브렉시트 이후 해상책임보험의 보험자에 대한 제3자 직접청구권의 행사에 관한 고찰 : 로마Ⅱ 및 Retained EU-Law를 중심으로

Abstract

Article 18 of REGULATION (EC) No. 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 July 2007 on the law applicable to non-contractual obligation (Rome Ⅱ) stipulates that the court chooses a law that is advantageous to the victim ex officio by selectively linking direct claims to the governing law of non-contractual obligation and the governing law of insurance contract. Regarding the interpretation of the above provision, the Court of Justice of the European Union(CJEU) ruled that victims can directly claim against insurers as long as the governing law of non-contractual obligation permits, regardless of the provisions of the governing law chosen by the parties to the insurance contract. In addition, after Brexit, Rome II is Retained EU-law, and CJEU's ruling on Article 18 of Rome II is Retained EU case-law, which remains effective in the UK, respectively. Meanwhile, the Supreme Court of the UK declared the basic principle that victims cannot stand in a better position than policyholders in the Fanti and Padre Island cases, revealing the validity of the pay to be paid rule. Subsequently, the lower court rulings in the UK also did not allow the victim to exercise the right to claim directly against the insurer in other countries on the grounds that the victim also was bound by the jurisdiction agreement stipulated in the insurance contract between the insurer and the insured. However, the Fanti and Padre Island cases of the Supreme Court of the UK were not only before the enforcement of Rome II, but CJEU clearly ruled on the nature of Article 18 after the enforcement of Rome II, and its effect is still maintained in the UK. In addition, in the current situation where CJEU's ruling applying the Brussels I regulations and the above regulations is no longer effective for the UK, the exclusive jurisdiction clause(e.g., the English Court) stipulated in the insurance contract is likely to take precedence. However, if the UK joins the 2007 Lugano Convention in the future, which is substantially the same as the Brussels I Regulations, the purpose of CJEU's ruling, which was based on the Brussels I Regulations, can be considered important again. In the end, even if a lawsuit is filed in a Korean court to exercise the victim's right to claim directly against the insurer, and insurance contracts between the insurer and the insured stipulate English laws and customs as governing law, relevant interpretations should be made based on Article 18 of the Roman II(Retained EU-law) and the purpose of CJEU's ruling(Retained EU case-law), so that victims can be protected heavily by allowing selective connections to the governing laws of the country in which the damage occurs.