Analysis And Proposals On Waiver Of China Insurance Law

Waiver is a powerful counter-defense mechanism to enforce the parties of policy to follow the principle of the faith and obligation to correct representations, and to counterbalance the unconscionable advantages the insurance companies have been taken. Not only can it protect the insured, but also it can help the insurer gain more profits in much longer time and change the opinion that it is easily to be the insured but difficult to get the premium. And to our excitement, the new amendment of China Insurance Law has been influenced by waiver. Even so, it still needs improving. This essay is divided into five chapters and all of them are on the theme of waiver.First chapter clarifies the definition of waiver. Definitions derived from Anglo-American Contracts Law, some researchers'opinions and Precedents of Insurance Law, and some jurists'theories from Continent are all listed and analyzed in this part. At the end of this chapter, the writer concludes her conception of waiver. The second chapter is on the distinction between waiver and other similar systems. Based on the stipulation of article 16 of China Insurance Law, we can not tell which specific system it is, so there is necessity to analyze the distinction. In this chapter, the writer illustrates the differences among contracts, indisputable clause and estoppel on the basis of Anglo-American Law and the opinions of judges and jurists, then consider the article 16 of China Insurance Law as stipulation of waiver.The third chapter is on the constitution of waiver and based on that list the conditions that satisfy the adoption of waiver. Waiver can only be composed by two conditions: the insurer being aware of the right and the expression of the meaning of waiver. The insurer being aware of the right is analyzed from two perspectives, and the expression is analyzed from three perspectives.The fourth chapter is on the limitations and exceptions to the limitations. Waiver of the insurer should be limited by these three Principles: Public Interests, Policy Limitation on Waiver and Parole Evidence. Also exceptions are derived from Public Interests and Policy Limitation to prevent the insurer from avoiding the application of law. So the scope of the application of waiver can be ascertained.The last chapter is on the concurrence of waiver and estoppel and the reasonable choice. First, clarify the constitutions and limitations of waiver on the basis of writer's definition; second, analyze the similarities and differences between waiver and estoppel; last, from the experience of the application of China Insurance Law and limitations, conclude the optional right of the parties of the contract.