A Study on the Exemption Clauses in Insurance Contract: Focusing on the Theory of Distinction between ‘Exception to Liability’ and ‘Exclusion to Covered Perils’

Jin Tae Yang
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Abstract

Even in the case of an insured event, the insurer is exempted from liability for insurance payments if it falls under grounds for exemption clauses in insurance contract. Professor Edwin W. Patterson, a renowned American insurance law jurist, divided exemption clauses into ‘exception’ and ‘exclusion’. In Patterson’s view, ‘exception’ is excepted causes of insured event, and ‘exclusion’ is the event to be excluded from insured event. He asserted that the insurer is not liable for paying the insurance payments, because an event that falls under ‘exclusion’ is not an insured event. Patterson’s ‘exception/exclusion distinction’ influenced some Korean insurance law scholars for a long time. In Korea, scholars influenced by Professor Patterson argue that the exemption clauses are divided into ‘exception to liability’ and ‘exclusion to covered perils’. ‘Exception to liability’ is ‘exception’ from Patterson’s view and ‘exclusion to covered perils’ is ‘exclusion’. In the theory of the distinction between ‘exception to liability’ and ‘exclusion to covered perils’, like Patterson’s view, the insurer is not liable for the event that falls under the ‘exclusion to covered perils’ because it is not an insured event. Scholars who support the distinction theory argue that it is natural for the insurer not to pay the insurance payments because ‘exclusion to covered perils’ is not the covered perils of the insurance contract. Korean distinction theory take as an example the unlicensed driving exclusion, which is a exemption clause of auto liability insurance, and call this exemption as a ‘exclusion to covered perils’ that is excluded from insured event. However, an accident that occurred while driving without a license also falls under the insured event(“accident that occurred while the insured owns, uses, and manages the insured car”), under the policy of auto liability insurance. Like unlicensed driving exclusion, the ‘exclusion to covered perils’ is written so that the insurer is exempted regardless of the causal relationship. However, it is not reasonable to conclude that ‘exclusion to covered perils’ is not included in covered perils and is excluded from the scope of insured event just because it is written in a non-causal format. Therefore, same as ‘exceptions’(exception to liability), policy clauses classified as ‘exclusions’(exclusions to covered perils) are also should be subject to the control of the court. In addition, because Patterson and Korean distionction theory do not provide a clear criterion for distinction, the absolute power should not be given to the ‘exclusion’. The legal validity of the distinction theory is very questionable.
保险合同中的免责条款研究——以“责任例外”与“险种除外”的区分理论为中心
即使是保险事故,符合保险合同免责条款的,保险人也免除给付保险金的责任。美国著名保险法学家埃德温·w·帕特森教授将免责条款分为“例外”和“排除”。帕特森认为,“例外”是保险事件的例外原因,“排除”是保险事件中被排除的事件。他断言,保险公司没有支付保险金的责任,因为属于“排除险”的事件不是保险事件。帕特森的“例外/排除区分”长期影响着一些韩国保险法学者。在韩国,受帕特森教授影响的学者们认为,免责条款分为“责任例外”和“危险排除”。在帕特森看来,“责任例外”是“例外”,“承保风险排除”是“排除”。在区分“责任例外”和“承保风险排除”的理论中,如帕特森的观点,保险人对属于“承保风险排除”的事件不承担责任,因为它不是保险事件。支持区别理论的学者认为,保险人不支付保险金是很自然的,因为“承保风险排除”不是保险合同的承保风险。韩国的区别理论以汽车责任保险的免责条款——无证驾驶免责条款为例,将这种免责条款称为排除在保险事件之外的“承保风险的免责”。但是,在无证驾驶时发生的事故也属于汽车责任保险的保险事件(“在被保险人拥有、使用和管理被保险汽车时发生的事故”)。与无证驾驶免责条款一样,“承保风险免责条款”是为了使保险公司不受因果关系的影响而获得豁免。然而,仅仅因为以非因果格式书写,就认为“承保风险除外”不包括在承保风险中,并被排除在保险事件范围之外,这是不合理的。因此,与“例外”(责任例外)一样,归类为“除外条款”(承保风险除外)的保单条款也应受到法院的控制。此外,由于帕特森和韩国的分割理论没有提供明确的区分标准,因此不应将绝对权力赋予“排除”。区别理论的法律效力是非常值得怀疑的。
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