The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At...
The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At the time of Lord Mansfield, 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 reform of law in the field of warranty 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 new regime of warranty in the Insurance Act 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 term and 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 from the 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 remedied where 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 to which the warranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a term of an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that term should only give the remedy in relation to loss of that particular kind of loss, or at a particular location/time. Finally, whether a term of an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based on whether compliance with that ther would tend to reduce the risk of the occurrence of that category of loss.
The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At the time of Lord Mansfield, 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 reform of law in the field of warranty 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 new regime of warranty in the Insurance Act 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 term and 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 from the 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 remedied where 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 to which the warranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a term of an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that term should only give the remedy in relation to loss of that particular kind of loss, or at a particular location/time. Finally, whether a term of an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based on whether compliance with that ther would tend to reduce the risk of the occurrence of that category of loss.
영국 보험법 상 담보(warranty)는 보험계약의 일개 조항에 불과하지만, 법률 상 특별한 계약조항을 의미하고, 또한 당해 조항의 위반은 일반계약법 상 담보위반과 는 다른 독특한 결과를 초래하기 때문에 특유한 법원칙을 형성한다. 영국 보험법 상 담보에 관한 법원칙은 지나치게 보험자 우호적인 법원칙으로서 계약당사자 간 이익균형을 심각하게 훼손하는 법원칙이고, 담보라는 용어는 ‘법률용어 중 가장 악용되는 용어의 일례’로서,1) 법률가의 입장에서도 난해한 개념이며, 정의 및 형평성을 결여한 개념으로 인식된다.2)
영국 보험법 상 담보의 법적 성격은 어떠한가?
10) 이러한 관점에서 영국 보험법 상 담보의 법적 성격을 간략하게 개관하자면 다음과 같다.11) 즉, 첫째, 보험계약과 관련하여 특정한 계약조항이 담보로서의 성격을 갖는지 여부에 관한 판단문제는 상당히 난해한 문제로서, 계약조항의 분류에 대한 법원의 해석을 요하는 작업이다.12) MIA 1906 제35조 (1)항에 의하면, “명시담보는 담보의 의사가 추론될 수 있는 것이라면 어떠한 형식의 문언으로도 가능”하기 때문에 일개 계약조항에 대하여 담보로서의 법적 지위를 부여하기 위한 특정한 요건 또는 형식이 요구되지는 않는다.
영국 보험법 상 담보는 어떻게 정의되는가?
영국 보험법 상 담보는 “해당 담보에 의거하여 보험계약자가 특정한 행위의 이행 또는 금지를 약속하거나, 특정한 조건의 충족을 약속하거나, 또는 특정한 사실 상태의 존재를 긍정하거나 부정하는 것”으로 정의된다.6) 보다 구체적으로 언급하자면, 담보는 보험계약의 일개 조항(term)으로서 명시조항 또는 법률의 운용7)에 의 거하여 보험계약자가 보험계약체결 전에 과거 또는 현재 사실에 대하여 행한 진술의 진정성을 확인하거나, 보험계약의 체결 후 특정한 의무나 행위의 이행 여부에 대한 확약이라고 정의할 수 있다.
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