is, confining or determining the scope of the cover agreed by the insurer. From the insurer's point of view, such the function of warranties is crucial, because his liability, agreed on the contract of insurance, largely depend on in, and the warranties, incorporated in the contract play an essential role in assessing the risk. If the warranty is breached, the risk initially agreed is altered and that servesthe reason why the insurer is allowed to discharge automatically further liability from the date of breach. Secondly, the term 'warranty' is used to describe a term of the contract in general and insurance contract law, but the breach of which affords different remedies between general contract law and insurance contract law. Thirdly, a express warranty may be in any form of words from which the intention to warrant is to be inferred. An express warranty must be included in, or written upon, the policy, or must be contained in some document incorporated by reference into the policy. It does not matter how this is done. Fourthly, a warranty is a condition precedent to the insurer's liability on the contract, and, therefore, once broken, the insurer automatically ceases to be liable. If the breach pre-dates the attachment of risk, the insurer will never put on risk, whereas if the breach occurs after inception of risk, the insurer remains liable for any losses within the scope of the policy, but has no liability for any subsequent losses. Finally, the requirements on the warranty must be determined in according to the rule of strict construction. As results, it is irrelevant: the reason that a certain warranty is introduced into the contract, whether the warranty is material to the insurer's decision to accept the contract, whether or not the warranty is irrelevant to the risk or a loss, the extent of compliance, that is, whether the requirements on the warranty is complied exactly or substantially, the unreasonableness or hardship of the rule of strict construction, and whether a breach of warranty has been remedied, and the warranty complied with, before loss.

영국 해상보험법 상 계약성립 후의 최대선의의무에 관한 연구

신건훈(Geon-Hoon Shin),송경석(Geyong-Suk Song) 한국무역학회 2006 貿易學會誌 Vol.31 No.5

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

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.

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