The Research On Suitability Obligation In Insurance Contract

Insurance consumer protection is the core of Insurance Law,and misleading sales of insurance seriously infringes the legitimate interests of insurance consumers.In terms of insurance consumer complaints in our country,misleading sales and other problems of insurance products are very serious.However,Chinese current regulation appears to be inadequate.From a worldwide perspective,misleading sales of insurance are the common focus of the modern insurance legislation,theory and case for all countries.While both the Common Law System represented by the United States and Britain,and the Civil Law System represented by Germany and Japan,as well as other countries or regions such as the European Union and Taiwan which has established suitability obligation System to protect the insurance consumers.However,suitability obligation progresses slowly in the insurance field in our country,and there is no relevant regulations for suitability obligation of insurance contract.As a result,the construction of suitability obligation of insurance contract is the starting point and the ending point of this article.However,we also must make full analysis for the definition of the concept,composition and properties,the necessity and possibility of the introduction of suitability obligation,as well as for the legitimacy based on theory,and for specific categories and legal effect.The specific contents are as follows:The first chapter defines the concept,constitution and nature of suitability obligation of insurance contract.Firstly,the concept of suitability obligation of insurance contract is clarified.Through the investigation to the concept of suitability,there are different categories based on different standards:general suitability and narrow suitability,positive suitability and negative suitability,reasonable-basis suitability,customer-specific suitability and quantity suitability.Based on the law background in our country,insurance contract obligations should be narrow suitability,positive suitability,and including two levels,reasonable-basis suitability and customer-specific suitability.Secondly,it integrates the constitution of suitability obligation of insurance contract.Initially,it makes a comprehensive analysis of suitability obligations of extraterritorial law,including customer understanding obligation,suitability assessment obligation,best interest obligation and recording obligation.Furthermore,it comparatively analyzes the content of suitability obligation of insurance contract,including inquiry obligation,advice and explaining reason obligation,and delivering the written report obligation.Thirdly,it analyzes the nature of suitability obligation of insurance contract.According to the control method of contract,suitability obligation belongs to information obligations,aimed at analysis and judgment of information,has the relationship and distinction between suitability obligation and information providing obligation,analysis obligation,hesitation system and review system.According to the time of the occurrence,suitability obligation of insurer belongs to precontractual obligation and contractual obligation,while suitability obligation of broker belongs to contractual obligation.And According to the subordination,insurer's obligation is obligatory obligation,while broker's obligation is the main payment obligation.The second chapter demonstrates the necessity and possibility of suitability obligation of insurance contract.Initially,the necessity of introducing suitability obligation is demonstrated by the discussion of governance of insurance misleading sales by Private Law and the review of Chinese current regulation.On the one hand,it argues that the regulation of insurance misleading sales from public law to private law.Insurance misleading sales includes improper description and improper recommendation,while the supervision law is absent,so it should be governed by the contract law.On the other hand,it explains the existing problems of China's current law in dealing with the misleading sales of insurance,including the defects of explanation obligation in Insurance Law,the dispute about the punitive damages of Consumer Protection Law;and the applying problem of the Contract Law based on serious misunderstanding of policy-holder,resulting in the absence of the current law on the protection of insurance applicant.Therefore,the information obligation of the insurer should be expanded from "description obligation" to"suitability obligation".Furthermore,the possibility of introducing suitability obligation of insurance contract is proved by the investigation of the historical evolution of suitability obligation in extraterritorial law.Combing the context and clues of development for suitability obligation,this article states suitability obligation originated in the field of securities,and its development from the professional ethics to legal obligation,the scope of application which extending from stock to financial products affected by the Financial Integration Theory,and then through the insurance contract,gradually extending to the insurance field.Extraterritorial law.suitability obligation comes to more mature in extraterritorial law.Based on insurance practice and law background in our country,it has conditions for introducing suitability obligations of insurance contract,and the institutional transplant from extraterritorial law to national law.The third chapter demonstrates the justification of suitability obligation of insurance contract.On the one hand,it reflects on the Consensus Theory.Traditional contract law theory based on autonomy of private law and freedom of contract,of which"agreement must be abide" works as the core,of which justification of the according is Consensus Theory,including two premise of both sides of contract is equal,and individual is the best judge of his own interests.However,in the insurance contract relationship,the negotiation ability under the contract is not equal and the serious information asymmetry leads the inequality of two parties.And insurance consumer cognitive deviation by the particularity of insurance goods,and decision-making deviation by misleading sales by insurer and broker,leads to the bounded rationality of insurance consumers,which results in the alienation of insurance contract consensus,so that suitability obligation is needed.On the other hand,suitability obligation is conducive to the reconstruction of complete insurance contract,and meets the requirements of the principle of good faith and valuation balance.Suitability obligation provides a paternalistic protection for the insurance consumer,which is beneficial to the reconstruction of complete insurance contract and maximize the contracting efficiency.And it requires insurer to consider the interests of consumers,in order to correct market failure under the structural inequality,and thus maintain the equilibrium of both contract sides,which is the inherent requirement of the principle of good faith and valuation balance.The fourth chapter deconstructs the basic category of suitability obligation of insurance contract.It is fully deconstructed from three aspects of suitability obligation of insurance contract,including performance subject,protection subject and the applicable object.Firstly,it discusses the performance subject of suitability obligation.According to the relativity of contract,the insurer ought be the most important obligation,or even the only one.But for the balance of the interests of both parties,the production of suitability should base on the certain premise,and can be exempted in certain circumstances.However,Insurance intermediaries often negotiation directly with policy-holder or promote insurance deals,which plays a very important role.Therefore,based on the protection of the interests of the insured,the performance subject should be extended,which including insurance agent and insurance broker.Insurance agent is the agent of the insurer,the legal consequence of whose action is assumed by insurer,and only assumes legal responsibility independently in exceptional case.The legal status of insurance broker is according to the specific situation of the comprehensive judgment,which is usually based on the legal status of independent and bears independently suitability obligation,and moreover,it can be replaced by suitability obligation of insurer.Secondly,it explores the protection subject of suitability obligation.There are two aspects for discussing protection subject:which insured can be provided protection,and what factors should be considered.Initially,because suitability obligation aims at correcting the unequal contractual capacity,so for people who have certain professional ability,as well as legal person or organization whose financial resources or the scale reaches a certain standard,should be excluded from the protection.Furthermore,the insurers who can get the protection,should be considered their needs and capabilities,and be decided whether they are suitable for the purchase of specific insurance products,so as to ensure suitability.Thirdly,it discusses the applicable object of suitability obligations.The insurance contract includes investment insurance and non-investment insurance.The investment insurance has particularity,of which suitability obligation comes from the investment part.Based on the characteristics of the mixed contract,suitability obligation is suitable for the whole investment insurance and introduced into the insurance field by positioning the insurance contract.Although the non-investment insurance does not have the investment attribute,the insured and the insurer have a trust relationship under certain circumstances,so it is necessary to apply suitability obligation.According to the difference between the two attributes,suitability obligation of investment insurance shall not be restricted,and the ability of insured payment and the risk to bear ability should be considered.And suitability obligation ought to be applied to non-investment insurance,of which the period is longer,the premium is higher or more complex,and the needs of the insured should be considered..The fifth chapter analyzes the legal effect of violating suitability obligation of insurance contract.This part also analyzes from two aspects,which is the liability of the insurer and the rights of the insured.Initially,it analyzes the legal liability of the insurer in violation of suitability obligation.Breach of precontractual suitability obligation can establishes contracting negligence liability,while breach of suitability obligation during the existence of contract constitutes the incomplete payment.According to review of our current civil liability system,contracting negligence and incomplete payment are independent responsibility type,which is the protection responsibility and is independent of the "contract-delict" dual responsibility system.According to the principles of the protection responsibility,combining with the norms of the insurance law in China,and referring to the relevant provisions of the extraterritorial law,the principle of presumption of fault should be the principle of fault liability.Under the principle of presumption of fault,the specific circumstances of violation of the appropriate obligation are analyzed.Furthermore,it analyzes the rights of the insured.First of all,the damage compensation claims.Combining the shortage of damage compensation claims in the Insurance Law,the Contract Law of our country,and absorbing the experience of extraterritorial law,it demonstrates the necessity of damage compensation claims,in order to build damage compensation claims of policy-holder in the case of the insurer breach suitability obligation,and the fault presumption is used in the burden of proof.According to the general principle of damage compensation,the scope of damages is analyzed.Secondly,"the right to depart from the contract".According to the legal effect of violation of collateral obligation and the explanation of "restoring the original state",it demonstrates the rationality of the right.By analyzing the right of disengagement,unconditional right to rescind and revocation,and the concurrence and deficiency of rights in the current legal framework,we will build the right to terminate the insurance contract when the insurer violates the obligation of suitability.The part of conclusion and suggestion.Through the integration and induction of the text,coordinating the proposals put forward by various chapters,based on our current law framework,and referring to the experience of foreign countries,it systematically constructs suitability obligation of insurance contract.Through the formulation of specific legal provisions,legislative proposals for the revision of the Insurance Law are provided in future.