• 무역상무연구
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• 제55권
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• pp.209-240
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• 2012

Since the age of Lord Mansfield, who laid the foundation of the modern English insurance contract law in the second part of the 18th century, English insurance law has developed a unique rule of warranty. Lord Mansfield adopted very different approach and afforded such a strict legal character to insurance warranty, because the promise, given by the insured, played an important role for the insurer to assess the scope of the risk insured at that time. It is still important that the insured keep his promises strictly to the insurer under the insurance contract, but legal environments have changed dramatically since the times of Lord Mansfield. English Law Commission proposed some proposals for reforming the warranty regime to reflect the changes of legal environment in CP 2007. This article is, therefore, designed to examine the proposals and consider their legal and practical implications. The proposals of Law Commission is summarized as following. First, in CP 2007, Law Commission made two principal proposals for reform of the law on warranty. The first is that the insurer should not be entitled to rely on a breach of warranty unless the insured has been provided with a witten statement of what they have undertaken under warranty. The second is that the insurer should not be entitled to reject a claim on the ground that the insured has breached a warranty unless there was a causal connection between the breach and the loss. Secondly, for consumer insurance, the rule requiring a causal connection would be mandatory, whereas for business insurance, it would be possible for the parties to agree on the effect a breach of warranty should have, provided they use clear language to express their intentions. Thirdly, where the insured contracted on the insurer's written standard terms of business, some statutory controls would be afforded to the contract to ensure that the cover was not substantially different from what the insured reasonably expected. Finally, Law Commission propose that a breach of warranty give the insurer the right to terminate the contract, rather than automatically discharging it from liability, but (unless otherwise agreed) only if the breach has sufficiently serious consequences to justify termination under the general law of contract. Having evaluated the proposals of the Law Commission and considered their legal and practical implications, it is quite clear that the proposed rule interfere with freedom of contract and create legal uncertainty. But change can not made without any victims, so Law Commission's attempt to change severe and injust aspects of the warranty regime would be very welcomed and respected.

• 무역상무연구
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• 제61권
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• pp.113-137
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• 2014

For a contract of insurance to be valid, the insured needs to have an insurable interest. This means that someone taking out insurance must stand to gain a benefit from the preservation of the subject matter of the insurance or to suffer a disadvantage should it be lost. Although the principle is simple, the detail is difficult. English Law Commission proposed some changes to provide certainty on the rule of insurable interest in LCCP 201. This article is, therefore, designed to examine the proposals for reforming trends in English insurance contract law. The proposals on Law Commission in summarized as following. First, LC proposed to retain the requirement for insurable interest because it was thought to fulfil four useful functions. Secondly, LC proposes to repeal the Marine Insurance Act 1788 and the Marine Insurance (Gambling Policies) Act 1909 to confirm that the requirement of insurable interest applies to all forms of insurance. Thirdly, LC proposes to retain the provisions on insurable interest in the Marine Insurance Act 1906. Finally, LC proposes to define insurable interest and thinks that full definition of insurable interest should remain flexible.

• 무역상무연구
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• 제67권
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• pp.119-142
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• 2015

Many insurers have traditionally incorporated "fraud clauses" into insurance policies, setting out the consequences of making a fraudulent claim. Even in the absence of an express terms, English courts provide insurers with a remedy for a fraudulent claim. However, the law in this area is complex, convoluted and confused. English Law Commission think that the law in this area needs to be reformed for three reasons; (1) the disjunctive between the common law rule and section 17 generates unnecessary disputes and litigation, (2) increasingly, UK commercial law must be justified to an international insurance society, and (3) the rules on fraudulent claims are functioned as a deterrent if they are clear and well-understood. In order for these purposes, English Law Commission recommends a statutory regime to the effect that, when an insured commits fraud in relation to a claim, the insurer should (1) have no liability to pay the fraudulent claim and be able to recover any sums already paid in respect to the claim, and (2) have the option to treat the contract as having been terminated with from the time of the fraudulent act and, if chosen the option, be entitled to refuse all claims arising after the fraud, but (3) remain liable for legitimate losses before the fraudulent act. LC is not recommending a complete restatement of the law on insurance fraud generally. For example, LC does not seek to define fraud, instead, recommends the introduction of targeted provisions to confirm the remedies available to an insurer who discovers a fraud by a policyholder.

• 무역상무연구
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• 제53권
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• pp.207-229
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• 2012

In IP 7 and LCCP 201, Law Commission considers the insured's duty of good faith after the formation of the contract. This article intends to review and analyse the legal implications of proposals in IP 7 and LCCP 201. The results of analysis are following. First, Law Commission propose to end the remedy of avoidance under MIA 1906 section 17, because avoidance of past claims is unprincipled, impractical and unnecessarily harsh. Secondly, LC proposes that an insured who makes a fraudulent claim should forfeit the whole claim which the fraud relates, but that the fraud should not invalidate previous and legitimate claims. Thirdly, LC proposes to introduce a statutory right for the insurer to claim damages for the reasonable, foreseeable costs of investigate a fraudulent claim in specific circumstances and that damages would be limited to those cases where the insurer can show an actual, net loss. Finally, LC provisionally propose that an express fraud clause should be upheld in business insurance, whereas in consumer insurance, any term which purports to give the insurer greater rights in relation to fraudulent claims that those set out in statute would be of no effect.

• 한국항해항만학회지
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• 제37권6호
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• pp.617-625
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• 2013

영국 해사법상 S&P 브로커"로 널리 알려진 선박매매 브로커는 선박매매를 원하는 의뢰인인 본인을 대신하여 협상을 행사하는 독립적 계약자이다. 또한 S&P 브로커는 선박매매시 본인을 대리하는 대리인으로 그 법적지위를 갖는다. S&P 브로커들은 로이드 선급, 미국 선급 및 한국 선급 등에서 선박의 중요한 명세 자료와 정보들을 수집하여 선박매매를 원하는 매도인과 매수인에게 상호 이익이 되도록 조력한다. S&P 브로커의 책임은 선박매매계약서의 합의 내용에 반하지 않고 선량한 관리자로서 주의의무를 다하며, 의뢰인인 본인의 요청에 전문적으로 업무수행 함을 의미한다. 그러나 선박매매계약에 의하여 당사자와의 관계 범위, 주된 조건, 계약 위반 및 면책내용에 있어서 분쟁이 발생할 경우, S&P 브로커에게도 책임문제가 발생한다. 이 S&P 브로커의 책임은 직접계약당사자의 원칙에 의하거나 제3자의 권리에 관한 계약법에 근거한다. 그러므로 S&P 브로커가 의무를 불이행한 경우 또는 계약 내용에 반하거나 과실에 기인하여 불법행위가 야기된 경우, 분쟁과 소송이 발생하게 된다. 이에 이 논문에서는 S&P 브로커의 특징 중 대리인으로서의 법적 책임, 수수료 문제, 이익의 충돌과 비밀 수수료, 등에 대하여 영국 해사법과 영국 판례를 중심으로 검토하여 논함을 이 연구의 목적으로 삼고자 한다.

• 한국중재학회지:중재연구
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• 제22권3호
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• pp.141-163
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• 2012

In Korea, although nearly all maritime arbitration cases are dealt with by the Korean Commercial Arbitration Board (KCAB), the total number of cases that are referred to the KCAB is relatively small compared with the total number of maritime cases that occur in Korea. There may be reasons why maritime arbitration is not utilized more in Korea. However, of the above reasons, the superseding one may be that there is still a lack of confidence in the credibility and foreseeability of maritime arbitration in Korea. To expand the use of maritime arbitration in Korea, it is essential that the base surrounding maritime arbitration be expanded. In addition, it is also necessary that specialists receivetraining in maritime law. In this context, it is strongly recommended that maritime and admiralty law be taught in law schools and be included as a regular subject on the Korean bar exam. Additionally, to promote maritime arbitration, a rule should be introduced allowing for shortened arbitration proceedings in Korea. Although Chapter 8 of the KCAB Arbitration Rules provide for "Expedited Procedure," this process alone is not because the rules for Expedited Procedure generally apply in arbitration cases where both parties have agreed in a separate agreement to follow the procedures provided or in any domestic arbitration valued atless than 100,000,000 Korean won. Therefore, the KCAB Arbitration Rules for Expedited Procedure must be reformed to encompass international arbitrations. Additionally, experts who are experienced in the maritime sector should be elected as arbitrators. Given the factthat a fair number of arbitration cases can be characterized as international, it is important that businesspersons who are very fluent in English be appointed as arbitrators in order to increase the reliability of maritime arbitration in Korea and save costs. Meanwhile, because lawyers and scholars constitute a considerable portion of KCAB arbitrators, commercial persons from relevant industries should be enlisted as arbitrators. Even though there are arguments for the establishment of an independent maritime arbitration board in Korea, establishment of a separate maritime arbitration board will not directly guarantee the prosperity of maritime arbitration in Korea. Instead of instituting a new maritime arbitration board, it is better that a reorganized KCAB modify existing arbitration proceedings to make them faster and more economical if maritime arbitration is to prosper. In this regard, ad-hoc arbitration would be an option for speedy and thrifty maritime arbitration. Finally, to gain the confidence of domestic and foreign parties, we cannot ignore the importance of advertising the specialties and qualifications of the KCAB and its personnel among business entities.