Study Of Several Questions On The Duty Of Disclosure In Insurance

The duty of disclosure was considered as key content of insurancelaw.,it was one of special systems founded in the basis of maxims of equitylaw. This ancient system was firstly put up by Britain magistrate Mansfieldin cases, and during several hundreds of years, it gradually become one ofthe most important obligatory norms of the legal norm of the insurance inAnglo-American law system and continental law system. In debt law, therewas a type of contract in which good faith seemed particularly important.The obligation to totally announce all important facts existed in this kind ofcontract known as utmost good faith, and the contract of insurance was thiskind of most typical representative of contracts exactly.System of duty of disclosure of our country was mainly embodied inNo.17 and No.24 clause of insurance law and No.222 and 223 clause ofmarine law. Since insurance law of our country was executed, thereappeared lots of disputes about duty of disclosure, its defects in judicatorygrew more and more with social development, which made people noticethat there were many defects and lacks in present law of insurance. Therewere still lots of blur of thesis and lacks of legislation, therefore, this lawmay be modified and improved by us immediately.There were a great many questions, but in this article, I will illuminatejust three questions, which originated from my study to system of duty ofdisclosure. These three questions were requirement of constitution of duty ofdisclosure, scope of duty of disclosure and remedy of violating duty ofdisclosure. Through study to these three questions in this article, I wish tomodify and improve these three questions.In order to seek essence of any system, we must depend on study tosocial economical and technical circumstance, because it had deeply lootedin social conditions. This ancient system originated from Britain marineinsurance law. And it had been prospering in English during severalcenturies. It was founded by 'marine insurance draft' edited by Britainfamous magistrate Mansfield and Britain Marine Insurance Act . And todayit became a mature system. Chapter one in this article mainly appliedmethodology of legal historiography to research the course of appearance,development and variation of system of duty of disclosure, and concludedthree basic value orientation suitable to three questions above wanted tosolve by us. Three basic value orientation were such contents below in turn.Firstly, it was such basic value orientation that requirement of constitutionof duty of disclosure developed with the return of traditional doctrine ofobjectivity;Secondly, it was such basic value orientation that the scope ofduty of disclosure developed from traditional doctrine of unlimited duty todoctrine of limited duty;Thirdly, it was such basic value orientation thatremedy of violating duty of disclosure developed from traditionalinvalidated doctrine to doctrine of releasing contract.These three basic value orientation did not mean that there were onlythree value orientation. Perhaps they were not mostly main or overwhelmingones but ones concluded by us in usual study to this question according tothree questions above wanted to solve today. They were groped andconcluded by people during several hundreds of years. They deeply rootedin social economical and technical conditions. They responded essence andtrue intention of duty of disclosure, which did good to modification andimprovement of our present legislation ultimately.Chapter from two to four in this article mainly applied methodology ofcomparative jurisprudence to research these three questions. Insurance lawof our country took both Anglo-American law system and continental lawsystem. It took insurance provisions of Anglo-American in insurance moand,it was the result of study of analysis of comparative jurisprudence. In theseconditions, study of comparative jurisprudence did more good toenhancement of legislation and modification of legal systems. In manycountries, true system of duty of disclosure was illuminated in Britain law ofcases in 18th century. And later it was truly established by Marine InsuranceAct of Britain in 1906 that made many great achievements.During the course of historical development of system of duty ofdisclosure, this article analyze these three basic value orientation to seekhelp and benefit to our country, comparative with other advanced countriesespecially Britain. Therefore, this article regarded Britain insurance law astarget and wanted to seek the essence of these three questions comparativewith relevant system one another.Applied methodology of legal historiography in chapter one andcomparative jurisprudence in chapter two to four, I put up some acts ofmodification and improvement to these three questions in last part in thisarticle. They were those below.Firstly, in the question of requirement of constitution of duty ofdisclosure, we may insist on norm of doctrine of objectivity and repealtraditional fault principle. We may improve No.17 provision in Insurancelaw, which need deliberate intention or fault as subjective requirement ofconstitution. When conditions of deliberate intention happened, it should beadjusted by Contract law, applied to mechanism of 'fraud'. When conditionsof fault happened, it should be adjusted by Contract law, applied tomechanism of revocable contract.Secondly, in the question of the scope of duty of disclosure, we maygo on insisting on traditional doctrine of limited duty of disclosure. Aboutwhat belonged to the scope of duty of disclosure? What norm was in thescope of duty? We should attempt to introduce the concept of'materialfact'of Anglo-American law system . Meanwhile, we should attempt tointroduce the concept of 'prudent insurer' as the norm of scope. Besides, wemay make clear several exceptional conditions of 'material fact'.Thirdly, in the question of remedy of violating duty of disclosure, wemay go on insisting on traditional doctrine of releasing contract and solvedifficulty of therapy. We should differentiate between revocable rights andreleasing rights. And we may take mechanism of revocable rights. Weshould repeal present provision that the insurer refuse to return premiumwhen conditions of deliberate intention happened.