A Study On The Duty Of Disclosure In English Insurance Contract Law

In Britain law, there is a type of contract in which good faithseems particularly important. The obligation to totally announce allimportant facts exists in this kind of contract known as utmost goodfaith, and the contract of insurance is this kind of most typicalrepresentative of contracts exactly. The duty of disclosure isconsidered as key content of the utmost good faith contract. And itgradually becomes one of the most important obligatory norms of thelegal norm of the insurance in Anglo-American law system andcontinental law system. This thesis takes the system of the duty ofdisclosure in insurance contract of Britain as the original version ofresearch, seeks the emergence, the development and the orientation ofthis obligation in present insurance law in Britain, studies the basicmeaning and key elements of this obligation, goes on comparative lawanalysis with relevant legal insurance system of our country, andfinally tries to make the current regulations of our country perfectthrough the legislation. This thesis regards the system of the duty ofdisclosure in insurance contract of Britain as the basic research object,and applies legal hermeneutics, legal historiography, comparativejurisprudence and other research instruments in order to carry on deepand systematic analysis and research.Chapter One of this thesis mainly researches on the developmentvenation of the system of the duty of disclosure in insurance contractof Britain, and introduces this system from such three respects as theemergence, development and basic fixed position of this obligation inthe insurance law in Britain at present. Firstly, the thesis tries to lookfor the origin of this system established in Britain law, and seizestentatively the concrete content of the system of the duty of disclosurefrom the judgement. Later, we introduced Marine Insurance Act ofBritain, the statute law which has the milestone meaning, and relied onit to put up the basic content of the system of the duty of disclosure.Finally, considering case law tradition of Britain, with method of caseanalysis, we analyse emphatically two important cases in the end ofthe 20th century about the system of the duty of disclosure, namely"Star Sea"and "Merchant Continent". These two cases are thought togive new vigor and content to the system of the duty of disclosure. Thedevelopment of history shows, the duty of disclosure is no longer thatinitial extensive disclosure obligation which is required on the basis ofprimitive code of ethic. This system has strict connotation and scope ofapplication, and has reflected the perfect combination between the ideaof modern law of insurance and concrete legal norm.Chapter two of the thesis plans to carry on the key element toanalyses the system of the duty of disclosure from such respects asmisrepresentation, nondisclosure and material facts. In the course ofmaterial research, it regards British contract law as research toolsstrictly, and focuses on particular norms of the system of the duty ofdisclosure relative to general contract in insurance contract. Especiallyin the course of research on material fact, we introduced the keyconcept in the law of insurance contract in Britain, namely "decisiveinfluence"and "prudent insurer", attempt to expound the concept of"material fact", and lay the solid theoretical foundation in order toregard "material fact"in the third part of article as the core ofconstructing the system of the duty of disclosure in insurance law ofour country. Meanwhile, this chapter also analyses emphatically thelegal consequence and the means of legal relief after "the duty ofdisclosure"of insurance contract in Britain law is violated,distinguishes the right of declaring contract avoided from the right ofcompensation for damage with the tradition of typical common law ininsurance law, and defines respective conditions and ways to exerciseright.Chapter three of this thesis planed to regard comparativejurisprudence as the main research means, from the contents, thecourse of performance, form and legal consequence of violating theduty of disclosure and other respects to carry on systematicintroduction and reference. In case of researching on the system of theduty of disclosure in insurance contract of Britain in detail, this partrevealed the defect and oversight of systems relevant to insurance lawof our country, that current regulations of our country only regard theinsured's subjective psychological state as the main content of thesystem of the duty of disclosure, and divide it into two situations,namely "nonperformance of the duty of disclosure on purpose"and"nonperformance of the duty of disclosure in default". These twokinds of situations are different because of insured's subjective faultdegree, and cause different legal results. About the situation ofviolating the duty of disclosure on purpose, the insurer can exemptfrom the obligation to return insurance premium except terminatingthe contract and not bearing insured liability. And about the situationof violating the duty of disclosure in default, the insurer only canterminate the contract and not bearing insured liability. Currentinsurance law of our country takes the importance of disclosure asconcrete contents of the duty of disclosure, and adopts subjectivejudgement mode around the concept to construct the system of theduty of disclosure of our country. But because the party's subjectivepsychology is difficult to figure out, and there is not clear division intothe culpable negligence or slight fault in our country's current law inthe insured's fault degree, a series of questions in law operation haveemerged. According to the current situation of insurance legislation inour country, we think it is necessary that we use the system of the dutyof disclosure in insurance law of Britain for reference. First of all, thekey concept of material fact should be defined in insurance law of ourcountry, around which to construct the system of the duty of disclosurein our country. That "on purpose"or "in default"should not beregarded as the only standard of violating the duty of disclosure anylonger. Instead, the principle of unifying subjective and objectiveshould be adopted. Secondly, the course of the duty of disclosureshould be defined, and the system should be applied to specificsituation after the contract is formed. Finally, this part carried oncomparative analysis to the means of legal relief about violating theduty of disclosure, defined the insurer's right of terminating contractas main means of relief after the duty of disclosure is violated, andmade an analysis on the complementary mean of relief namely "refuseto return the insurance premium", researched on its rationality andlegal defect, further to offer modifying suggestion on the means oflegal relief.This thesis based on the system of the duty of disclosure inBritain law of insurance contract as the main research object, and theresearch tool and the research approach comply with Britain nationallaw. We hope to discover the particularity of the duty of disclosure ininsurance contract by comparing inside the system, and throughcomparing among systems transplant quintessence of this system to...