Research On The Double Insurance System

The double insurance system is an important system in the insurance law. It is based on the principle of the indemnity, and the most important one of its functions is to prevent the insured from obtaining the profits which exceed his actual loss. Because our country's insurance law system is an imported product, and the study of the insurance law is ignored, people don't understand the double insurance system, and even mistake it. In the legislation and the judicial practice, the Clause-article 41 on the regulation of the double insurance, and the stipulation is simple and rough. In the view of the above phenomena, this paper tries to study the double insurance in details in order to give some advices to perfect the double insurance system of our country. During the course of writing this paper, the methods, such as the analysis of the demonstration, the comparison test research and historical analysis method, are used.This paper consists of three parts: preface, main content and conclusion.Intending to give a pre-conditional explanation for the studies below, the preface is mainly focused on the flaw of the Clause-article 41, and the puzzle which arises in the practice.The main content is divided into four chapters:Chapter I first gives definition on the concept of the double insurance, and according to the functions of the double insurance system, the narrow sense double insurance conforms to the legislative intention of the double insurance. Following the definition of the double insurance, this paper points out that to recognize double insurance, it must fulfill the six conditions: the same insurable interest, the same peril, the same insured, the same Insurance period, and the several contracts with different insurers but the sums exceed the value of the subject matter insured。ChapterⅡdoes research on the scope of the application of double insurance. By analyzing the fundamental theory of the insurance law, the legal provisions of the different countries and the scholars'views of insurance law, especially the different viewpoints about the application of the double insurance in life insurance, the author finally draws the conclusion: The double insurance should be applied to the indemnity insurance. Taking the characteristics of the liability insurance and the life insurance which has the characteristic of the indemnity into account, the author advices that we can take South Korean commercial law for reference with explicitly analogizing the articles of the double insurance.ChapterⅢfocuses on the legal effect of the double insurance and the duty of the notification. This part is the most important part of this paper. There mainly are two kinds of relations in the double insurance, one is the relation of rights and duties between the insured and each insurer, the other is the relation of rights and duties among insurers. When elaborating the former, this paper mainly analyzes the insured's right of the claim and his right of asking for the return of premium. When elaborating the latter, this paper discusses the right of the contribution among the insurers, mainly the nature of the contribution, the methods used to contribute the loss and the influence the other insurance clauses put on the contribution.This chapter also analyzes the duty of notification of the double insurance. In practice, people usually mistake the duty of notification. This paper draws conclusion that the duty of notification is the contingent duty. If the insured doesn't perform it and causes the loss to the insurer, the insurer is authorized to request the insured to undertake liabilities for breaking the contract, but the insurer can't refuse his obligation with the excuse of the failure to perform the duty of notification of the double insurance.ChapterⅣproposes some advices to perfect our country's double insurance system. This part is the purpose of the paper, and the author proposes the following solutions: First, perfecting the regulation of the insurance law, such as perfecting the conditions of double insurance, changing the undertaking way of the insurers'responsibilities; Secondly, perfecting the necessary measures, for example, the insurers can negotiate to establish the platform for sharing the information of the compensation and formulate the guiding principle of contribution.The final part is a summarization of this paper, recapitulating the central thesis of the paper, which will thus serve as a conclusion.