Korea Trade Review (무역학회지)

Korea Trade Research Association (한국무역학회)
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A Study on the Origin and Current Status of the Utmost Good Faith in the Marine Insurance Act -Focused on the Carter v. Boehm case-

영국해상보험법상 최대선의의무의 기원과 최근 동향에 관한 고찰 - Carter v. Boehm 사건을 중심으로 -

  • Received : 2019.03.07
  • Accepted : 2019.04.21
  • Published : 2019.04.30
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Abstract

Article 17 of the Marine Insurance Act (MIA) states that "A contract of marine insurance is a contract based upon the utmost good faith, and if the utmost good faith be not observed by either party, the contract may be avoided by the other party." In the Carter v. Boehm case, Lord Mansfield was the first to provide a comprehensive description of the duty of utmost good faith, which is analyzed here. This judgement not only laid the foundation for the Modern English Insurance Act, but it also influenced the draft of the English Insurance Act of 2015, which aimed at correcting distortions that occurred during the application of statue law and common law thereafter. The duty of utmost good faith, applied between Lord Mansfield's insured and insurer presents the context of information asymmetry of the insured and insurer entering contracts. In the absence of information asymmetry, in contrast to the effects of being in both sides of the duty of utmost good faith, alleviating the duty of disclosure of the insured, and it is also clear that the warning of the severity of the retrospective avoidance of the breach of duty of disclosure and the need for its limited application have already been pointed out. Furthermore, considering the principle of retrospective avoidance, the duty of utmost good faith should be understood as a concept limited to the duty of disclosure before a contract is concluded

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References

  1. Atiyah, P. S. (1995), An Introduction to the Law of Contract(5th ed.), Oxford: Clarendon Press.
  2. Bennett, H. N. (1999), "Mapping the Doctrine of Utmost Good Faith in Insurance Contract Law", Lloyd's Maritime and Commercial Law Quarterly, pp.179-190.
  3. Chae, I-Sik (2003), Lecture of Commercial Law, Seoul: Parkyoungsa.
  4. Chalmers, M. D. and D. Owen (1913), The Marine Insurance Act 1906(2nd ed.), London: Butterworth & Co.
  5. Choi, Jun-Sun (2005), Insurance Law.Maritime Law, Seoul: Samyoungsa.
  6. Choi, Mi-Soo (2017), "A Study on the Effect on Breach of the Duty of Disclosure in Trade Insurance", Journal of International Trade and Insurance, 18(2), pp.215-239. https://doi.org/10.22875/JITI.2017.18.2.010
  7. Chung, Dae (2005), "A Study on the Star Sea Case in England and the Duty of Utmost Good Faith in a Contract of Marine Insurance", Maritime Law Review, 17(2), p.109-131.
  8. Clarke, M. and B. Soyer (2017), The Insurance Act 2015: A New Regime for Commercial and Marine Insurance Law, NY: Informa Law from Routledge.
  9. Clarke, M., Burling, J. M. and Purves, R.L (2009), The Law of Insurance Contracts(6th ed.), UK: Informa Law from Routledge.
  10. Colledge, J. J. and B. Warlow (2006), Ships of the Royal Navy: The Complete Record of all Fighting Ships of the Royal Navy(Rev. ed.), London: Chatham Publishing.
  11. Gilman, J., Merkin, R., Blanchard C. and Templeman, M (2013), Arnould's Law of Marine Insurance and Average(18th ed.), London: Sweet & Maxwell Ltd.
  12. Han, Chang-Hi (2017a), "A Study on English Revised Disclosure Duty", Journal of Law, 30(1), pp.393-431
  13. Han, Chang-Hi (2017b), "Utmost Good Faith Doctrine of the Policyholder under the English Insurance Act 2015", Journal of Law, 34(3), pp.369-395.
  14. Han, Nak-Hyun (2009), "A Comparative Study on the Duty of Utmost Good Faith of U.K. and U.S. in Marine Insurance Contract", Journal of Claim Adjustment, 2(2), pp.75-106.
  15. Hosi, Makoto (2015a), "UK Insurance Act 2015-Review of Major Revisions and Impact on Practice -", Kaizihoukennkyuukaisi, 228, pp.23-34.
  16. Hosi, Makoto (2015b), "Treatment of Unjustifiable Claims of Insurance Claims in UK Law", Songaihokennkenkyu, 77(1), pp.45-78.
  17. Jeon, Hae-Dong and Gun-Hoon Shin (2016), "A Study on the Recent Trends for Reforming the MIA 1906 and Comments on them-Focusing on the Insurance Act 2015-", The International Commerce & Law Review, 69, pp.407-426.
  18. Jeong, Hae-Seok and Yeong-Seok Cheong (2015), "Recent Development of the "Non-Disclosure" and "Breach of Warranties" Principle in MIA 1906", Hanyang Law Review, 32(1), pp.127-147
  19. Jin, Hong-Ki (2016), "Utmost Good Faith After the Formation of Contract Under English Insurance Law and its Implication to our Law", Journal of International Trade and Insurance, 17(3), pp.201-228. https://doi.org/10.22875/JITI.2016.17.3.009
  20. Jung, Chan-Hyung (2005), Lecture of Commercial Law(7th ed.), Seoul: Parkyoungsa.
  21. Kim, Jin-Woong (2007), "Overview of US Partnership and Consideration of Introduction of Partnership Taxation System", Tax Study, 7, pp.275-299.
  22. Kim, Sun-Chul and Kil-Nam Lee (2009), "A Comparative Study on the Legal Aspect of the duty of Disclosure in Korean Insurance and English Insurance Laws", International Commerce and Information Review, 11(1), pp.309-331. https://doi.org/10.15798/KAICI.11.1.200903.309
  23. Kim, Sung-Tae (2001), Lecture of Insurance Law, Seoul: Bummunsa.
  24. Kim, Seong-Wan (2015), "A Study on the Breach of Duty of Disclosure and Fraudulent Insurance Contracts", Financial Insurance Review, 26(1), pp.3-50.
  25. Koh, Jae-Jong (2008), "A Historial Study on the Utmost Good Faith of the Insurance Contract", The Journal of Korean Commercial Law Association, 27(1), pp.155-182.
  26. Kurasawa, Kouichirou (2004), Introduction to Insurance Law, Tokyo: Sinseisyuppan.
  27. Law Commission and Scottish Law Commission (2014), Insurance Contract Law: Business Disclosure; Warranties; Insurer's Remedies for Fraudulent Claims; and Late Payment Executive Summary, Edinburgh: Law Commission and Scottish Law Commission.
  28. Lee, Gi-Soo, Byung-Gyu Choi, and In-Hyun Kim (2003), Insurance Law.Maritime Law, Seoul: Parkyoungsa.
  29. Lee, Jung-Won (2016), "A Review on The Duty of Fair Presentation in The Insurance Act 2015", Maritime Law Review, 28(2), pp.37-76.
  30. Lee, Yun-Seok (2010), "A Study on Utmost Good Faith and Disclosure Duty in Insurance Contracts", Hanyang Law Review, 21(4), pp. 263-287.
  31. Lim, Soo-Min (2013), "Utmost Good Faith and Protection of Insurance Contracting Parties", Advanced Commercial Law Research, 64, pp. 261-298.
  32. Lowry, J. (2009), "Wither the Duty of Good Faith in UK Insurance Contracts", Connecticut Insurance Law Journal, 16(1), pp.97-156.
  33. Park, Yong-Sup (1999), Marine Insurance Law, Busan: Hyosung Publishing.
  34. Rose, F. D. (2007), "Informational Asymmetry and the Myth of Good Faith: Risk Basis", Lloyd's Maritime and Commercial Law Quarterly, pp.194-209.
  35. Saffarini, B. (2016), The Marine Insurance Handbook : An Exploration and In-Depth Study of Marine Insurance Law and Clauses Paperback, Bahaeddin Sffarini(ACII).
  36. Shin, Gun-Hoon (2006), "The Scope of the Continuing Duty of Utmost Good Faith in English Marine Insurance Law", The Journal of Korea Maritime Law Association, 28(2), pp.155-203.
  37. Shin, Gun-Hoon (2011a), "Main Trends for Reforming the Duty of Utmost Good Faith in English Insurance Contracts Law-Focused on the Policyholder's Pre-Contractual Duty in Insurance Contracts for Business", The International Commerce & Law Review, 49, pp.257-281.
  38. Shin, Gun-Hoon (2011b), "Main Trends for Reforming Marine Insurance Law in England- Focused on the Insurer's Post-Contractual Duty of Utmost Good Faith-", Journal of International Trade and Insurance, 12(3), pp.41-74.
  39. Soyer, B. (2003), "Continuing Duty of Utmost Good Faith in Insurance Contracts Still Alive?", Lloyd's Maritime and Commercial Law Quarterly, pp.39-45.
  40. Tamura, Jyunnosuke and Hiraide, Yosimichi (2003), Insurance Law.Maritime Law, Tokyo: Aobayasisyoinn.
  41. Thomas, D. R. (1996), The Modern Law of Marine Insurance, London: LLP.
  42. Winfield, R. (2007), British Warships of the Age of Sail 1714-1792: Design, Construction, Careers and Fates, Seaforth Publishing.
  43. Yamano, Yosirou and Yamada, Yasuhiko (2004), Modern Insurance.Maritime Law(6th ed)., Tokyo: Chuoukeizaisya.