고의면책과 관련한 보험사례

초록

The issue in this case is the definition of the concept of willful intention in the indemnification clause in the insurance contract. That is, whether or not there was an intention in the act of the insured B, dropping his friend A from his car and injuring him. The Appellate court said that it was intentional, but the Supreme court denied it. On an asphalt pavement, if a person is on the bonnet of a car and the vehicle is braked abruptly, the person may fall to the floor. The two courts have in common that this is sufficiently foreseeable. What is intentional? What should be the judicial order under the liberal and democratic Constitution? How does state power attempt to intervene and hold individuals accountable? The issue of that conflict is indeed a philosophical topic. Imposing liability for intentional damages is for fair and reasonable share of damages. The insurance law uses the concept of civil law as to what is intentional. The insurance law strives to prevent moral risks caused by man-made accidents. Therefore, it is only emphasized that the insured accident caused intentionally is the reason for the indemnification of the insurer. It would be difficult to be intentional if there is no volitional element to some extent. The position of the court is that if there is an awareness of the possibility of the occurrence of a crime and there is an inner intention to tolerate the risk of a crime, there is intentionality. It is indeed problematic to say that there is no intention, even if it is an act of recognizing the risk and appears to have been indifferent or accepted. In addition, the judgment of the Supreme Court in this case has several disadvantages that do not make sense. It is not good that the judgment of the civil law and that of the criminal law differ on whether there is intentional or not. If so, legal system would become inconsistent. In this respect, I support the Court of Appeal rather than the Supreme Court.

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