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1

영국 해상보험법의 주요 개혁동향 - 보험자의 계약체결 후 최대선의의무를 중심으로-

신건훈

한국무역보험학회 무역보험연구 제12권 제3호 2011.09 pp.41-74

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영국 법률위원회(Law Commission)는 현행 영국 보험법 상 보험자의 보험금지급의무 및 선의의무에 관한 법원칙이 보험자에 지나치게 유리하게 편중되어 있다고 판단한다. 법률위원회는 관련 보험법원칙 상 비형평성 및 불공정성을 제거함으로써 영국 보험법 및 보험업계에 대한 신뢰를 제고하려는 노력의 일환으로 최근 관련 법률의 개혁안에 관한 쟁점보고서를 발표하였다. 따라서 본고는 기존의 문헌 및 법률위원회의 개혁권고안을 중심으로 관련 보험법원칙의 문제점 및 주요 비판내용을 검토한 후, 개혁권고안의 내용, 의미 및 개혁의 기대효과를 검토하는데 그 목적을 두고 있다.
It is well-established under English insurance law that insurance contracts are based on mutual utmost good faith. Although most cases on the duty of good faith are concerned with the insured's duties rather than the insurer's, there are tentative suggestions in the recent case law that insurers should make inquiries, not act arbitrarily and not take into account extraneous circumstances in relation to claims. The problem with the duty of good faith in insurance contracts is that only one remedy is available for breach, avoidance. The remedy, avoidance, is a one-sided remedy, of far more use to the insurer than to the insured, because the insured is not entitled to damages for any further loss suffered through the delay or refusal of an insurance claim. English Law Commission makes four criticisms of the current law, that is, the law lacks principles, appears unfair, appears to reward inefficient and dishonest insurers, and leads to injustice. The Law Commission has reached the conclusion that the law in England is in need of reform. First, the Law Commission thinks that the insurer's primary obligation in insurance contracts, is to pay valid claims rather than to hold the insured harmless. Therefore, the insurer fails in this primary obligation, then under general contract principles, the insurer should be liable for any foreseeable losses. The test is objective. If the insurer refused a claim later held to be valid, the insurer would be liable, even if it had reasonable grounds for its original refusal. Secondly, the Law Commission proposed that where an insurer has acted in bad faith in refusing a claim or delaying payment, the insured should have the right to damages for foreseeable losses caused by the insurer's breach. The Law Commission argued that the duty of good faith should be non-excludable, in other words, a contract term could not exclude the duty or limit liability for its breach.

7,600원

2

영국 보험법의 개혁동향에 관한 연구 - 해상보험을 포함한 기업보험에 적용되는 담보법원칙을 중심으로 -

신건훈, 이병문

한국무역보험학회 무역보험연구 제15권 제3호 2014.09 pp.217-243

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영국 법률위원회는 영국 보험법의 개정을 위하여 2007년에 1차 검토보고서를 발표하였고, 이에 대한 각계의 반응을 고려하여 2012년에 2차 검토보고서를 발표하였다. 영국법률위원회는 이 보고서에서 각계의비판을 고려하여 과감한 개혁안을 제시하였다. 이 연구는 기업보험에 적용 되는 담보법원칙과 관련하여영국법률위원회가 제시하고 있는 개혁안의 내용, 실무적·법률적의미 및 문제점을 분석함으로써, 향후영국보험법의 개혁동향을 검토하는데 그 목적을 두고 있다.
English insurance lawhas developed a unique rule ofwarranty and afforded such a strict legal character to insurance warranty. Recently, English Law Commission proposed some proposals, adopted to business insurance, for reforming the warranty regime in CP 204. The proposals of LawCommission are summarized as following. First, LC proposes that the basis of the contract should be of no effect. Secondly, LC proposes to change the law to the effect that if a warranty is not complied with, the insurer’s liability is suspended for the duration of the breach. Thirdly, where a termis included to reduce the risk of a particular type of loss, then in the event of a breach of the term, the insurer’s liability should be suspended only in respect of that type of loss. Fourthly, the parties would be entitled to specify that a breach of warranty has different consequences.Where the insurerwish to retain the right to reject claims for breach which has already been remedied, this would need to be spelled out in clear terms, and specifically brought to the attention of the other party before the contract was formed. Finally, LC proposes that the rules outlined above should apply to express warranties in marine insurance, the implied marine warranties in MIA 1906 should be retained.

6,600원

3

영국계 P&I 클럽의 설립배경에 관한 사적 고찰

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.34 2007 pp.77-108

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

The traditional name given to the insurance of third party liabilities and certain contractual liabilities which arise in connection with the operation of ships is protection and indemnity(P & I) insurance. P & I insurance is very different from traditional hull and machinery insurance in that shipowners' hull and machinery insurance is designed primarily to protect the assured against losses to his vessel, whereas P & I insurance seeks to indemnify an shipowner in respect of the discharge of legal liabilities he has incurred in operating his own vessels. This study is to examine the background of establishment of British P & I clubs md, therefore, the identity of P & I insurance. The present British P & I clubs are the remote descendants of the many small and local hull mutual insurance clubs that were formed by British shipowners in the end of 18th century. At that time, British shipowners were dissatified with the state of marine insurance market and, therefore, established clubs together in mutual hull insurance clubs. After the removal of the company monopoly in 1824, greater competition had a good effect on the rates, terms of cover and service offered by the commercial marine insurance market and by Lloyd's underwriters, and the hull clubs became less necessary and went into decline. The burden of British shipowners on liabilities to third parties was steadily increased after the middle of the 19th century, but the amount insured under hull policy was limited in the insured value of the ship. Eventually, the first protection club, that is, the Shipowners' Mutual Protection Society was formed in 1855. It was designed to like past mutual hull clubs, but to cover liabilities for loss of life and personal injury and also the collision risks excluded from the current marine policies, particularly the excess above the limits in hull policies. In 1870, the risks of liability for loss of or damage to cargo carried on board the insured ship was first awarded by the British shipowners. After 1874, many protection clubs formed indemnity club to cover the risk of liability for loss or damage to cargo. As mentioned above, British P & I clubs have been steadily changed according to the response of shipowners under the rapidly changing law of British shipowners' liability, and so on in the future.

원문보기
4

영국 2015년 보험법 상 담보(워런티)에 관한 연구

신건훈, 이병문

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.73 2017 pp.65-90

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At the time of Lord Mansfield, warranty, that is, the promise given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed since the age of Lord Mansfield. English and Scottish Commissions proposed very dramatic reform of law in the field of warranty law to reflect the changes of legal environment through the Insurance Act 2016. This article intends to consider the legal implications through the comparative analysis between the new regime of warranty in the Insurance Act 2015 and MIA 1906. The major changes in the Insurance Act 2015 are summarized as following. First, Basis of the contract clauses in non-consumer insurance contracts should be of no effect and representations should not be capable of being converted into warranties by means of a policy term or statement on the proposal form. This requirement should not be capable of being avoided by the use of a contract term and the arrangement of contracting out by parties should be of no effect. Secondly, The existing remedy for breach of warranty, that is, automatic discharge of the insurer's liability, should be removed. Instead, the insurer's libility should be suspended from the point of breach of warranty and reattach if and when a breach of warranty has been remedies. Thirdly, A breach of warranty should genally be regarded as remedied where the insured ceases to be in breach of it. In the other hand, for time-specific warranties which apply at or by an ascertainable time, a breach should be regarded as remedies, if the risk to which the warranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a term of an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that term should only give the remedy in relation to loss of that particular kind of loss, or at a particular location/time. Finally, whether a term of an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based on whether compliance with that ther would tend to reduce the risk of the occurrence of that category of loss.

원문보기
5

영국 보험법 상 보험자의 보험금지급의무와 관련한 주요 쟁점 - 2015년 보험법 상 개정내용을 중심으로 -

신건훈, 이병문

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.76 2017 pp.125-145

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

Where an insurer has unreasonably refused to pay a claim or paid it after unreasonably delay, the existing law in England does not provide a remedy for the insured. Accordingly, the insured is not entitled to damages for any loss suffered as a result of the insurer's unreasonable delay. This legal position differs from the law in Scotland and most major common law jurisdictions. LC thought that the legal position in England is anomalous and out of step with general contractual principles. LC considered that a policyholder should have a remedy where an insurer has acted unreasonably in delaying or refusing payment of claim, and, therefore, recommended a statutory implied term in every insurance that the insurer will pay sums due within a reasonable time and breach of that term should give rise to contractual remedies, including damages. More detailed recommendations of LC are as followings. First, it should be an implied term of every insurance contract that, where an insured makes a claim under the contract, the insurer must pay sums due within a reasonable time. Secondly, a reasonable time should always include a reasonable time for investigating and assessing a claim. Although a reasonable time will depend on all the relevant circumstances, for example, the following things may need to be taken into account, that is, (1) the type of insurance, (2) the size and complexity of the claim, (3) compliance with any relevant statutory rules or guidance, and (4) factors outside the insurer's control. Thirdly, if the insurer can show that it had reasonable grounds for disputing the claim(whether as to pay or not, or the amount payable), the insurer does not breach the obligation to pay within a reasonable time merely by failing to pay the claim while the dispute is continuing. In those circumstances, the conduct of the insurer in handling the dispute may be a relevant factor in deciding whether the obligation was breached and, if so, when. Fourthly, Normal contractual remedies for breach of contract should be available for breach of the implied term to pay sums due within a reasonable time. Finally, In non-consumer insurance contracts, the insurer should be permitted to exclude or limit its liability for breach of the obligation to pay sums due within a reasonable time, unless such breach was deliberate or reckless, and such an insurer's right to contract out will be subject to satisfying the transparency requirements.

원문보기
6

영국해상보험법의 최근 개정동향 및 시사점 - 2015년 영국 Insurance Act를 중심으로 -

전해동, 신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.69 2016 pp.407-426

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

The Marine Insurance Act 1906 (MIA 1906) has been a successful piece of legislation, having rarely been amended and having established, or served as an influence in the development of, the basis of marine insurance legislation in several countries. However, it has been recognised that some parts of the MIA 1906 have begun to show their antiquated nature, especially where established principles which were once thought to reflect undoubted propositions of law are now being openly criticised. Since 2006, the Law Commission and Scottish Law Commission (the 'Law Commissions') have been engaged in a major review of insurance contract law, finally leading to the Insurance Act 2015. The Insurance Act 2015 received Royal Assent on 12 February 2015, and was based primarily on the joint recommendations of the Law Commissions. The 2015 Act made substantial changes to several main areas of marine insurance law & practice: (i) the replacement of the pre-contractual duty of disclosure with a duty to make a "fair presentation of the risk"; (ii) the abolition of the "insurance warranty" under the Marine Insurance Act 1906, s.33, and provision of a new default remedy of suspension of liability until the breach is cured; (iii) partial codification of the fraudulent claims rule in insurance contract law, etc. The Act did not provide for any new statutory duty for insurers to investigate or pay claims in a timely fashion, although this may be revisited in the next Parliament. Moreover, the Law Commissions have reopened their consideration of the doctrine of insurable interest. The 2015Actmay not then signal the end of the legislative programme in this area.

원문보기
7

2015년 영국 보험법 상 공정표시의무에 관한 연구

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.72 2016 pp.57-80

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

Since 2006, the Law Commission and Scottish Law Commission have been engaged in a major review of insurance contract law, finally leading to the legislation of Insurance Act 2015. According to the enforcement of the Insurance Act 2015 on 12 August 2016, ss 18~20 of the Marine Insurance Act 1906(MIA 1906) were repealed and substituted by the new concept of fair presentation. This article intends to analyze the legal implications through the comparative research between the duty of fair presentation in Insurance Act 2015 and ss 18~20 of MIA 1906. The major changes in Insurance Act 2015 are designed to (1) encourage active engagement by the insurer rather than passive underwriting, asking questions of the insured if the desired information is not provided at the stage of proposal; (2) encourage policyholders to structure and signpost their presentation in an clear and accessible way, and prevent data dumps; (3) give guidance as to how the insured should prepare a fair presentation, by undertaking a reasonable search of available information and giving examples of what circumstances might be material; (4) clarify whose knowledge in the insured's organization is attributed to the insured for the purposes of disclosure; (5) clarify the exceptions to the duty of disclosure, including circumstances "which are known or presumed to be known to the insurer"; and (6) replace the remedy of avoidance in all circumstances with more proportionate remedies. This is a default regime, which may be altered by agreement between the parties.

원문보기
8

한-EU 해상운송보안 제도 대응전략 비교연구

김시현, 신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.68 2015 pp.23-42

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

According to the increasing attention to safety and security in maritime shipping, there are diverse security systems in international logistics activities. Although prior studies on maritime transport and port security reviewed security policy and practices in order to provide useful insights for strategic agenda, a few focused on attitude to respond it. Moreover, there are no prior study on a comparative study between continents. To tackle this, this paper compared confrontation attitude to maritime transport and port security between South Korea and European Union. Results identified that maritime shipping security incorporates container cargo security management, logistics security management, logistics security certificate system, and environmental impacts management caused by maritime shipping. Further, the comparison between two countries suggests that South Korea need to take more positive attitude to respond, such as investment in equipment and technologies for maritime shipping security, construction of comprehensive management system, political supports for logistics security, and training and education for safety and security. The results provide useful insights for strategic review of security systems in South Korea, and to help strategic agenda for future improvement.

원문보기
9

영국 보험법의 개혁동향에 관한 연구 - 사기적인 보험금청구에 대한 구제수단을 중심으로 -

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.67 2015 pp.119-142

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

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.

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10

DCFR 및 한국법상 프랜차이즈계약 가맹업자의 의무에 관한 비교연구

이병문, 신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.65 2015 pp.21-49

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

This study primarily concerns the various franchisor's duties provided under the Draft Common Frame of Reference (here-in-after DCFR) in comparison with those under Korean law. It particularly focuses on the followings. First, it scrutinizes the rules on the scope of application in a comparative way, focusing on the following questions; what is the definition of a franchise contract and what are the essential elements of such contract. Second, it investigates in a comparative way the provisons as to the franchisor's contractual duties as follows; 1) a duty to collaborate actively and loyally and coordinate their respective efforts, 2) a duty to provide the franchisee with adequate and timely information before the contract is concluded, 3) a duty to grant the franchisee a right to use the intellectual property rights, 4) a duty to provide the franchisee with the know-how, 5) a duty to render the franchisee with assistance, 6) a duty to ensure the products ordered by the franchisee are supplied, 7) a duty to provide information during the performance, 8) a duty to warn the franchisee decreased supply capacity, 9) a duty to make reasonable efforts to promote and maintain the reputation of the franchise network. Its emphasis is particularly put on the rationals, the contents and the nature of such duties. Third, this study provides legal and practical advice to the contracting parties when they intend to insert either the DCFR or Korean law in their contract as a governing law.

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11

영국 보험법 상 피보험이익에 관한 법원칙의 개혁동향 - 손해보험을 중심으로 -

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.61 2014 pp.113-137

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

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.

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12

2009년 협회적하약관상 보험기간에 관한 연구

신건훈, 이병문

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.59 2013 pp.81-112

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

This article intends to examine main features of revision in relation to the duration of cover in the Institute Cargo Clauses 2009 and the results of analysis are as followings. First, the cover, which had been "warehouse to warehouse", has been extended to what may be called "shelf to unloading". Thus the insurance attaches when the goods are first moved within the warehouse or place of storage at the named place for the purpose of immediate loading for the commencement of transit. Secondly, the new termination Clause 8.1.3 requires an election by the assured, or their employees, to use a vehicle or container, for storage other than in the ordinary course of transit. Thirdly, Clause 10.1, which deals with the assured's voluntary change of voyage, was amended to solve the problem that the words "held covered" could be misunderstood by an assured without specialist knowledge of English marine insurance law to be a guarantee of cover, even where cover would not be commercially available. Finally, Clause 10.2 is designed to solve the so-called "phantom ship problem", arising from the harsh decision in The Prestrioka. The new Clause 10.2 provides protection for an innocent assured in the situation of a phantom ship.

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13

2009년 협회적하약관의 면책조항 상 주요 개정내용에 관한 연구

신건훈, 이병문

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.57 2013 pp.137-169

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

This article intends to analyse some features in Exclusion Clauses of the Institute Cargo Clauses 2009 and the results of analysis are following. First, the insufficiency of packing or preparation exclusion under the revised Clause 4.3 is now more limited than before and the Clause suggest the test of sufficiency or suitability "to withstand the ordinary incidents of the insured transit". Secondly, the word "proximately" was deleted under the revised Clause 4.5 for the insurer to be identified more easily as a cause, but it remains to be seen whether that re-drafting will be successful. Thirdly, The exclusion under the revised Clause 4.6 does not apply unless the insurer can prove that, at the time the subject-matter insured is loaded on board the vessel, the assured was aware, or in the ordinary course of business should have been aware, that the relevant insolvency or financial default could prvent the normal prosecution of the voyage, and to a person who purchase the goods from the assured in good faith under a binding contract. Fourthly, the exclusion in respect of unseaworthiness of vessel under Clause 5.1.1 applies only where the assured is privy to the unseaworthiness, whereas the exclusion in respect of unfitness of container or conveyance under Clause 5.1.2 includes the privity of the employee. Finally, Clause 7 establishes the definition of terrorism, and adds ideological and religious motive to political motive.

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14

영국 보험계약법의 주요 개혁동향 - 보험금청구와 관련한 피보험자의 계약체결 후 선의의무를 중심으로 -

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.53 2012 pp.207-229

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

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.

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15

영국 보험계약법 상 담보법원칙의 개혁동향에 관한 연구

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.55 2012 pp.209-240

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

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.

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16

교량구간의 결빙 예측 및 감지 시스템

신건훈, 송영준, 유영갑

[Kisti 연계] 한국콘텐츠학회 한국콘텐츠학회논문지 Vol.11 No.11 2011 pp.42-48

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

본 논문에서는 교량구간의 도로 결빙예측 및 감지를 위한 시스템 설계를 제안하였다. 센서 노드의 하드웨어는 마이크로프로세서, 온도 센서, 습도 센서, 그리고 Zigbee 무선 통신으로 구성되었다. 관제센터의 소프트웨어는 관제센터에 수집된 교량 온도, 습도 데이터로 관찰하기 위하여 구현되었다. 교량 노면의 결빙은 노면의 온도가 이슬점 온도 이하이면서 영하일 때 발생한다. 제안된 시스템을 이용하여 도로면의 온도 및 습도 분포를 측정하였다. 측정 데이터는 도로 결빙이 발생하는 시점을 예측하기 위하여 사용되었다. 실제 결빙되는 것보다 최소 30분 이전에 결빙시점을 예측하여 경고가 이루어진다. 이 결과로 결빙으로 인한 교통사고를 방지하기 위하여 사용 할 수 있다.
This paper presents a bridge road surface frost prediction and monitoring system. The node sensing hardware comprises microprocessor, temperature sensors, humidity sensors and Zigbee wireless communication. A software interface is implemented the control center to monitor and acquire the temperature and humidity data of bridge road surface. A bridge road surface frost occurs when the bridge deck temperature drops below the dew point and the freezing point. Measurement data was used for prediction of road surface frost occurrences. The actual alert is performed at least 30 minutes in advance the road surface frost. The road surface frost occurrences data are sent to nearby drivers for traffic accidents prevention purposes.

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17

영국 보험계약법 상 최대선의의무에 관한 주요 개혁동향

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.49 2011 pp.257-281

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

The duty of utmost good faith is found in sections 17-20 of MIA 1906. Critics of the current legal regime on the pre-contractual duty from the viewpoint of the assured, have been concentrated on two points in particular. First, the scope of the duty is so wide that it imposes too high burden on the assured. The second criticism is directed at the remedy, prescribed by the MIA 1906, s.17, against breach of the duty. This article intends to analyse the legal implications of proposals in CP 2007 for reforming pre-contractual duty of utmost good faith of business assured in English insurance contracts law and the problems of proposals. The Law Commissions are proposing four fundamental changes to meet the long-standing criticism and the results of analysis are as following. First, the Law Commissions are proposing a change in the test of constructive knowledge in relation to the duty of disclosure so that a business assured will be obliged to disclose facts which he knows or a reasonable ought to know in the circumstances. Secondly, deviating from the current legal position, the Law Commissions are proposing that if a business assured has made a misrepresentation, but the assured honestly and reasonably believe what it said to be true, the insurer should not have any remedy due to the misrepresentation. The proposal is designed to protect the reasonable expectations of business assured at the pre-contractual stage. Thirdly, the Law Commissions are proposing to change the test for materiality by replacing the "prudent insurer" test by a "reasonable assured" test. The proposed test would focus on the question of what a reasonable assured in the circumstances would think what is relevant to the judgment of the insurer. Finally, the Law Commissions are proposing flexible remedies in case of the breach of the duty. The Law Commissions are proposing no remedy when an assured is acting honestly and reasonably, while avoidance in case of dishonesty. On the other hand, The Law Commissions seem to have an intention to introduce a compensatory remedy in case of negligent breach of the duty.

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18

EU의 정기선 해운동맹 포괄면제 폐지와 그 영향에 관한 연구

최병권, 신건훈, 이병문

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.45 2010 pp.165-188

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

The repeal of the block exemption for liner conferences and the abolition of any "special EC antitrust regime" for the shipping industry marks an important step in European maritime competition policy. This article examines the origins and the rationale of the EC antitrust immunity granted so far to the shipping industry and explains the causes of this historical change. Moreover, based on the precedents which have appeared so far, a general assessment is offered under this new EC regime on agreements restricting competition in the liner shipping industry, in particular horizontal ones: conference and tariff/freight arrangements will be doomed, whereas the legitimacy of consortia agreements should not be cast in doubt; a case-by-case analysis will be the approach as regards exchange or dissemination of information by shipowners in the market, and the relevant case law which emerges on these matters in other industries will be the criterion for their evaluation. Finally, a few remarks are made in respect of the international dimension of the decision to outlaw liner conferences and hence carve out EU Member States from the UN Code of Conduct regime.

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19

영국 해상보험법 상 담보법원칙의 문제점 및 개혁 필요성

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.43 2009 pp.239-273

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice of Italian merchants were later introduced into England through Lombard merchants. It is, therefore, quite exact that English and Continental marine insurance law have common root. Nevertheless, some significant divergences between English and Continental marine insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was established in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has developed a unique rule on warranty. Bearing in mind the realities of the 18th century, it could easily be understood why Lord Mansfield afforded such a strict legal character to marine warranties. At that time, the 'promise' given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed dramatically since the times of Lord Mansfield. Of course, it is still important that the assured keep his promises to the insurer under the insurance contract, which is based upon utmost good faith. Nevertheless, the remedy of automatic discharge from liability, regardless of existence of a casual link between the breach and loss seems harsh in the realities of the 21st century. After examining the warranty regime adopted by the German and Norwegian hull clauses, it is fair to say that they provide a more equitable approaches for the assured than does English law. Therefore, this article suggests that English warranty regime needs overall reform and it is time to reform.

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20

영국 해상보험법상 담보(warranty)에 관한 연구

신건훈

[Kisti 연계] 한국무역상무학회 무역상무연구 Vol.42 2009 pp.275-305

협약을 통해 무료로 제공되는 자료로, 원문이용 방식은 연계기관의 정책을 따르고 있습니다.

Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of price, known as a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice were later introduced into England through the Continent. It is, therefore, quite exact that English and European marine insurance law have common roots. Nevertheless, significant divergences between English and European insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was developed and clarified in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance, and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has a unique rule on warranty. This article is, therefore, designed to analyse the overall rule of the rule of warranty in English marine insurance law. The result of analysis are as following. First, warranties are incorporated to serve a very significant function in the law of insurance, that is, confining or determining the scope of the cover agreed by the insurer. From the insurer's point of view, such the function of warranties is crucial, because his liability, agreed on the contract of insurance, largely depend on in, and the warranties, incorporated in the contract play an essential role in assessing the risk. If the warranty is breached, the risk initially agreed is altered and that serves the reason why the insurer is allowed to discharge automatically further liability from the date of breach. Secondly, the term 'warranty' is used to describe a term of the contract in general and insurance contract law, but the breach of which affords different remedies between general contract law and insurance contract law. Thirdly, a express warranty may be in any form of words from which the intention to warrant is to be inferred. An express warranty must be included in, or written upon, the policy, or must be contained in some document incorporated by reference into the policy. It does not matter how this is done. Fourthly, a warranty is a condition precedent to the insurer's liability on the contract, and, therefore, once broken, the insurer automatically ceases to be liable. If the breach pre-dates the attachment of risk, the insurer will never put on risk, whereas if the breach occurs after inception of risk, the insurer remains liable for any losses within the scope of the policy, but has no liability for any subsequent losses. Finally, the requirements on the warranty must be determined in according to the rule of strict construction. As results, it is irrelevant: the reason that a certain warranty is introduced into the contract, whether the warranty is material to the insurer's decision to accept the contract, whether or not the warranty is irrelevant to the risk or a loss, the extent of compliance, that is, whether the requirements on the warranty is complied exactly or substantially, the unreasonableness or hardship of the rule of strict construction, and whether a breach of warranty has been remedied, and the warranty complied with, before loss.

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