The Insurer's Right to Terminate for Breach of Duty to Notify in Case of Continued High Risk Due to Violation of Duty of Disclosure During the Insurance Period : Critical Review of the Supreme Court Decision 2024Da219766 on June 27, 2024
Authors:   Korean Insurance Law Association, Kim Won Gak 
Published: November 2024

The Supreme Court of Korea recently adjudicated a case involving an insured party who, having breached the duty of disclosure under Article 652 of the Commercial Act, maintained a risk state following the conclusion of the insurance contract, leading to the occurrence of an insured event. In this ruling, the Court determined that while the insurer is entitled to rescind the contract pursuant to a violation of the duty of disclosure under Article 651 of the Commercial Act, it may not do so on the basis of a breach of the duty to notice under Article 652. The rationale for this decision lies in the fact that the risk conditions in question pre-existed at the time of the contract’s formation, constituting a violation of the duty of disclosure, rather than emerging or escalating post-contract.
In this case, the insurer's right to terminate the contract with respect to the insured had lapsed, as the termination period stipulated under Article 651 of the Commercial Act and the relevant policy provisions had expired, thereby precluding the insurer from exercising its right of termination. The insured maintained a high-risk status for nearly 12 years, despite paying relatively low premiums. Nevertheless, the beneficiaries were able to receive the full insurance benefits as though no misconduct had occurred.
As the court itself clarified, the judgment of the court adheres strictly to the textual interpretation of Articles 651 and 652 of the Commercial Act. However, serious doubts arise as to whether this is equitable, particularly when compared to other applicants who, after fully complying with their duty of disclosure, have either been denied coverage or forced to enter into contracts under less favorable terms, or insured parties who have mitigated their risk post-policy issuance. Notably, the decision in Case 2024Da219766 seems to diverge from the precedent set in Case 2019Da236286.
This paper aims to explore solutions to mitigate instances where parties exploit the legal grey area between Articles 651 and 652 (up to Article 653) of the Korean Commercial Act by conducting a textual interpretation of these provisions. Specifically, the Supreme Court decision 2019Da236286 illustrated the potential to resolve this issue through a purposive or teleological approach to statutory interpretation. However, if such an interpretive method exceeds the permissible bounds of legal interpretation, it would be necessary to consider legislative amendments to address the gap. Additionally, in the 2024Da219766 decision, the exercise of the right to terminate an insurance contract due to a breach of the duty of disclosure was precluded by the application of an incontestability clause. This raises a pertinent question as to whether such a clause, long regarded as standard, effectively balances the interests of both the insurer and the insured. In this paper, the development of the incontestability clause in the United States is examined, alongside a critical evaluation of the challenges it poses in the context of equitable outcomes in insurance law.
It is anticipated that ongoing academic discussions will contribute to the improvement of current laws, relevant clauses, or judicial precedents that may inadvertently foster or overlook policyholder moral hazard, thereby promoting the establishment of a more sound and sustainable insurance transaction framework.