보험자가 약관의 위험증가조항을 설명하지 아니한 경우에도 상법 제652조 위반을 이유로 계약을 해지할 수 있는지 여부 - 대법원 2025. 8. 14. 선고 2024다289680 판결 -

초록

Disputes over the insured’s duty to notify alteration or increase in risk have proliferated in recent years, and lower-court decisions have multiplied accordingly. In 2024Da289680 (Aug. 14, 2025), the Supreme Court addressed that duty head-on. The policyholder (plaintiff) procured coverage on the life of his son, representing that the insured did not drive. After inception, the insured opened a delivery restaurant and personally operated a motorcycle- a material increase of risk triggering a duty to notify alteration or increase of risk under Articles 652 and 653 of the Commercial Act as well as the policy terms. No notice was given. The insured later died in a collision while riding. The insurer rescinded and denied the claim for breach of the duty to notify alteration or increase of risk. The policyholder countered that the insurer had failed to discharge its duty to explain regarding the “notice of alteration or increase of risk” clause in the standard terms, so that clause never became part of the contract. The defendant insurer contended that, while the duty to notify alteration or increase in risk appears in the standard terms, it also exists independently under the Commercial Act. Accordingly, even if the insurer failed to adequately explain the relevant clause, rescission is available under Article 652 of the Commercial Act. The Supreme Court accepted the insurer’s position and reversed and remanded. This holding is not unprecedented. Yet in practice, numerous insurance disputes have ended with benefit payments after a thicket of legal issues ultimately ran aground on allegations that the insurer breached its duty to explain; that duty was fast becoming the insurer’s grave, and critiques mounted. While the insurer’s duty to explain is regulated by the Act on Regulation of Standardized Contracts, Insurance Business Act, Commercial Act and Act on the Protection of Financial Consumers, the dispositive point is that standard terms are contractual in nature-i.e., they are merely juridical acts. By contrast, while a duty to notify alteration or increase in risk may be expressed in the policy, Articles 652 and 653 of the Commercial Act impose a legal duty on the policyholder or insured. The decision is therefore meaningful as a reminder of a straightforward proposition: even where the insurer failed to explain the relevant standard terms, the policyholder’s statutory duty may be recognized and rescission grounded in the Commercial Act. Using this case note as a springboard, the Article canvasses the major revisions to Japan’s regime governing notification of alteration or increase in risks - the template for Korea’s Commercial Act provisions - implemented with the 2008 Insurance Act. The comparative account aims to guide domestic doctrine and to underwrite future legislative reform proposals.

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