@article{ART003145113},
author={Hwang Junghye},
title={Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?},
journal={Legal Theory & Practice Review},
issn={2288-1840},
year={2024},
volume={12},
number={4},
pages={447-466}
TY - JOUR
AU - Hwang Junghye
TI - Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?
JO - Legal Theory & Practice Review
PY - 2024
VL - 12
IS - 4
PB - The Korea Society for Legal Theory and Practice Inc.
SP - 447
EP - 466
SN - 2288-1840
AB - In order to resolve information asymmetry in insurance contracts when concluding insurance contracts, insurers are required to explain terms and conditions to the policyholders as mandatory provisions, thereby protecting the policyholders, who are relatively weak. Since insurance contracts are contracts concluded by terms and conditions, this obligation is imposed on insurers to prevent unexpected disadvantages from occurring due to important terms and conditions that the policyholders are unaware of. This obligation has expanded and strengthened good faith from the perspective of realizing the maximum duty of good faith of insurers worldwide in order to protect insurance consumers, who are relatively weak in concluding insurance contracts. The majority opinion and the attitude of the courts also accepted the perspective of the intention theory that the contract is concluded based on the intention of the policyholder, and therefore, the unexplained terms and conditions do not reflect the intention of the policyholder, and therefore, the insurer cannot assert the unexplained terms and conditions as the content of the contract according to the Terms and Conditions Act, and therefore, a more active obligation to explain terms and conditions is requested to protect the policyholders. However, although an insurance contract is a contract of credit between the insurer and the policyholder, the characteristic of the group nature of the policyholders sharing the risk must be taken into consideration. Due to the insurer's breach of the duty to explain, the insurer cannot assert the relevant terms and conditions, so the insurer protects the policyholder and assumes a liability for the insurance, but many policyholders end up sharing the loss resulting from the risk. Although the insurance terms and conditions should impose the same liability for all policyholders, the principle of equal treatment of policyholders is not realized because specific and individual matters are reflected. In the event of an insurance accident, the breach of the duty to explain the terms and conditions has become a matter that must be reviewed in most cases, and it is a reality that acts as a factor that further aggravates the dispute. Meanwhile, in the event of the insurer's breach of the duty to explain the terms and conditions, the policyholder can exercise the right to cancel, and the starting point is considered to be the date of insurance contract formation. However, since the insured becomes aware of the breach of the duty to explain the terms and conditions only when the insured accident occurs, there is a problem with the starting point, and when compared to the duty to notify, which is in an equal relationship with the insurer's duty to explain the terms and conditions, the starting point and the limitation period work in favor of the insurer, so that the duty to notify causes the disadvantage of contract termination in the event of non-performance, but although it seems that the disadvantage of contract termination occurs in the event of non-performance of the duty to explain, the actual termination of the insurance contract is disadvantageous to the insured, so the insurer does not urge performance of the duty to explain. In response to these problems, I would like to suggest improvements centered on the duty to explain the terms and conditions under the Commercial Act. First, the starting point and limitation period of the right to cancel should be considered in consideration of the insured's duty to notify and fairness, and second, the improvement plan should be to approach the case where damage occurs to the insured as liability for damages rather than exclusion from the contract in the event of non-exercise of the right to cancel as an approach.
KW - insurance contract;duty of explanation;collective nature;individual nature; good faith
DO -
UR -
ER -
Hwang Junghye. (2024). Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?. Legal Theory & Practice Review, 12(4), 447-466.
Hwang Junghye. 2024, "Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?", Legal Theory & Practice Review, vol.12, no.4 pp.447-466.
Hwang Junghye "Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?" Legal Theory & Practice Review 12.4 pp.447-466 (2024) : 447.
Hwang Junghye. Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?. 2024; 12(4), 447-466.
Hwang Junghye. "Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?" Legal Theory & Practice Review 12, no.4 (2024) : 447-466.
Hwang Junghye. Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?. Legal Theory & Practice Review, 12(4), 447-466.
Hwang Junghye. Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?. Legal Theory & Practice Review. 2024; 12(4) 447-466.
Hwang Junghye. Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?. 2024; 12(4), 447-466.
Hwang Junghye. "Does the Effect of Violating of the Duty to Explain the Insurance Clauses, Protect Policyholders?" Legal Theory & Practice Review 12, no.4 (2024) : 447-466.
