現行 自動車保險約款上 無免許·飮酒運轉 免責約款의 解釋論 : 對人賠償 II와 自己身體事故保險을 對象으로 = Exception Clauses for Unlicensed or Driving in a Drunken Condition in Bodily Injury Liability II and Personal Accident Insurance Contracts

다국어 초록 (Multilingual Abstract)

In reality, insurance is exposed to subscribers' moral hazards in that the insured amount a subscriber can receive in case of an accident is much higher than the accumulated amount of premiums he/she has paid. Drunken driving is a typical moral hazard.
According to the decisions of Constitutional Court and the Supreme Court in Korea, an insurer in personal accident insurance is not indemnified against drunken subscriber's driving. It is highly likely to be against the constitutional principle of equality to unicirmly apply the high rate of insurance premium to all subscribers including those who sill never perpetrate such flagrant acts. An attempt for drunken driving which involves a high hazard of an accident shall not be protected by insurance from the viewpoint of good faith and ethics that the insurance system has or the need for homogeneous hazards among the group of subscribers. Except in the case of tis compulsory third party liability insurance part, automobile insurance is a private insurance and thus the state should reduce its guardian role fr it and allow the extent of self-regulation concerning the cxception clauses to be expanded, eventually letting the insurer to exclude a criminal or high-hazard act like drunken subscriber's driving from the insurance protection. In this respectm the afore-mentioned judgments by the Constitutional Court or the Supreme Court can be said to put too much restriction on the freedom of business, the freedom of occupational exercise and the freedom of a contract Articles 10 and 15 of the Constitution of Korea which are guaranteed by the Korean Consititutional law.
The position of the Constitutional Court or the Supreme Court in Korea is that, though drunken driving is a kind of an intentional criminal act, the intentionality just concerns the act of drunken driving, not extending directly to personal injury and loss of life, unless there are other circumstances involved. In case the Constitutional Court and the Supreme Court adhere to the position that the exception clause for an insurer in personal accident insurance can be accepted only when the intentionality for personal injury or loss of life is proven, it might endanger the existence of personal accident insurance.
For this reason, schoalrs are talking about the need for annulment of the Commercial Law, Article 732-2 and reconsideration of the range of the application of Article 663 of the same Law.

목차 (Table of Contents)

• Ⅰ. 序論
• Ⅱ. 對人賠償 Ⅱ에서 無免許ㆍ飮酒運轉 免責約款
• 1. 無免許運轉 免責約款
• 2. 飮酒運轉 免責約款
• Ⅲ. 自己自身事故保險의 無免許ㆍ飮酒運轉 免責條項의 有效性 問題
• 1. 序論
• 2. 憲法裁判所 및 大法院의 見解
• 3. 批判