A Comparative Study On Protection For Interests Of Policyholders In The Insurance Company Insolvency

Since the reform and opening of China,although there is no official report of insurance company insolvency,in fact,it is not completely fresh that insurance companies meet or nearly meet the standard of insolvency and thus are removed from the market through various ways.Receivership of Yongan P&C Insurance,restructuring of Ruifude Health Insurance,equity purchase of Xinhua Life Insurance and Zhonghualianhe P&C Insurance by Insurance Guaranty Fund,are good evidence that risk control ability of China's insurance companies is not better than others.On the contrary,it is clearly shown that healthy and ideal competition order has not been established yet.One reason of that is that legal construction of insurance company insolvency is still on the way.However,on how to perfect insurer insolvency legislation,protection for interests of policyholders takes the priority.It is not only the value choice but also incarnates the particularity of the insurer insolvency legislation.Study on protection for interests of policyholders in the legislation of insurance company insolvency has vital theoretical and practical meanings.Based on this,this thesis focuses on the point,and articulate protection for interests of policyholders in propositional procedure,rehabilitation and liquidation of insurance company insolvency,with the attempt to afford beneficial reference for the future legal construction.The thesis has the following seven chapters:Chapter one,Introduction.Firstly,the thesis explains the background,analyzes the practical possibilities of insurance company insolvency,clarifies the great importance of legal institutions on dealing with such events and its important place in the whole insolvency legal system,and set forth the theoretical and practical meanings of this study.The second part is literature review,combing current research results on insurance market exit,insurance company insolvency,protection for interests of policyholders,and insurance guaranty fund institution,summing up the present position and pointing out the weaknesses of the research.The third part lists problems this paper intents to resolve,and then states the innovation and deficiency.Chapter two,The Theoretical Basis and Protection Principles of Policy Holders' interests.This chapter aims to make preparation for the deep discussion of the next,through introducing modern insolvency ideas,stating the definition of policyholders and the legal rights and benefits of this group,clarifying the theoretical base of protection for interests of policyholders,and making clear three basic principles of protection.Chapter three,Protection for Interests of Policyholders in prepositional procedure of insurer insolvency.This chapter is the first main part under problem orientation.Preposition procedure is an important characteristic of insurance company insolvency.It can be translated to insolvency judicial procedure,and can dominate the rebirth or death of an insurance institution.Prepositional procedure is especially crucial to the protection for interests of policyholders in our regulation practice,because through case analysis,we can find out till now almost all emergency events in our insurance market are disposed through this procedure.No judicial procedure has been resorted to yet.This part introduces the general theories in this field and the related legislation of some jurisdictions,looking for disadvantages of protection status for policyholder in our propositional procedure and supply improvement suggestion on this point.Chapter four,Protection for Interests of Policyholders in Rehabilitation of insurer insolvency.This chapter is the second main part under problem orientation.Rehabilitation fully embodies rescue culture within the modern insolvency law regime,reflecting to a larger extent free will of the parties and enterprise rescue spirit.However,because of the particularity of policyholder group,rehabilitation draft plan between this sensitive group and insurance companies are not allowed to float outside of the judicial control and oversight.Now,the rules on protection for interests of policyholders in insurance company rehabilitation are basically blank in our country,however,some other jurisdictions have carried out judicial practice in this field,which deserves our study and learn from.This part try best to collect the special rules on protection for policyholders and insurance debts in rehabilitation in some countries,highlights the deadline of right damages of policyholders in rehabilitation procedure in this countries,which is also the question of interest balance between policyholders and other related parties,and makes suggestions on how to improve rehabilitation in our country.Chapter five,Protection for Interests of Policyholders in Liquidation of insurer insolvency.This part is the most complicated link of the insurer insolvency procedure,of which questions related to protection for interests of policyholders are as follows: set-off of debts between insurer and reinsurer,insurance brokers;the match of particular assets and debts;categories of debts,such as secured debts,insurance debts,general unsecured debts,etc.;priority for creditors,like insurance debts are paid in priority,which debts could be classified as insurance debts,etc.;and how to deal with different debts.Insurer insolvency events have indeed occurred in some countries and regions,and thus the detailed rules on how to dispose insolvency events are relatively perfect in these jurisdictions.We have established basic liquidation principles and rules on insurance debts being paid in priority,assignment of insurance debts in insurer liquidation,but how to enhance feasibility and operability is the emphasis of this chapter.Chapter six,Protection for Interests of Policyholders in transnational insolvency.From the perspective of interests of domestic policyholders,this chapter discusses extraterritorial effect of the transnational insolvency,the recognition and assistance of the insolvency process initiated by court in another jurisdiction,and the protection of the domestic policyholders' interests in the situation of a cross border insurance company insolvency.All these are logical starting points of study on policyholders' interests in the transnational insolvency field.In the background of international cooperation on transnational insolvency,we should go along with this historical tide,adopting the principle of universality.However,what's important is that we should take a prudent and practical attitude no matter towards the theory preference or on the legislation choice on method of recognition and assistance,and dealing with cross border insurance company insolvency.Chapter seven,Conclusion.After discussing the important questions on insurance company insolvency from both domestic and international law perspectives,this chapter aims to refine the institution of policyholders' interest protection.In a horizontal angel,this chapter make a conclusive summary from value orientation,administrative and judicial cooperation,substantive rights,procedural rights,supporting measures,and transnational insolvency.