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Research On Insurer's Statutory Rescinding Right

Posted on:2005-08-29Degree:MasterType:Thesis
Country:ChinaCandidate:F X YangFull Text:PDF
GTID:2156360125470364Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Insurance contract rescinding system is one of the most important systems in our insurance law. There are 11 articles on the rescinding, among which the regulations on the insurer's rescinding right are very complicated. The purpose of this paper is to further improve the theory of the insurer's statutory rescinding right. It has two aspects. The first aspect is to confirm insurer's right and protect its interests. The second aspect is to define the condition to exert the rescinding right and restrict insurer from abusing such right. As for this paper, the second aspect is overwhelming, because the most obvious defection of insurer's statutory rescinding right lies in its too loose exerting condition.There are two reasons for the defection of the theory and the regulation on insurer's statutory rescinding right. The first is that they do not accord with the general civil principles. The second is that they do not accord with the characters of insurance. The first is the primary reason. So the author tries to use the basic civil theory to analyze insurer's statutory rescinding right. The research method combines theory analysis and practice demonstration. The author has look through all the principle insurance clauses. On the basis of the analysis of the present law and judicial practice and reference of legislation and common rules of the developed country and international community, the author tries to use the traditional civil theory to analyze and reform the insurer's statutory rescinding right. Meanwhile, the author introduces some principles of Anglo-American law system in consideration of the characters of insurance.After reformation of the traditional civil theory, most defections disappear. But during the process of analyzing, the traditional civil theory must be reformed itself. Some special standards may become common rules. As for the special rescinding right, this paper try to combine traditional civil theory and some principles of the Anglo-American law system to analyze it .The first chapter discusses the concept, character and distribution of the insurer's statutory rescinding right. The emphasis falls on the source and character of the regulations on the right, among which the relative statutory regulation is concerned. The second chapter discusses the occurrence of the right. We can divide the reasons into three groups, that is, breach, failure to perform the obligation of making an honest disclosure and change of circumstance. The basic defection on the reason of breach is that it neglects the fundamental breach theory and may cause insurer abusing such right. It is quite special that insurer can get the right because of the applicant's failure to perform the obligation of making an honest disclosure. In the view of traditional civil theory, it need further discussing that whether it should be regulated as rescinding right or rescission right. In order to mend such defection, it is not possible to just use the contract theory of the continental law system. The balance of consideration principle of the Anglo-American law system is also needed. As for the third reason, it is the reflection of the change of circumstance principle. Our contract law does not adopt this principle, but it does not mean this principle unreasonable. Nor does it mean inapplicable in other laws. The most obvious defection on this term is that the condition to exert such right does not accord with the theory of change of circumstance principle. The third chapter discusses the exertion, extinguishments and force of the right. Our insurance law is lack of the regulations on the extinguishments of the right. The retroaction will be different to each party for different reasons. Whether the right to hold the premium is a kind of punitive compensation need further research.Based on the foresaid analysis, the fourth chapter comes some conclusions as following: the system can apply contract law and other civil law. It can apply the theory of contract concerning third party. We should also int...
Keywords/Search Tags:fundamental breach, balance of consideration, change of circumstance, contract concerning a third party
PDF Full Text Request
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