The Theory Of Chinese Marine Insurance Law And General Law Of The Coordination

It is definite that the marine insurance law should be coordinated with other insurance laws. In China, marine insurance is mainly stipulated in Chapter XII of Maritime Code of the P.R.C.(hereinafter referred as CMC). The application of marine insurance has not been excluded in Insurance Law of the P.R.C.(hereinafter referred as CIL). Therefore, CMC should be regarded as the special law of marine insurance, while CIL the general law. Due to Chinese legislative background, there exist some duplication and unreasonable conflict of their provisions, and it is of high necessity to study on how CMC (Chapter XII), as the special law, is coordinated with the amended CIL, which came into force in2009.Less attention worldwide has been paid to the coordination between marine insurance and other insurance laws because of the unique feature of the former. However, the recent development shows that the situation has changed remarkably, that is, some particular rules which for granted in marine insurance has been changed or be in transition and reforms in field of non-marine insurance law have influenced over marine insurance law, which make the author probe into the ranges of conflict or uniformity between CMC and other insurance laws. In this dissertation, centering on CMC and CIL and guided by methodologies of comparative analysis, historical analysis and systematic analysis, the author makes a study on whether marine insurance law should and could coordinate with general ones, attempts a comprehensive review on foundations and development trends of coordination between CMC and CIL in some developed countries, and puts forward suggestions on perfection of CMC and CIL as well. In addition to the introduction and conclusion, there are five chapters, with the main contents as follows:In chapter I the author examines the stipulations in marine insurance law and general insurance laws in China. According to a detailed comparison, the author lists some duplication, conflicts and open textures of the provisions, and points out the necessity of coordination of CMC with CIL,In chapter Ⅱ the author concentrates on the fundamental theories concerning the coordination of CMC with CIL. Firstly, the author analyzes the different legislative background and points out the causes leading to such abnormality. Secondly, the author examines the theories of legislation focusing on the theory of systematization applied in law-making to realize the aim above. Thirdly, the author analyzes the possibility of coordination based on the universality of CMC and CIL. In chapter Ⅲ the author studies the systems and rules of conflict in CMC and CIL, questions whether the conflict is reasonable, expounds the possibility of unity and puts forward suggestions. As to the system of disclosure, the insured assumes more duty according to CMC, which should be amended to balance the interests between the insurers and the insured in aspects of ways of disclosure and liabilities of violating the duty. Since the systems of subrogation and double insurance both derive from the principle of indemnity and are irrelevant with the unique features of marine insurance, rules of CMC and CIL concerned should be uniformed.In chapter Ⅳ the author focuses on the warranty adopted by CMC and the notification of increase in risk contained in CIL from the view of functional comparison. In view that the two laws adopt different ways of controlling risks during the period of time in coverage, the author attempts to value and decide which one is suitable in China considering Chinese legal culture and how the selected should be applied in the field of marine insurance, based on a comparative study on the challenges and developing trends of warranty in some countries, and the related rules in CMC and CILIn chapter Ⅴ the author concentrates on the rules and systems stipulated in CIL while absent in CMC, such as the doctrine of insurable interest, the insurers’duty of explanation and construction rules of contra proferentem, and intend to explore whether these systems in CIL could be applied in the field of marine insurance, whether there are difficulties while putting into practice, and how to link up rules of the laws. The author insists that the rules that the insured must be attached insurable interest at the occurrence of incidents should be applied for marine insurance. The broader and more flexible criterion of insurable interest called "economic insurable interest" should be adopted in CMC because the criterion adopted in CIL called "legal insurable interest" is too narrow to hinder the marine commerce. Moreover, the special rules of reasonable duty of explanation should be established in CMC because the duties concerned in CIL are too strict and the contracting power of the insurers and the insured in marine insurance is not as unbalanced as in general insurance business.