Research On Several Problems In National Law Of Insurer Explanation Obligation

Insurance contract is a kind of accidental contract. Its character decides that in the meantime the parties in the insurance act concludes insurance contract, they should not only possess common good faith, but also burden specific Information-Reveal obligation, which concretely embodies informing obligation from policyholder and explanation obligation from insurer. Though, in many countries insurer's explanation obligation is not stipulated in legislation, at present insurance business in our country is still not developed, and to insurance knowledge the public haven't been enough to know generally, insurer's explanation obligation system has been established in legislation on national Law of Insurance. This institutional establishment has certain theory of law basis and reality significance. First of all, insurer's explanation obligation can make up the losses of mutual belief between both parties, meanwhile it can prevent the parties from subjective fault and mutual cheat in order to maintain the safety of insurance bargain, ensure insurance business to go on run and orderly development, and embody principle of utmost good faith on law of insurance. Next, the understanding of insurance contract to policyholder is depended on insurer's explanation of insurance contract clause content and law consequence, therefore, insurer's explanation obligation not only has active meaning to balance the position of both sides, but also ensure insurance contract which embodies both sides desire. What's more, main insurance contract clause and basic content are usually drawn up by insurer in advance, and most of policyholders are short of professional insurance knowledge, in order to provide benefit between balanceable parties, ensure policyholder to be able to conclude a treaty contract under full understanding insurance contract, maintain insurance bargain fair and justice, the insurer's explanation obligation system should be built up. It's not only helpful to settle both parties information inequality, but also be able to embody the protection to policyholder in insurance system. Therefore, it is necessary, scientific and advanced to stipulate insurer's explanation obligation in national Law of Insurance.However, the stipulation of insurer's explanation obligation in our national Law of Insurance is still insufficient perfect, and too much principle and abstract. And to insurer it has no definite behavior and judge standard to fulfill explanation obligation. The content of Insurer's explanation obligation should include the most basic content of insurance contract, the terms in insures contract, inquires related to insurance contract for policyholder and definitely explanation of legal exemption clause. There into, legal exemption clause is a center of insurer's explanation obligation because legal exemption clause involves insurer's excluded liability which is directly related to the range of compensative duty, and plays the decisive role for policyholder. In addition, insurer needn't to explain the special contract clause and some clauses which can be understood by ordinary people. The fulfilling degree of Insurer's explanation obligation should be judged by people who possess common knowledge level and intellective reasonable amateur standard except insurance expert, so that the interest of both parties can balance effectively and give consideration to insurance principle of fair and efficiency.Besides, in the Law of Insurance there is no definite stipulation of the law consequence and legal liability in which insurer acts contrary to explanation obligation. In order to settle all sorts of contrary to explanation obligation by insurance which will lead to legal questions in which policyholder suffer in lawful rights and interests, the most effective method is judicial regulation, that is the application to the principle of favorable interpretation. Judicial regulation gives a judge more ruling right, which can make a judge conduct regulation by law and legal precedent to explain the content of format clause strictly and decide which are invalid or rescissory, and forbid that this kind of clause is applied in analogous contract. Just as legislative and administrative regulation, judicial regulation limits and administers main body of format contract and its behavioral by administration of law. It is also code made for market justly, healthy development. But by comparison, judicial regulation possesses more direct, eventual and lasting advantage. However, legislative regulation can not protect the right and interest of policyholder in time, and administration regulation is operated hardly, so that it becomes the most original, most ultimate, the most effective regulation mode on format clause effectiveness. In view of legislative helplessness for Law of insurance, judicial regulation is very important to insurer's explanation obligation, that is a research on the principle of favorable interpretation.Because of policyholder compared to insurer, either the negotiated ability when insurance contract clauses are concluded, or relative terminological intelligence on insurance contract clauses, or the litigated ability when insurance contract clauses are interpreted is policyholder in the disadvantage position. The principle of favorable interpretation can supervise insurer to fulfill explanation obligation really and accurately, otherwise, judicature can compel to correct both sides with unbalance right and obligation relation, maintains lawful rights and interests in insurance contract for policyholder who is in disadvantage position, and supply a kind of following judicatory remedy mechanism, so that law of fail and justice can be accomplished. In national Law of Insurance there are some relative stipulations on the application to the principle of favorable interpretation. Being quite rough they lead to applicative disorder easily in judicial practice. Therefore, the principle in every aspect should be strictly standardized.For regulating addition of format contract, the principle of favorable interpretation is set as a special interpretation principle in insurance contract with the features of auxiliary and lag. In the condition that insurance contract clause can't be explained by other interpretation principles and ambiguity in insurance contract clause causes directly that real intention can't be understood by the both parties, the principle of favorable interpretation can be used in the priority. But in the following situations the principle of favorable interpretation isn't used. Firstly, ambiguity can be understood after insurer's explain, or it is already definite by judicial interpretation; Secondly, in special insurance contract clause, policyholder as well as insurer has the equal right to draw up insurance contract clause, so the clause is a product negotiated by the both parties who have the same position and take charge of it; Thirdly, if a policyholder is a corporation even a insurance company who has knowledge on insurance profession, knows insurance business well, possesses certain economy strength and negotiate ability, his is no longer in advantage position. The principle of favorable interpretation isn't suitable for him. For this reason, the application of the principle of favorable interpretation has strict requirement, which must be standardized in order that protect the legal right and interest of policyholders in insurance contract clause who are in the disadvantage position, otherwise, it is just overcorrecting.