Privatversicherungsrecht in Japan

Der „goldene“ Führerschein im Kontext der vorvertraglichen Anzeigepflicht

Abstract

The article deals with the insurance contract law reform and the new Insurance Law Act (Hoken-hō) in Japan, enacted in 2010. The subject matter focused on is the policyholder’s pre-contractual duty of disclosure (kokuchi gimu). In this regard, the insurer underwrites a risk in exchange for the premiums paid by the policyholder, for which the insurer needs to assess all material facts when making his calculation. The duty of disclosure obliges the policyholder to provide the insurer with such information, facts or circumstances which are material to the risk. As a result, the premiums to be paid correspond to the provided risk coverage.

If a material fact is not accurately disclosed, the premium and the risk assessment are based on misrepresentation. The insurer may consequently need to fill in the gap of the insurance benefit with his own financial resources. To prevent such a loss, in cases where a deliberate and reckless misrepresentation caused the occurrence of the insured event, the insurer has the right to cancel the contract with effect in futurum (ex nunc). The insurer need neither pay the insurance benefit nor return the premiums. Due to the breach of this duty, the policyholder forfeits his risk coverage and receives no benefit. This is the result of the all-or-nothing principle in insurance contract law. Insofar, it is specifically in the policyholder’s own interest not to misrepresent material facts.

The duty of disclosure gains particular importance in the conclusion of car liability insurance contracts. Here, the driver’s experience in operating a car in traffic is a material fact, one verified by the driver's license. In Japan, such experience is confirmed by different colours in the driver's license document. In fact, if the colour of the driver’s license is misrepresented, the insurer may cancel the contract and does not need to provide the insurance benefit. Such consequence is questionable as there cannot be a connection between the colour of the driver’s license and the occurrence of the traffic accident as the insurance event (causality); this connection is, however, a condition for the insurer’s right of cancellation. This doubtful assumption is exemplified by the decision of the Sendai High Court of 22 November 2012.

The Reform Commission suggested solving the causality problem by replacing the all-or-nothing principle with the principle of proportionality (pro rata approach). Here the insurance benefit is reduced proportionally subject to the significance of the breach of duty so as to balance the benefit with the inaccurate risk assessment and the incorrect premiums. The implementation of this proposal was opposed by the insurance industry for underwriting reasons. By contrast, as part of the 2008 VVG reform, Germany implemented in § 28 (2) VVG the principle of proportionality in a way that the insurance benefit is reduced proportionally subject to fault-based circumstances that are assessed on a case-to-case basis, an approach dubbed “Quotelung”. The reasons given by the insurance sector, it is recommended here to implement the same approach as in Germany, which also offers an alternative solution for the problem of incorrect information being given regarding the colour of a driver’s license.