보험금청구권이 없는 피보험자에 대한 대위권에 관한 연구

박윤철 ( Yoon Chul Park ) 순천향대학교 사회과학연구소 2009 사회과학연구 Vol.15 No.2

자동차 종합보험배상책임에서 피보험자에 대한 보험회사의 보상책임 유무를 결정함에 있어서는 각 피보험자마다 개별적으로 약관의 규정을 적용하는 (피보험자개별적용)것이므로 한 사고로 배상책임의무를 지는 피보험자가 둘 이상 존재하는 경우에는 보험금청구권을 갖는 피보험자와 보험금청구권을 갖지 아니하는 피보험자가 동시에 존재할 수 있다. 이런 때에 보험금청구권이 있는 피보험자의 청구에 의하여 보험금을 지급한 보험자가 보헙금청구권을 갖지 아니하는 피보험자에 대하여 대위권을 행사 할 수 있는지의 여부가 문제시 된다. 한편 대법원은 위와 같은 사고 시 상법 제682조 소정의 보험자대위는 보험사고로 인한 손해가 보험계약자 또는 피보험자 아닌 제3자의 행위로 인하여 생긴 경우에 보험금액을 지급한 보험자가 보험계약자 또는 그 제3자에 대한 권리를 취득하는 제도이므로 보험계약의 해석상 보험사고를 일으킨 자가 상법 소정의 “제3자”가 아닌“피보험자”에 해당될 경우에는 보험자는 그 보험사고를 일으킨 자에 대하여 보험자대위권을 행사할 수 없다는 입장을 유지하고 있다. 그러나 대법원은 임치인의 사용자배상책임을 인정하면서도 단지, 보험자대위의 제3자 여부에만 초점을 맞춰 판단하여 약관해석을 그르친 잘못이 있다 하겠다. 손해보험에서 피보험자라 함은 보험금청구권(피보험이익의 주체)이 있는 자로서 위 사건에서 임차인의 보험금청구권은 박탈되었으므로 보험자는 임차인을 보호할 이유가 전혀 없게 되는 것이다. 임차인은 형식상 피보험자이지 실질적 피보험자가 되지 않기 때문에 “제3자”에 해당하게 되는 것이다. In determining whether the insurance company is liable for the indemnity of insured`s loss under automobile comprehensive liability insurance, the provisions of policy wording are applied to each individual insured. Therefore, in case that there are more than two insured who are obligated to pay the liability claim regarding one accident, two types of insured could exist simultaneously; one is the insured who has the right to file a claim and the other is the insured who does not have the right to file a claim. In this case, a dispute could arise as to whether the insurance company which paid the claim filed by insured who has the right to file a claim can conduct the right of subrogation against the insured who does not have the right to file a claim. In the meantime, Supreme Court is of the opinion that the insurer can not exercise the right of subrogation against person who caused an insurance accident in case that the person who caused the accident falls into the insured in the insurance contract context , not the 3rd party person stipulated in Commercial Law, citing that the subrogation by insurer stipulated in clause #682 of Commercial Law is the system that the insurance company obtains the right to file claims that insured or policyholder have in case that the insurance company pays the losses caused by the 3rd party, not policyholder or insured. However, I think the Supreme Court deliveres the wrong interpretation of the policy wording by judging the context centered on the 3rd party even if it acknowledges the employer liability by lessee. The insured is the person who has an insurable interest(the right to file a claim) in the non-life insurance and, therefore, in this case, the insurance company does not have any reasons to protect lessee because lessee is deprived of the right to file a claim. The aforementioned lessee is construed as "3rd party" because he or she is substantially not an insured, even if the person is externally the insured. In the non-life theory, there does not exist the contradictory relationship such as insured without having the right to file a claim or non-insured with the right to file a claim. In other words, the right to file a claim is limited to the insured only, and the person without the right to file a claim is not the insured. If he or she is the insured in the external context, the person is not entitled to enjoying the insurable interest forever. Even if he or she is the insured in the external context, the person will no longer retain the insured status once the insurable interest does not exist, thus making the faithfully interpreted wording applied to individual insured

중국의 비영리조직(NPOs) 성장과 시민사회발전

박윤철 ( Yoon Chul Park ) 중국학연구회 2005 중국학연구 Vol.- No.33

대만의 정치사회적 독점구조의 균열과 변형

박윤철 ( Yoon Chul Park ) 민주사회정책연구원 2007 민주사회와 정책연구 Vol.12 No.-

중국의 환경정책 분석

박윤철 ( Yoon Chul Park ) 한국외국어대학교 외국학종합연구센타 중국연구소 2006 中國硏究 Vol.38 No.-

일반연구논문 : 타보험계약 통지의무위반시 효과에 관한 연구 -상법 개정안 중심으로-

박윤철 ( Yoon Chul Park ) 한국법정책학회 2012 법과 정책연구 Vol.12 No.4

The revised version of Commercial law allows insurer to cancel the insurance contract during the exclusion period with new article 672-2 (policyholder`s obligation to report more than two insurance contracts) in case that policyholder, insured and others violate their obligation to report the other insurance contracts. The revised version as above is a newly added law clause which reflects the precedents and the development of insurance industry sustained by the socio-economic growth, thus clarifying the article concerning the effect on the violation of the policyholder`s obligation to report other insurance contract, which is considered as an incomplete legal article. It also can materialize the principle of indemnity serving as the fundamentals of insurance system by stipulating the rule on obligation to report the other insurance contract , and can prevent the moral risk among the insurance contract parties in advance. However, the Article 672-2 of the revised Commercial law has the following problems; Firstly, the revised version on the obligation to report other insurance contract is the rule that does not take into account the insurance consumer in a relatively weaker position in the society, and thus it is seen as revision favorable to insurer. Secondly, the application of this revised version is not specified clearly. Given that the purpose of stipulating the right to cancel the insurance contract at the time of violation of the obligation to report the other insurance contract lies in both stating specifically the rule on the effect of violation of the obligation to report the other insurance contract and preventing the unlawful gains associated with fraudulent insurancecontract, I find it very necessary to clearly state the scope to apply the cancellation rights. In the thesis I found out the trend of the theory and precedents on the obligation to report the other insurance contract , and then reviewed the purpose of revising the current Commercial Law and its problems by comparing and analyzing the article of the current Commercial law and its revised version based on the findings, conclusively presenting the modified suggestion on the problems identified.

대만의 사회구조적 특징과 경제발전; 비교사회학적 관점에서 한국과 비교

박윤철 ( Yoon Chul Park ) 한국외국어대학교 중국연구소 2014 中國硏究 Vol.60 No.-

This study tries to explore the socio-structural characteristics of economic development in Taiwan, and to point out its problems to come out at present and also forecast its future. Firstly, the Taiwanese government(KMT) did not privatize the properties that the Japanese colonial government left, but nationalized them. Secondly, the state-owned enterprises already monopolized or oligopolized the domestic market, so did not pay attention to the export-oriented policy. Under this condition, the small and medium-sized enterprises led the export-oriented economic development. Thirdly, Taiwan government(KMT) played more important and positive role than Korean government in term of entrepreneurial state in high growth period. Fourthly, Taiwan economy is confronted by some problems after the high growth economic development period. On the one hand, however the concentration of economic power in Taiwan is less deepening than one in South Korea, it is more and more deepening. On the other hand, Taiwanese economy gradually depends on Chinese economy because of China effects.

대만의 현재와 미래 - 정치 , 경제 , 사회 대만의 정권교체와 사회의 재구조화

박윤철(Yoon Chul Park) 서강대학교 동아연구소 2001 東亞 硏究 Vol.- No.40

N/A

중국 개혁개방 후 국가와 사회의 재구조화 : 사회조직의 활성화를 중심으로

박윤철(Yoon Chul Park) 한양대학교 아태지역연구센터 2001 중소연구 Vol.24 No.4

자동차책임보험에서 혼동과 관련한 문제점과 개선방안

박윤철(Park, Yoon-Chul) 한양법학회 2015 漢陽法學 Vol.26 No.4

Bodily Injury Liability (I) in the Automobile Liability Insurance is a compulsory insurance which does not have any exclusion clause on the death or bodily injury of insured’s family members such as parent, spouse and children, etc, unlike bodily Injury Liability(II) which is the voluntary insurance. Then, regarding the family members’ deaths being admitted as the 3rd party, the right to claim the damage can be ceased due to the confounding effects in Civil Law in the event that the deceased family member(victim) inherits both the claim for damage towards insured and the insured’s liability for damage towards the family members simultaneously when the insured alone or both insured and family member die of the car accident. If this happens, the family of the deceased is not allowed to benefit from Automobile Insurance , despite that the deceased person is considered as the 3rd party to the insured For example, in a particular case that the perpetrator becomes a heir of the deceased, the Automobile Insurance Company as the 3rd party is allowed to deny the claim payment or make the graded payment depending on the accidental situation associated with the confounding effect in Civil Law, regardless of the confounding effect triggered by the inheritance. Besides, in the event that the perpetrator relinquishes the right to claim the damage inherited from the deceased family member lawfully, the other heir is entitled to receive the automobile insurance claim which corresponds with the relinquished share of inheritance. This case is contradictory to the original intent of Automobile Insurance aimed at protecting the injured party and is also not in accordance with the fairness. I will hereafter look into various problems associated with the confounding effect and its improvement plans .

양측 액와 유방 접근 내시경 갑상선 절제술에 대한 5년간의 분석

박윤철(Yun Chul Park),유영재(Young Jae Ryu),조진성(Jin Seong Cho),윤정한(Jung Han Yoon),박민호(Min Ho Park) 대한갑상선-내분비외과학회 2015 The Koreran journal of Endocrine Surgery Vol.15 No.2

Purpose: We investigated the efficacy and safety of endoscopic thyroidectomy using bilateral axillo-breast approach (BABA) by analyzing short term surgical outcomes. Methods: We retrospectively evaluated 355 patients who underwent BABA endoscopic thyroidectomy between August 2006 and December 2011 at Chonnam National University Hospital and Hwasun Chonnam National University Hospital. The age, sex, clinical and pathologic characteristics of tumors, extent of operation, conversion rate to open thyroidectomy, operation time, hospital stay, thyroglobulin levels after thyroidectomy, recurrence, and complications were analyzed retrospectively. Results: The mean age of the patients was 35 years. The 355 patients comprised 345 females (97.2%) and 10 males (2.8%). The benign tumor was 37 cases (10.4%) and the malignant tumor was 318 cases (89.6%). 28 patients (75.7%) of the benign tumor underwent lobectomy. In malignant tumor, 159 patients (50.0%) underwent lobectomy and 152 patients (47.8%) underwent total thyroidectomy. Mean operation time was 121.1±49.9 minutes, and mean hospital days were 3.4±1.1 days. 21 (6.0%) transient hypocalcemia and 7 (2.0%) permanent hypocalcemia were occurred. The transient voice change occurred in 5 patients (1.4%), but nobody suffered from the permanent recurrent laryngeal nerve injury. 4 patients of recurrent (1.3%) papillary thyroid carcinoma were treated by surgery. Conclusion: Compare to open thyroidectomy with long term follow up studies, BABA endoscopic thyroidectomy is a useful treatment option for both benign and malignant thyroid tumor.