On Enacting The Insurer's Duty To Investigate

In the practice of insurance, the insurer sometimes repudiates the compensation by making use of the insured's weakness, that is, he is ignorant of the knowledge on law and insurance. The main reason of the phenomenon above is negligence of legal system. It neglects an important fact that the insurer is on a good wicket in the dealing. The insurer is a career man for insurance and he is experienced in the area. He could evaluate the risk of more accurately. Therefore the duty to investigate should be legislated. The insurer ought to investigate the state of the insurance subject to a proper extent in order to balance the interests of these two parties, to enhance the rate that the insured obtains the compensation and to fulfill the contract properly. There is no explicit clauses on the duty to investigate in most countries's legislation. And few of scholars do research on this thesis. Some scholars apply themselves to alleviate the insured's duty of disclosure. However this is not a permanent way that could prevent the insurers from refusing to compensate. And it may bring new problems, that is, the insured disguises some crucial information about the insurance subject. Whereas the weakness of the solution above, some academicians put forward the theory on the duty to investigate. In the mainland of China no academicians make mention of"duty to investigate". Say nothing of monograph about it. Some of the scholars regard"duty to investigate"as"the principle of checking insurance contract cautiously". Nevertheless they do not systematize the theory of duty to investigate, not clarify the related ideas, not specify the functions. To some extent regarding duty to investigate as a principle impairs the effect of it. Due to the vacancy in theory and the need in practice, this article discuss enacting the duty to investigate from four points of view——definition, necessity, restriction and standardization.Part one of this paper is devoted to discuss the attributes of duty to investigate. Insurer's investigation should be regarded as a kind of duty, not right. Also the duty to investigate could not be replaced by the principle of checking insurance contract carefully or by confining the duty of disclosure. After the analysis of the attributes, we can define the duty to investigate as a kind of duty that in the course of making an agreement the insurer ought to investigate in his power to know more about the significant information, to evaluate and control the risk to the best of his ability, and to distribute the rights and duties in the insurance contract properly. The insurer cannot just asertain the matters in contract by the insured's disclosure.Part two of this paper focuses on the necessity to enact the duty to investigate. It explain the idea from two aspects. First, as the inner aspect of the contract, it makes for balancing the interests of the two parties of insurance contract, realizing the aim of the contract and lessening the entanglement. Second, as the outer aspect of the contract, it makes for getting the insureds more confident, improving the development of the insurance, dispersing the risk and stabilizing the social order.Part three discusses the restriction to enact the duty to investigate. Like the rights, any obligation is restrictive. And absolute duty will also do harm to the interests of the obligor. The duty to investigate could supply a gap of insured, make the duty of disclosure work well. After the defining the range of duty to investigate, I clarify the restriction to the duty.Part four illuminates the standardization of enacting the duty to investigate. By this time there are no related clauses on this duty in our positive law. It just exists in theory. Therefore it is a vacancy in legislation. In interrelated cases it is incidental to adjudge irrelevantly. So it is indispensable to enact the duty to investigate and standardize it. First, it is a pressing need to enact the duty to investigate. It is necessary to standardize the presupposition, the model of action and the consequence. Second, it is possible to standardize the duty to investigate. Third, the contents of standardizing this duty are the occasion to investigate, the way of investigation, the payment of the cost, the consequence and onus proband.Enacting the duty to investigate caters for the development of technology and the balance of the parties'abilities. It is necessary to restrain the insurer's abuse of rights. Though the duty to investigate makes the insurer afford heavier burdens, the range of this duty is restrictive and it makes the insurer contract more carefully. It improves the standardization of insurance. Enacting the duty to investigate could escape from insured's excessively heavy burdens of disclosuring the risky state of insurance subject. The arrangement of system about duty to investigate makes the parties of insurance contract cooperate to get to the bottom of the insurance subject and to asertain the contents of the contract fairly. It could also realize the principle of"utmost good faith", encourage the public to take part in the insurance actively, disperse the risk further and keep the society in good order. In short the duty to investigate ought to be validated in positive law in order to keep it exercisable. It is necessary, restrictive and canonical. It is indispensable to enact the duty in theory and in practice. The insurance play an important role in modern society and economy. We expect that the issues related to duty to investigate will be defined in positive law, the blankness in legislation will be filled up and the insurance will operate better.