1993년 개정 상법이 제3자의 직접청구권을 도입함에 따라 책임보험자는 가해자인 피보험자와 달리 아무런 법률관계를 맺지 아니한 피해자인 제3자에 대하여도 보상책임을 지게 되었다. 이러한 청구권의 인정은 책임보험이 피보험자의 보호기능 뿐만 아니라 피해자의 보호기능도 있다는 점이 반영된 것으로 이를 통하여 특정 법률이나 개별 약관에 의하여 예외적으로만 인정되어 왔던 제3자의 직접청구권은 이제 모든 유형의 책임보험에 적용될 수 있게 되었다. 그런데 모든 유형의 책임보험에 적용가능한 제3자의 직접청구권이 해상보험에 특유한 책임보험에 적용됨에 있어서는, 현실적으로 대부분의 해상책임보험약관이 영국법과 관습을 준거법으로 하고 있고, 이러한 준거법상으로는 상법상 제3자의 직접청구권에 비하여 보다 엄격한 조건들을 제3자의 직접청구권의 행사 요건으로 규정하고 있기 때문에 해상책임보험에 관한한 상법상 제3자의 직접청구권은 그 제도적 취지가 퇴색될 수밖에 없는 것으로 보인다. 우리 대법원은 일반 보험과 달리 해상보험에 있어서는 보험자와 피보험자간의 교섭력이 대등하다는 점에 터잡아 해상보험업계에서 오랫동안 유지되고 확립되어온 영국법 준거약관의 유효성을 인정하고 있다. 그러나 제3자의 직접청구권이 보험계약 당사자 아닌 피해자 보호를 주된 목적으로 하고 있다는 점을 감안한다면, 해상책임보험에 있어서의 제3자의 직접청구권에 관한 한 영국법 준거약관의 유효성 문제는 추후 재론의 여지를 남길 것이다.

As a provision for third-party rights against insurers was introduced into the Korean Commercial Act in 1993, insurers shall now be obliged to cover a third-party claimant’s damages, even if there is no contractual relationship between the insurer and the third-party claimant that suffered damages. Introduction of this new provision was based on the view that liability insurance functions for third-party sufferers as well as for the insured. Thus, the third-party rights against insurers that was previously applied only in limited particular statues and clauses are now applied to all liability insurance. However, with respect to third-party claim rights against insurers in marine insurance, the original intent of the third-party rights against insurers has faded. The reason is that the governing law clauses of most marine insurance contracts calls for the application of English law and practice, not the provisions of the Korean Commercial Act, and English law provisions regarding the rights of third-party claimants is must stricter than those under Korean law. The Korean Supreme Court has recognized the validity of governing law clauses being continuously supported and preserved in the area of marine insurance on the consideration that it is possible for the insured to negotiate with the insurers on equal footing in concluding a contract for marine insurance. However, there is likely to be room for reviewing the validity of a governing clause adopting English law and practice in that the Korean law provisions for the rights of third parties to claim against insurance companies was adopted to provide protection of the rights of damaged parties, not the protection the interests of parties with directly claim rights under the insurance contract.

As a provision for third-party rights against insurers was introduced into the Korean Commercial Act in 1993, insurers shall now be obliged to cover a third-party claimant’s damages, even if there is no contractual relationship between the insurer and the third-party claimant that suffered damages. Introduction of this new provision was based on the view that liability insurance functions for third-party sufferers as well as for the insured. Thus, the third-party rights against insurers that was previously applied only in limited particular statues and clauses are now applied to all liability insurance. However, with respect to third-party claim rights against insurers in marine insurance, the original intent of the third-party rights against insurers has faded. The reason is that the governing law clauses of most marine insurance contracts calls for the application of English law and practice, not the provisions of the Korean Commercial Act, and English law provisions regarding the rights of third-party claimants is must stricter than those under Korean law. The Korean Supreme Court has recognized the validity of governing law clauses being continuously supported and preserved in the area of marine insurance on the consideration that it is possible for the insured to negotiate with the insurers on equal footing in concluding a contract for marine insurance. However, there is likely to be room for reviewing the validity of a governing clause adopting English law and practice in that the Korean law provisions for the rights of third parties to claim against insurance companies was adopted to provide protection of the rights of damaged parties, not the protection the interests of parties with directly claim rights under the insurance contract.

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Marine Insurance, Direct Claim, Rights, Liability Insurance, Protection & Indemnity Club, English Third Parties Act, Governing Law, Protection of Victims, Pay First Clause, Marine Adventure.