제1장 연구의 목적과 방법 ·············································································· 1
제1절 연구의 목적 ·························································································· 1
제2절 연구의 방법 및 범위 ·········································································· 4
제2장 보험약관의 해석원칙과 보험자의 설명의무 ···································· 7
제1절 보험약관 ······························································································ 7
I. 개념 ········································································································· 7
1. 의의와 존재이유 ················································································ 7
2. 보험약관의 종류 ················································································ 8
II. 보험약관에 대한 규제 ········································································ 10
1. 규제의 필요성 ·················································································· 10
2. 규제의 종류 ······················································································ 11
3. 입법적 통제 ······················································································ 11
4. 행정적 통제 ······················································································ 14
5. 사법적 통제 ······················································································ 17
Ⅲ. 보험약관의 법적 구속력 ·································································· 17
1. 규범설 ································································································ 18
2. 의사설 ································································································ 21
3. 판례 ···································································································· 22
4. 미신고 약관의 효력 ········································································ 23
5. 보험약관의 변경과 소급적용 ························································ 23
제2절 보험약관의 해석원칙 ········································································ 25
I. 개별약정 우선원칙 ············································································· 25
1. 의의와 효력 ······················································································ 25
2. 개별약정의 존재여부 ······································································ 28
II. 신의성실의 원칙 ·················································································· 33
1. 의의 ···································································································· 33
2. 신의성실의 원칙과 관련한 약관해석 사례 ································ 36
Ⅲ. 효력유지적 축소해석(수정해석) ···················································· 38
1. 의의 ···································································································· 38
2. 수정해석과 관련한 사례 ································································ 40
Ⅳ. 객관적 해석의 원칙 ·········································································· 41
1. 의의 ···································································································· 41
2. 객관적 해석의 기준 ········································································ 43
3. 객관적 해석과 관련한 사례 ·························································· 46
Ⅴ. 작성자불이익의 원칙 ······································································ 49
1. 의의 ···································································································· 49
2. 보충적 해석원칙 ·············································································· 51
3. 작성자불이익 원칙과 관련한 사례 ·············································· 52
Ⅵ. 그 밖의 약관해석 원칙들 ································································ 52
1. 면책사유에 대한 엄격해석의 원칙 ·············································· 52
2. 유효해석의 원칙 ·············································································· 53
3. POP원칙 ····························································································· 53
4. 오표시무해의 원칙 ·········································································· 54
5. 예문해석 ···························································································· 54
제3절 외국의 보험약관 해석원칙 ······························································ 56
Ⅰ. 미국의 보험약관 해석원칙 ······························································ 56
1. 약관해석의 원칙 ·············································································· 56
2. 합리적 기대의 원칙 ········································································ 59
Ⅱ. 영국의 보험약관 해석원칙 ······························································ 61
1. 약관에 대한 규제 ············································································ 61
2. 약관 해석원칙 ·················································································· 63
Ⅲ. 독일의 보험약관 해석원칙 ······························································ 66
1. 약관에 대한 규제 ············································································ 66
2. 약관 해석원칙 ·················································································· 67
Ⅳ. 유럽연합의 보험약관 해석원칙 ······················································ 71
1. 유럽보험계약법 준칙 ······································································ 71
2. 유럽보험계약법 준칙상의 보험약관 해석원칙 ·························· 73
제4절 보험약관의 명시·교부·설명의무 ················································ 75
I. 개관 ······································································································· 75
1. 의의 ···································································································· 75
2. 관련법규 ···························································································· 75
3. 취지 ···································································································· 77
II. 설명의무 위반의 효과 ········································································ 78
1. 계약 편입 불가 ················································································ 78
2. 취소권 ································································································ 79
3. 보험업법상 손해배상책임 ······························································ 83
4. 금융소비자보호법상 손해배상책임과 위법계약 해지 ·············· 83
Ⅲ. 설명 대상 ···························································································· 85
1. 중요한 내용 ······················································································ 85
2. 중요한 내용으로 인정된 경우 ······················································ 86
3. 중요한 내용으로 인정되지 않은 경우 ········································ 89
4. 현행 판례의 문제점 ········································································ 91
Ⅳ. 설명 등이 면제되는 경우 ································································ 92
1. 보험계약자가 충분히 알고 있는 사항 ········································ 94
2. 충분히 예상할 수 있던 사항 ························································ 95
3. 법령을 반복 또는 부연하는 경우 ················································ 96
Ⅴ. 설명 등의 주체, 상대방, 방법, 시기 ············································· 98
1. 주체 ···································································································· 98
2. 상대방 ································································································ 99
3. 방법 ·································································································· 100
4. 시기 ·································································································· 104
Ⅵ. 증명책임 ···························································································· 105
Ⅶ. 설명의무 등과 고지의무의 관계 ·················································· 106
제3장 보험약관해석과 관련한 주요 사건과 쟁점의 검토 ······················ 108
제1절 자살보험금 사건의 검토 ································································ 108
I. 약관상 재해보상규정의 내용 ··························································· 108
Ⅱ. 자살보험금 사건의 쟁점 ································································ 111
1. 사실관계 ·························································································· 111
2. 자살보험금 관련 약관의 규정 ···················································· 112
3. 소송의 경과 ···················································································· 114
Ⅲ. 대상판결의 평석 ·············································································· 118
1. 분석 ·································································································· 118
2. 작성자불이익원칙의 적용여부 ···················································· 119
3. 자살면책조항이 잘못된 표시에 해당하는지 여부 ·················· 121
4. 보험단체의 이익 ············································································ 122
5. 오표시무해의 원칙과 예문해석 ·················································· 124
6. 평균적고객의 이해가능성 ···························································· 125
7. 소결 ·································································································· 126
Ⅳ. 판결의 적용범위 ·············································································· 127
1. 자살면책제한조항의 유형 ···························································· 127
2. 대상판결의 적용범위 ···································································· 131
Ⅴ. 약관의 개선방안검토 ······································································ 133
1. 잘못된 자살면책제한조항 유지시의 문제점 ···························· 133
2. 표준약관 개정 ················································································ 138
3. 기존약관의 개선방안 ···································································· 140
4. 소결 ·································································································· 140
제2절 코로나-19의 재해 해당 여부 ·························································· 142
I. 문제의 제기 ························································································· 142
Ⅱ. 감염병예방법 및 약관의 변천 ······················································ 143
1. 감염병예방법의 변천 ···································································· 143
2. 약관의 변천 ···················································································· 148
3. 보험금을 지급하지 않는 재해에 해당하는 KCD상 U00~U99에
해당하는 질병 ················································································ 152
4. 재해 처리하는 전염병의 변천 ···················································· 154
Ⅲ. 약관재해분류표의 해석 ·································································· 155
1. 2005. 2. 15. 표준약관의 해석 ····················································· 155
2. 2013. 12. 17. 표준약관의 해석 ··················································· 156
3. 2015년 이후 생명보험사 약관의 해석 ······································ 159
4. 소결 ·································································································· 161
Ⅳ. 문제점과 개선방안 ·········································································· 163
1. 문제점 ······························································································ 163
2. 개선방안 ·························································································· 168
제3절 유암종 사건의 검토 ········································································ 172
I. 문제의 제기 ························································································· 172
Ⅱ. 유암종의 암해당 여부에 대한 판례의 검토(대법원 2018. 7.
24. 선고 2017다256828 판결) ························································· 174
1. 사실관계 ·························································································· 174
2. 하급심 판결요지 ············································································ 176
3. 대법원 판결요지 ············································································ 177
4. 대상판결의 검토 ············································································ 179
Ⅲ. 암의 정의에 대한 외국의 약관 검토 ············································ 184
1. 일본 ·································································································· 184
2. 미국 ·································································································· 187
3. 영국 ·································································································· 189
4. 각국 약관의 비교와 검토 ···························································· 191
Ⅳ. 약관의 해석과 개선방안 ································································ 194
1. 보험금 지급실무상 법적 쟁점 ···················································· 194
2. 기존약관 개정의 필요성과 개정결과 ········································ 197
제4절 즉시연금 사건의 검토 ······································································ 201
I. 대상사건(금융분쟁조정위원회 2018. 9. 18. 조정결정, 조정번호
제2018-13호) ························································································ 201
1. 사실관계 ·························································································· 201
2. 대상 보험계약 약관 ······································································ 202
3. 분쟁조정위원회의 결정 ································································ 207
Ⅱ. 연금계산방법이 약관에 편입되기 위한 요건 ···························· 209
1. 금융분쟁조정위원회의 해석 ························································ 209
2. 산출방법서는 약관의 일부라는 견해 ········································ 210
3. 산출방법서가 약관에 편입되기 위해서는 별도의 요건을
갖추어야 한다는 견해 ···································································· 212
4. 산출방법서의 약관편입에 대하여 ·············································· 212
Ⅲ. 연금계산방법이 설명의무의 대상인지 여부 ······························ 214
1. 금융분쟁조정위원회의 해석 ························································ 214
2. 설명의무의 대상이 아니라고 보는 견해 ·································· 214
3. 설명의무의 대상이라고 보는 견해 ············································ 216
4. 설명의무의 이행여부에 대하여 ·················································· 216
Ⅳ. 연금계산방법 설명의무 위반의 효과 ·········································· 220
1. 금융분쟁조정위원회의 해석 ························································ 220
2. 설명의무위반의 효과에 대한 학계의 의견 ······························ 221
3. 설명의무 위반의 효과에 대하여 ················································ 222
Ⅴ. 결어 ···································································································· 223
1. 약관의 문제점과 개선방향 ·························································· 223
2. 즉시연금 사건 진행과정에서의 문제점과 개선방향 ·············· 225
3. 소결 ·································································································· 229
제5절 갑상선 전이암 사건의 검토 ···························································· 231
I. 대상사건(금융분쟁조정위원회 2019. 12. 24. 조정결정, 조정번호
제2019-17호) ························································································ 231
1. 사실관계 ·························································································· 231
2. 대상 보험계약 약관 ······································································ 232
3. 분쟁조정위원회의 결정 ································································ 236
Ⅱ. 원발부위 기준 조항의 해석에 대한 검토 ·································· 237
1. 원발부위 기준 조항의 모호성에 대한 의문 ···························· 237
2. 약관상 암의 정의와 일차성 악성신생물의 정의의 상이성 ··· 238
3. 법적 안정성 훼손 ·········································································· 240
4. 보험소비자에 대한 피해 ······························································ 241
5. 작성자 불이익 원칙의 보충성 ···················································· 241
6. 소결 ·································································································· 242
Ⅲ. 설명의무위반에 대한 검토 ···························································· 243
1. 용어의 문리적 해석에 치중한 근거 제시로 인한 분쟁조정의
신뢰성 추락 ···················································································· 243
2. 설명의무의 대상에 대한 법률 규정 ·········································· 244
3. 설명의무의 대상에 대한 학설과 판례 ······································ 245
4. 원발부위 기준조항이 설명의무 대상인지 여부에 관한 판례 246
5. 소결 ·································································································· 249
Ⅳ. 보험금 지급책임의 범위에 대한 검토 ········································ 250
1. 갑상선 전이암의 진행정도를 표시한 것에 불과하다는 판례 250
2. 갑상선 전이암을 일반암으로 보아야 한다는 판례 ················ 251
3. 대상 분쟁조정 결정에 대한 검토 ·············································· 253
Ⅴ. 보험금 지급실무상 쟁점에 대한 검토 ········································ 253
1. 지급기준과 보험금 지급실무상 법적 쟁점 ······························ 253
2. 약관의 문제점과 개정 약관에 대한 검토 ································ 259
3. 소결 ·································································································· 261
제4장 보험약관상 설명의무제도의 개선 방안 ·········································· 263
제1절 보험약관과 설명의무제도의 문제점과 개선방안 ······················ 263
I. 암보험 약관 및 설명의무 이행에 있어서의 문제점 ··················· 263
1. KCD 적용 보험약관에서 개정 전·후 지급기준의 차이로 인한
문제점과 개선방안 ·········································································· 264
2. KCD 적용 보험약관 개정에 대한 설명의무 이행에 있어서
문제점과 개선방안 ·········································································· 266
3. 갑상선 전이암 사건의 개정 약관에 대한 검토 ······················· 267
4. 갑상선 전이암의 처리에 대한 설명의무 이행의 개선 방안 · 269
Ⅱ. 자살보험금 약관의 문제점과 개선방안 ········································ 270
Ⅲ. 약관 재해분류표의 문제점과 개선방안 ······································ 271
1. 금융감독원 약관개정안의 문제점 ·············································· 272
2. 개선방안 ·························································································· 273
Ⅳ. 보험약관 개선 현황에 대한 검토 ·················································· 275
1. 진행 현황 ······················································································ 275
2. 약관이해도 평가제도 개선 ························································ 277
3. 상품 개발 변경시 법률·의료리스크 검증 강화 ··················· 278
4. 모호한 약관용어·표현 개선 ···················································· 279
5. 개선 현황에 대한 검토 ······························································ 280
제2절 약관 개정안 및 입법론 제안 ························································ 283
Ⅰ. 설명의무 이행의 환경변화에 대응한 약관 개정안 및 금융소비자
보호법 개정 제안 ·············································································· 283
1. 제안 이유 ························································································ 283
2. 약관 개정안 및 금융소비자보호법 개정 제안 ························ 285
Ⅱ. 보험약관의 해석원칙에 관한 상법 개정 제안 ···························· 287
1. 제안 이유 ························································································ 287
2. 상법 개정 제안 ·············································································· 288
Ⅲ. 불합리한 약관의 소급적 보완을 위한 보험업법 개정 제안 ···· 290
1. 제안 이유 ························································································ 290
2. 보험업법 개정 제안 ······································································ 294
제5장 결론 ······································································································ 297
참고문헌 ··········································································································· 305
ABSTRACT ········································································································ 324