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Research On The Obligation To Inform In Insurance Law

Posted on:2008-05-09Degree:DoctorType:Dissertation
Country:ChinaCandidate:X S WangFull Text:PDF
GTID:1116360242459712Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The insurance law enacted in 1995 has passed the 20th century, which met the practical need in the first stage of the development for the insurance in our country. In October, 2002, in order for our country's entrance to WTO, we have to make a hasty revision on this insurance law. Since there is no time for enough preparation, the revision only satisfied the basic requirement of the WTO rules, this is to say that there is no fundamental changes happened. In fact there are many gaps and omissions in the insurance law in our country needed to be resolved and filled in by legislation. Revision can't keep pace with the speed of the recovery of the China economy. Facing the wake of 21 century, the first insurance law of our country needs to be revised in large scale. People are expecting that the coming of the 2nd revision. Actually the legislature is working at the revision of the insurance law, which includes the obligation to inform.The so called obligation to inform means when making the conclusion of the insurance contract, the obligator should inform the people who entered into the contract the entire factual situation. Although in real practice there is such regulation in the insurance contract, but the obligation to inform is not written by agreement, but regulated by legislation. In jurisprudence, the obligation to inform is a very important concept in insurance law, which is regarded to be one of the representations of the bone fide rule. The obligation to inform is related to the quality of the conclusion of insurance contract, which determines the future of the insurance contract. As to those people who want to decrease the risks, the obligation to inform is crucial. According to the judicial statistics from main land China and Taiwan, the conflicts caused by violating the obligation to inform are the most common. Judging from those reasons mentioned above, the concrete regulations of the obligation to inform have much to do with the interests of partners. But in fact there are lots of gaps and omission as to the obligation to inform in the present insurance law, resulting in failing to adjust partners'action reasonable, also resulting in failing to fulfill the aim of setting up the obligation to inform. So we should rethink the legislation about the obligation to inform, by doing so we can deepen the understanding of the obligation to inform in theory.This dissertation consists of the following parts:Firstly, being the legislation of the principle of utmost good faith in insurance law, the obligation to inform rests much on the calculation of the risks and the evaluation of the working for insurance system. Secondly, there is a big gap to the regulation about the subject of the obligation to inform in the present insurance law, which should be enlarged to the insured. Thirdly, there are defects as to the criteria for judging and determining methods of the facts which should be notified. The author suggests that in the coming revision, the legislation should adopt the method of writing inquiry. Fourthly, the regulation to the subjective component of the obligation to inform is unreasonable, which should differentiae general negligence and the gross negligence. Fifthly, there is no time limit as to the right of insurer to rescind the obligation to inform. In the future revision, the order and timing of the exercise should be added into the legislation.Here following the spotlights in this dissertation:Firstly, it is the first time in this dissertation to use economic analysis model to research on the legislative model and choice for the obligation to inform, which will provide valuable lessons for the coming revision on the insurance law.Secondly, it is the first time in this dissertation to analyze the subjective component of the obligation to inform, which argues that there is breach of the obligation to inform only when the obligator has gross negligence or more grave mental states.Thirdly, it is the first time in this dissertation to analyze comprehensively the obligation to inform and provide concrete revision, which will do great good for the revision on the future legislation. There are five chapters in this dissertation:Chapter I: introduction. In this chapter, the author defines the basic concepts which will be used for the future analysis. Also in this chapter, the author explains core idea and structure of this dissertation. By doing so can we master the thread of thought and whole picture of the argument, which includes 3 parts, i.e., the choice of the title, the basic problem and its implication and the methodology.Chapter II: basic principles of the obligation to inform. In this chapter, the author tries to explain the meaning, characteristics and functions of the obligation to inform. Firstly, the author argues that origin and meaning of the obligation to inform, by doing so to clarify its special value in insurance law. Secondly, by comparing the obligations in general civil contract, the author holds the reason why the obligation to inform should be included into the insurance law. Judging from those mentioned above, the author then explains the function of obligation to inform lies in let the partners know that necessary information. For insurers, only after the disclosure of necessary information can they access the risks. Finally, as to those disputes about the characteristics of obligation to inform, evaluating its value and shortcoming, the author points the reason why the obligation to inform should not be regarded as a real obligation.Chapter III: the history of the obligation to inform. In this chapter, by tracing back the history of the obligation to inform, the author analyzed the development from its origin to the status ago. Firstly, the author inspects the ascertaining of the obligation to inform in the insurance law. Secondly, the author comprises the obligation to inform in England, in France, in Germany and in Japan. Finally, by doing so, the author tries to discover the ideology behind the legislation.Chapter IV: the basic concepts of the obligation to inform. In this chapter, the author talks about some problems such as the subject of the obligation to inform, the qualification to justify and timing limit. Firstly, through analysis on the defects in the subject of obligation to inform in the present legislation, the author argues that we should enlarges the scope of the subject of the obligation to inform, secondly, the author also discovers the problems to ascertain the qualification to inform, by doing which provides suggestion for the related legislation. Finally, the author tries to reconstruct the constitution of the obligation to inform in this chapter and reevaluate the legal consequence of the breach of the obligation.Chapter V: The legal revision on the obligation to inform. Since there are very serious defects in the legislation of the insurance law, the author provides his own suggestion in this chapter. Firstly, by analyzing the legal status before in our legislation, the author points out the specific defects in the legislation. Secondly, as to the defects of the Arfical 17 of insurance law in our country, the author offers his own design for the revisers to borrow in the future legislation.
Keywords/Search Tags:Truthfully inform, Crucial facts, Criteria to judge, Legal consequence, Legislative suggestion
PDF Full Text Request
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