Research On The Principle Of Waiver And Estoppel In Insurance Law

Our country "insurance law" amended on 28 February 2009. October 1, insurance law is on effective. The second amendment of insurance law reveals estoppel rules. article 16, paragraph 6 is the new content. On the one hand, the right of the issuer which is based on inform obligation have been restricted. On the other hand, insurance applicant or insurance beneficiary's right has been protected. That is when the insurer is fully aware of the insurance's fact and situation, even if insurance applicant is not fact truthfully informed, the insurer would not terminate the contract, and shall assume insurance responsibility when the occurrence of an insured event. The essence of inform obligation is fully aware of the information, and makes the correct risk assessment and the conditions. If the insurer has been ware of the insurance applicant's conditions, based on their own requirement and the principle of good faith, the insurer should take the initiative act, or as abstained. This rule has fully considered the balance of interests, which in essence is the ease of insurance applicant's inform obligation, promote the insurer's due diligence.Based on the common law with estoppel and waiver for perspective, from system origin, development and the present situation of the system, the literature research is conducted on the domestic research and integrated with the part of Anglo-American law system view, investigated similar systems with continental law system of transplantation, lessons from the mainland legal system country, finally the relevant provisions of the insurance law of our country in the new revised for insurance, this paper analyzes discussed from four aspects:The first part, waiver and estoppel principles of origin. Using historical analysis method to study waiver and estoppel system, analyzes the origin of the two system of estoppel and waiver. Evidence law from the application of estoppel, to the emergence of equitable estoppel, and finally developed into estoppel system, waiver and estoppel to the historical context is clearly visible. This thesis uses a lot of British style classic case. Jorden v. Money case, discussed the principle of equitable estoppel applies only to facts; Derry v. Peek(1889) case illustrates that when the presenter only knows, fraudulent misrepresentation of facts and has the duty to inform not only as, the presenter compensates for losses suffered by the other party; High Tree's case shows screen is the rigid rules, citing Denning for estoppel "practice what they preach" classic expression. Last discussed estoppel in the modern development, its relationship with the contract system.The second part discusses the waiver and estoppel of the content. The nature of the waiver system to do a simple definition, that waiver is a unilateral act. Insurance Law defines the concept of waiver:the insurer knows their own rights on the revocation of insurance policy and other rights or defenses, and expressly or impliedly, to the insurance applicant that a waiver of such right of avoidance or defense system. Analysis of the definition of estoppel, the introduction of the American contract Law (Second) Restatement of the comments on the estoppel. Analyzing the nature of estoppel are areas of tort. The scope of estoppel is defined as: intentional or negligent acts of the insurer resulting in of a insurance applicant or the insured had reasonably relied on by the fact that, if allowed to insurers based on the particular facts or the exercise of the right to revoke the right of cancellation would damage the interests of the insured or the insurance applicant, the insurer must be bound by their words and deeds, prohibits the exercise of withdrawal rights and the right of cancellation. Then, Waiver and estoppel were compared, summed up the similarities and differences between the two.The third part discusses the waiver and estoppel constituents. Summed up the waiver of three elements:First, the insurer entitled to by law or based on rights arising from insurance contracts. Second, the insurer knew or should have known the insured or the insurance applicant who contravenes the fact that the legal or contractual obligations; Third, the insurer's intention to waiver. Part of the estoppel discussed the composition of three elements:First, there is the insurer of the first acts of intentional or negligent; second, the first acts of the insured or the insurance applicant have led to reasonable reliance; the third, denying the first act will cause damage to the insured or the insurance applicant. Some scholars believe that the essence of estoppel is infringing, from the elements embodies the more apparent. Finally, the public interest, oral evidence, insurance coverage and non-waiver provisions summarized in four aspects of the principles of waiver and estoppel limits.The fourth part of China's insurance law principles of estoppel and waiver were assessment. First, the principle of utmost good faith review and waiver and estoppel, the relationship that the waiver and estoppel, the lower is the principle of utmost good faith. Then a comment on the revised paragraph 3 and 6 of Article 16 of insurance law, comparing the differences with the rules of other civil law countries, and making some pertinent suggestions.