미국보험법에 있어 신체훼손

노일석 ( Il Seok Noh ) 한국금융법학회 2013 金融法硏究 Vol.10 No.1

Accident and health insurance means insurance against death or personal injury by accident or by an specified kind or kinds of accident and insurance against sickness, ailment or bodily injury. Accident insurance helps insured and insured`s family from financial hardships if insured dies or suffers a serious injury in an accident. In general insurer agrees, subject to the provisions of insurance policy, to immediately pay to the beneficiary or beneficiaries, in addition to the other benefits provided by the policy, the amount of additional accidental death benefit specified in the policy specifications, if due proof is furnished to the insure at its home office that the Insured, while this policy is in full force and effect, has suffered the loss of life as direct result of bodily injury, independent of all other causes, effected solely through external, violent and accidental means, as evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning or internal injuries revealed by an autopsy), and that the date of death occurred within ninety days after such injury. The payment of benefits under policy of accident insurance or the accident provisions of a life policy is typically conditioned upon death or injury resulting from "accident" or "accidental means". To this may be added the further requirement that the misfortune is caused "externally" and "violently". Where the death or injury is occasioned by some force other than a physical impact of a type and magnitude likely to produce the ensuing result, there arises an question these provisions of the policy have been satisfied in such a manner as will permit recovery. There are relatively few cases where the dispute was wether a death or injury resulting from an emotional disturbance, such as shock, fright, or other "psychic trauma," is within purview of such policies despite the absence of causative physical contact between the body of the insured and the force alleged to have produced the death or injury. Some policies expressly define bodily injury to include emotional distress. Most do not. When policies do not some courts have held that a claim for emotional stress still constitutes a claim for bodily injury, but most have correctly held to the contrary, with one proviso. The proviso is that even in those states that have held that emotional distress does not constitute bodily injury, some courts have correctly ruled that if the plaintiff`s emotional distress has resulted in physical manifestations, a bodily injury is involved. Accident insurance policies frequently qualify their coverage by requiring that the accident which triggers or increased indemnity be evidenced in a certain manner, such as by "external visible sign," "visible contusion or wound," "physical contusion or wound" or similar requirements. Under a policy requiring bodily injury effected solely through external, violent, and accidental means as evidenced by a visible contusion or wound on the exterior of the body, it is not required that death be the result of the wounds found on the exterior of the body. In determining what is an visible mark of injury on a body, the term "visible" is used in the broad sense of perceptible, discernable, clear, distinct, and evident. Such a provision requires some manifestation, abnormal in its nature and affecting the physical person, the existence of which may be ascertained by observation or examination. Visible injuries or marks need not be bruises, contusions, lacerations, or broken limbs, but may be internal injuries the existence of which may be outwardly indicated or perceived through observation or examination of the insured. Many jurisdictions adhere to the view that the term "accidental means" is distinct from, and requires a different causal analysis, than the terms "accident," "accidental injury," "accidental death," "accidental result," and the like. As this distinction narrows coverage considerably, it is not currently favored by consumers or by growing number of state insurance departments. Basically, the distinction is grounded on the idea that "means" is synonymous with "cause," that the difference between "accidental means" and the other aforementioned terms is the difference between cause and effect ; that insurance against death or injury by "accidental means" is not insurance against death or injury by accident or as an accident result; and that hence death or injury is not incurred by "accidental means" merely because the effect or result is accidental in the sense that it is unforeseen, undesigned, unusual, and unexpected. The distinction between loss due to "accidental means" and loss due to "accident" was, at one time, generally accepted by most courts. In recent years, however, an increasing number of jurisdictions have rejected the distinction in favor of treating the terms as legally synonymous, at least in the absence of comprehensible and different definition of the relevant terms in the policy. Under this view, the term "accidental" is equally descriptive of means which produce effects which are not their natural and probable consequences, as it is of means which are wholly unexpected.

기타 : 보험수익자(保險受益者)의 지정(指定),변경(變更)

노일석 ( Il Seok Noh ) 한국금융법학회 2010 金融法硏究 Vol.7 No.2

The Beneficiary of life insurance is the person the policyowner designates to receive the benefits payable when the insured dies. The right to designate the beneficiary is the most important right the policyowner has. The right to change the beneficiary is also an important right of the policyowner. A clear, current beneficiary designation is extremely important to the policyowner, the beneficiary, and the insurer. It is important to the policyowner, because she purchased the insurance primarily to benefit a certain person or persons. Most modern life insurance contracts of USA define the rights of a policyowner to change the beneficiary in a policy provision such as "your change-of-the beneficiary request will not be effective until recorded by us at our Home Office". The Article 733(Right to designate or change beneficiary) of the Korean Commercial Code(KCC) provides as the following: "Article 733(Right to designate or change beneficiary) (1) The policyholder is entitled to designate or change the beneficiary (2) If the policyholder has died without exercising the right of designation mentioned in paragraph (1), the insured shall be the beneficiary, and in case where the policyholder has died without exercising the right of change mentioned in paragraph (1), the right of the beneficiary shall be settled: Provided, that this shall not apply where there is an agreement by which the policyholder`s successor may exercise the right mentioned in paragraph (1) in the case of the policyholder`s death. (3) If the beneficiary has died during the cover period, the policyholder may re-designate any other beneficiary. In such a case, if the policyholder has died without exercising the right designation, the inheritor of the beneficiary shall be a beneficiary (4) If the insured event occurs before the policyholder`s exercises the right of designation as referred to in paragraphs (2) and (3), the inheritor or beneficiary shall be a beneficiary". Article 30 of the Korean Civil Code provides as the following: "Article 30(Simultaneous Death). In case two or more persons died of the same peril, it is presumed that they died at the same time". This Article deals with diverse and ambiguous problems concerning with the Article 733 of the KCC. We will review such problems as non-designation of beneficiary, designated beneficiary as a inheritor, the death of inheritor of the beneficiary, change of the beneficiary, simultaneous death and the beneficiary, and other diverse relevant problems.

미국 상해보험의 면책조항

노일석 ( Il Seok Noh ) 한양대학교 법학연구소 2014 법학논총 Vol.31 No.1

The term “accident” lends itself to differing interpretations. Indeed, few issues so confound courts and litigants as when deaths are to be considered accidents within the meaning of insurance policies affording accidental death coverage. The Wickman v. Northwestern National Insurance Co. framework is perfectly suitable, so long as courts apply it carefully and without modification. Under Wickman, again, a court first analyzes the insured`s reasonable expectations. If the insured did not expect to suffer an injury similar to that suffered, the court must “examine whether the suppositions which underlay that expectation were reasonable.” If the insured`s suppositions are judged to be unreasonable, then the injuries will be deemed non-accidental. In determining the reasonableness of the insured`s suppositions, the court should view matters from the insured`s perspective and take into account the insured`s personal characteristics and experiences. The first prong, therefore, is essentially subjective. Second, if the insured expected to survive, or if the court cannot ascertain the insured`s subjective expectations because of insufficient evidence, then it should objectively analyze the insured`s expectations. In this analysis, one must ask whether a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured`s intentional conduct. The objective prong does not permit simplistic reasonable foreseeability analysis, as the requirement that a court consider whether the injury was “highly likely” makes clear. Drunk driving is a scourge. Most motor vehicle crashes are traceable to some failure of judgment that fully reveals its dangers only when it is too late. The fact that drunk drivers` deaths may be publicly perceived as senseless, as the natural cost of obvious negligence or recklessness, or as reprehensible acts of stupidity, does not mean that they are not accidental. The reasoning of courts that hold that the death of a drunk driver is not “accidental” is frustrating, in part because it is often unnecessary. Some policies even contain clauses that specifically preclude coverage for deaths that result from the insured`s driving while intoxicated. Insurer`s exclusion for the drunk drive should be under the exclusion that specifically precludes coverage for deaths that result from the insured`s driving while intoxicated. Some of the most difficult causation issues arise when the insured suffers injury or death in circumstances which indicate that the harm suffered may be attributable, in whole or in part, to disease or disorder which arguably preceded any accident that may have occurred, and/or from medical procedures that have been performed on the insured because such a disease or does, or is suspected to, exist. The resolution of coverage disputes in such circumstances implicates the full range of policy language, from the basic coverage triggers of an accident and the like, to requirements of bodily injury and causation and, may call into play a wide array of specific exclusions, from broad attempts to avoid coverage when any condition that can be classified as a disease or ailment plays any role in producing the harm for which recovery is sought, to narrow exclusions that exclusions that specifically target named diseases or ailments. There is a distinction between death caused by a disease which was itself induced by the accidental injury, and the aggravation of existing disease by an accident, with the former being regarded as within the provisions of policies limiting covery to injuries solely from accident or the like, as disease is then itself an effect of an accidental injury, a mere link in the chain between the accident and its ultimate effect of bodily injury or death. Where the accident is itself the cause of the disease, the accident is manifestly deemed the cause of the death even though the disease contributed thereto, and the death is solely from accidental injury. A pre-existing disease does not prevent recovery on an accident policy if the accident would still have happened had the disease not existed. for, in such a case, the pre-existing condition cannot be regarded as a cause or as the proximate cause of the accident or of the harm sustained. Under the principles of causation generally applicable to determinations of insurance coverage, injury or disability resulting from medical treatment for an accident that was itself within the coverage of an accident insurance policy is proximately caused by the accident, hence also within coverage of the policy, even fi the policy also contains an explicit cxclusion for death or injury from medical treatment. When the insured undergoes medical treatment for the purpose of curing a disease or other unhealthy or abnormal condition which has not itself been produced by a covered accident, the mere fact that insured dies or is injured as a result of such treatment does not bring the loss within coverage. Injury or death from a medical procedure has been found to be within coverage despite the fact that there was no discernible negligence or mishap during the procedure. There is considerable authority that where an event occurs in the course of medical procedures which is from an error or mishap, rather than from the normal procedure itself, the harm is unusual or unexpected and not likely to be foreseen, hence there is an accident, or the event is accidental or is produced by accidental means, within the coverage of the policy.

연구논문 : 미국 보험상호회사의 비상호화

노일석 ( Il Seok Noh ) 한국금융법학회 2005 金融法硏究 Vol.2 No.2

The insurance industry is, regardless of its product, is organized under two basic corporate structures. One is a stock company, the other is a mutual company. A stock insurance company is owned by its shareholders. A mutual insurance company has no shareholders and is instead owned by its policyholders. At the end of 1999, 1470 life insurance companies were in the United States. Although mutual companies account for only 106 of the 1470 life insurance companies(7% of the total), they accounted for 21% of the total insurance assets, 17% of premium income, and 36% of life insurance in force. Since 1996, some mutual life insurance companies have either completed or announced plans to reorganize into a different corporate structure. One might wonder why changing the corporate structure has become attractive to mutually owned companies in recent years. The answer to this question lies in the dynamics of the financial services industry in which the life insurance is a part. Demutualization and smaller firms`` competitive shortcomings ensure that the trend towards consolidation and convergence will continue in the coming years. Many mutual life insurance companies see themselves as significantly handicapped in competition against their larger and more diverse publicly-held stock competitors. Mutual life insurers have no authority to issue shares of capital stock and consequently have limited access to market sources of permanent equity capital. A mutual company can raise capital, primarily, only through generating and retaining earnings. There are sizeable risk-based capital requirements and other significant regulatory controls and restrictions for mutual insurance company to acquire a subsidiary company, depending on the size of the acquisition. At least five merits drive the trend toward the restructuring of the mutual life insurance companies: a need for increased access to capital and financial flexibility; enhanced corporate structure flexibility; ability to use stock as an acquisition currency; management recruitment and accountability; and tax savings. The conversion of a mutual life insurance company to a stock life insurance company is typically accomplished by one of two methods-a full demutualization or the formation of mutual life insurance holding company (MHC). Both of these options enable the mutual company to raise capital by issuing stock. In a full demutualization, the ownership interests in the mutual company are extinguished in exchange for cash or stock of the controlling entity. Thus the members receive an immediate, direct economic benefit. The controlling entity can be either the stock life insurance company into which the mutual life insurance company is converted or an existing or newly formed stock holding company that owns all of the stock of the converted mutual company. Generally, as an integral part of the process, the new stock holding company conducts an initial public offering (IPO) of its stock. Although most stock holding company is formed by the mutual company as a part of the demutualization process, there is no reason an affiliated company could not sponsor a mutual life insurance company`s demutualization and provide to the coverting mutual`s policyowners cash or stock consideration in exchange for the extinguishment of their membership interests. In an MHC reorganization the mutual insurance company restructures itself by organizing into two separate entities-an mutual holding company and a stock insurance company. The policyowners`` membership interests in the mutual life insurance company are exchanged for membership interests in the newly-formed MHC. As a result, the policyowners`` membership interests in the MHC will be similar to their membership interests in the mutual life insurance company prior to the reorganization. No consideration is distributed to the policyowners in an MHC reorganization because the membership interests are not extinguished, as they are simply transferred to th MHC. The contractual rights provided by their policies remain the obligation of the insurance company. Future owners of policies issued by the stock insurance company receive membership interests in the MHC. The stock insurance company-or an intermediate holding company that is interposed between the MHC and the stock insurer-can sell securities to the public, subject to the limitation that the MHC must own, directly or indirectly, not less than a majority of the voting stock of the insurance company. Most states have laws allowing mutual life insurance companies to convert to stock companies. These laws require approval of the plan of conversion by the company`s board of directors, policyowners, and regulators. While state demutualization may authorize several possible methods of demutualizing, the general process has become fairly standard. Once a decision is made to pursue an full demutualization, management of the mutual life insurance company prepares a plan of conversion that complies with state law. The first official act in a demutualization is the adoption of the plan of conversion by company`s board of directors. Demutualization statutes require that the plan of conversion be approved by an supermajority of the members voting. After approval by the company`s board of directors, the plan of conversion must be submitted to insurance regulator of the company`s state of domicile. For a variety of reasons, many mutual life insurance companies are reluctant to pursue a full demutualization. Following the decision to initiate an MHC reorganization, the mutual life insurance company`s management prepares a plan of reorganization that complies with state law. As in a full demutualization, the first official act in a MHC reorganization is adoption of the plan of the reorganization by the board of directors. All jurisdiction that have enacted MHC laws require the plan to be approved by an vote of eligible members. All jurisdictions require the insurance regulator of the state in which the mutual life insurance company is domiciled to approve the proposed MHC reorganization. If a MHC decides to move forward with a Phase II IPO, it will follow a process very similar to the process of a full demutualization. The restructuring of a mutual life insurance company has important consequences to its owners, who are also its customers. Our country`s insurance business law regulates mutual insurance company, but there is no mutual insurance company in our country. Therefore there is no practical need to discuss a conversion of a mutual insurance company. However, if there will exist a mutual insurance company in our country, we can adopt the debates regarding a demutualization in the United States.

남자 청소년 폭력사범 재범 예측 요인

노일석(Noh Il-Seok) 한국형사법무정책연구원 2010 형사정책연구 Vol.83 No.-

무보험자동차에 의한 상해보험특약과 중복보험

노일석(Noh, Il Seok) 인하대학교 법학연구소 2011 法學硏究 Vol.14 No.3

우리 대법원은 무보험자동차에 의한 상해보험특약에도 중복보험에 관한 상법 제672조 제1항이 준용되는지 여부에 관하여 적극적인 입장을 취하여 “피보험자가 무보험자동차에 의한 교통사고로 인하여 상해를 입었을 때에 그 손해에 대하여 배상할 의무자가 있는 경우 보험자가 약관에 정한 바에 따라 피보험자에게 그 손해를 보상하는 것을 내용으로 하는 무보험자동차에 의한 상해담보특약(이하 ‘무보험자동차특약보험’이라고 한다)은 상해보험으로서의 성질과 함께 손해보험으로서의 성질도 갖는 손해보험형 상해보험이므로, 하나의 사고에 관하여 여러 개의 무보험자동차특약보험계약이 체결되고 그 보험금액의 총액이 피보험자가 입은 손해액을 초과하는 때에는 손해보험에 관한 상법 제672조 제1항이 준용되어 보험자는 각자의 보험금액의 한도에서 연대책임을 지고, 이 경우 각 보험자 사이에서는 각 자의 보험금액의 비율에 따른 보상책임을 진다.” 라고 판결하였다. 위 대법원 판결은 “배상할 의무자가 있는 상해보험에서 복수의 상해보험계약이 체결된 경우 그 보험금액의 총액이 피보험자의 손해액을 초과한 때”라고 하여 ① 배상할 의무자가 있을 것, ② 보험금액의 총액이 피보험자의 손해액을 초과한 때라는 것을 조건으로 무보험자동차특약보험에 중복보험에 관한 규정의 준용을 긍정하고 있다. 이 판결에 대해서는 1) 배상할 의무자가 있을 것을 중복보험에 관한 규정의 준용요건으로 할 수 있는지, 2) 무보험자동차특약보험의 경우 지급되는 보험금액은 사망보험금, 후유장해보험금, 입원보험금, 간병보험금 등 여러 가지 형태의 보험금이 지급되는 데 그 중에서 수술비 등 몇 몇 예외를 제외하고는 지급되는 보험금은 ‘손해’액이 아니라 ‘손실’액이라고 할 수 있으므로 중복보험에 관한 규정을 적용하는 것이 타당한지 의문이 제기될 수 있다. 동 판결은 무보험차에 의해 상해를 입은 피보험자가 가해자에 대하여 손해배상청구권을 가지는 경우 피보험자와 가해자 사이의 손해배상의 문제가 되고 그것을 담보하는 상해보험은 손해보험의 성질을 가지므로 여러 명의 상해보험자가 있는 경우 그들 사이에는 중복보험의 규정이 적용된다고 하는 것이다. 그러나 상해보험에 중복보험에 관한 규정이 적용되느냐는 피보험자가 제3자에 대하여 손해배상청구권을 가지느냐에 의해 결정되는 것이 아니라 보험자의 피보험자에 대한 급부가 정액배상의 성질을 가지느냐 손해배상의 성질을 가지느냐에 의해 결정된다고 할 것이다. 상해보험의 경우 보험회사가 가해자에 대하여 피보험자의 손해배상청구권을 대위한다 하여 상해보험에 중복보험에 관한 규정이 적용된다고는 할 수 없고 상해보험으로 인한 피보험자에 대한 급부가 어떠한 성질의 것이냐에 따라 중복보험규정의 적용여부가 결정된다고 할 것이다. 원래 중복보험은 손해보험에서 문제가 되는 것이고 손해보험의 일종인 책임보험에 대해서도 상법 제725조의2(수개의 책임보험)에 의해 중복보험에 관한 상법 제672조가 준용되고 있다. 무보험차에 의한 상해이든 보험차에 의한 상해이든 상해를 입은 피보험자가 수개의 상해보험에 가입한 경우 중복보험에 관한 규정이 준용되는지는 그 상해보험이 손해보험성을 가지느냐에 의해 결정될 것이다. 무보험차상해보험에 중복보험에 관한 규정이 적용되는지 여부는 그것이 정액보험인지 손해보험인지에 따라 그 결론이 달라진다고 할 수 있다.

株主代表訴訟에 관한 硏究

노일석(Il-Seok Noh) 성신여자대학교 법학연구소 2003 성신법학 Vol.- No.2

미국의 약복용으로 인한 사망과 보험

노일석(Noh Il seok) 한국보험법학회 2015 보험법연구 Vol.9 No.2

결합기업에 관한 연구

노일석 한국상사법학회 2000 商事法硏究 Vol.19 No.1

財閥에서의 社會法的 問題

권기범,권영애,노일석,유진희 한국상사법학회 1996 商事法硏究 Vol.15 No.1