현행 신중한 보험자(prudent insurer) 기준에 대한 비판적 재고 -영국 보험법의 해석을 중심으로- = A Critical Analysis on the Current Prudent Insurer Test

다국어 초록 (Multilingual Abstract)

The question of What should be a criterion for determining the materiality of information? is a crucial element of deciding the range of the duty of disclosure in insurance contract law. Although s. 18(2) of the Marine Insurance Act 1906 clearly refer to `a prudent insurer test`, it is worth analyzing the other tests because this has met with a lot of criticism and the requirement for reform of the current test is increasing. It is apparent that the test of prudent insurer imposes too heavy a burden on the insured. According to this test, it may not be sufficient for the insured to disclose every fact that the actual insurer would wish to know about before accepting the risk. In other words, clairvoyant powers to discover what a prudent insurer would regard as material are required to the insured. Furthermore, the insurer can be more protected by the practice of accepting expert evidence. In 1994, the House of Lords required the element of inducement based on the actual insurer test in the duty of disclosure. However, it is submitted that the element of inducement was intentionally accepted by the House of Lords in order to alleviate a lot of criticism caused by the anti-decisive influence test in relation to the degree of influence of undisclosed facts. In addition, inducement and materiality are wholly separate and distinct concepts. In other words, materiality is a requirement which is not dependent on the element of inducement. Under this circumstance, the prudent insured test can be provided as a substitute. The most important role of the prudent insured test is to make it possible to reduce the scope of the duty of disclosure. Also this test seems to offer a more effective way to solve the question of proof. It is because under this test it seems to be sufficient for an insured to undertake his duty with reasonable care and skill, and no extra skill to predict what a prudent insurer would think as material is imposed upon the insured. Therefore, the insured can be properly protected and it is thought that this test can correspond to the principle of utmost good faith in insurance contract law.