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On The Law Problem Comparison Of Multiple Insurance Contract Between The Mainland And Taiwan

Posted on:2008-04-26Degree:MasterType:Thesis
Country:ChinaCandidate:N LinFull Text:PDF
GTID:2166360215453156Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Double insurance, is called multiple insurance at the same time, which is defined as"Double insurance, namely contract act that several insurances is signed separately by an insurance applicant and several insurance underwriters for the same insurance interest and insurance accident". It is stipulated by Clause 41 of national Insurance Law that multiple insurance means the insurance of insurance contract signed by one insurance applicant and more than two insurance underwriters for the same insurance subject, insurance interest and accident. While it is stipulated by clause 225 of national Maritime Law that once multiple contracts are signed by one insurant and several underwriters for the same subject and accident, which makes the total amount insured exceed the value of insurance subject, the insurant can make claim for compensation, unless other contrary provisions in the contract, but the total compensations should not exceed damaged value of the insurance subject". Evidently, it adopts the limited sense of legislation. And it is stipulated in Clause 35 of Insurance Law of Taiwan, China, double insurance means the contract act that several insurances are signed with one insurance applicant and several underwriters for the same insurance interest and accident. As it is not stipulated evidently in insurance law of China and Taiwan that the necessary qualification is the insurance money should exceed insurance value, evidently, the broad sense of double insurance is adopted here, namely the double insurance is formed regardless of without reference to whether the total insurance money exceed insurance value. I think, the broad concept of double insurance can shows the value of double insurance and signification of double insurance system better, and the broad concept adopted in Insurance Law of mainland and Taiwan of China is very scientific and reasonable. So the concept should be insisted in the draft of Insurance Law newly amended. But the concept of double insurance in national Maritime Law is conflicted with Insurance Law Code, which will infect the operation of double insurance system in actual practice. For example, a double insurance case especially marine economic dispute, a solution will be determined by the concept of double insurance in Insurance Law, while another will come from Maritime Law. Thereby, randomization free ruling right of the judge is possible to exist in actual practice; also it is not convenient for operation. Secondly, the small defect seeming here will infect unity and preciseness of the whole legal system. Since China is a code country, the unity of system and preciseness of logic is the soul of law, the legislation case adopted here should be uniform, or limited sense, or broad sense, the provision stipulated back and fill is unscientific evidently. As Insurance Law is the special legislation for insurance rules, the regulations concerned in other departmental laws should look to it and adopt broad sense concept of double insurance. On this point, unity of concept in legislation of Taiwan sets a good example for us.For the application scope of multiple insurance, multiple insurance is stipulated in the terms of property insurance rather than general rules in accordance with national Insurance Law, so multiple insurance is only applicable for property insurance rather than personal insurance in legislation technology. While the multiple-insurance system is included in general rules in Taiwan, so confusion in application and interpretation is produced, also, the difference of opinions among legal experts is huge here. Most experts are negative about it, but they bring another opinion to split the difference, that double insurance is not applicable for personal insurance in principle, but for the neutral insurances with a characteristic of compensatory damages in injury insurance and health insurance, the double insurance should be applicable to avoid excessive compensation. So it is suspected to have careless omission in legislation in format arrangement of Insurance Law of Taiwan. But for its general structure, as it is located in general rules, it is a general provision for the subprovisions. Thereby, I suppose the provision of Taiwan Insurance Law affirms that double insurance can be applicable for all the insurances. While in national Insurance Law, double insurance is located in the terms of property insurance rather than general rules, in legislation technology, the double insurance is only applicable for property insurance rather than personal insurance. Compared with the legislation case of Taiwan, it is more reasonable and advanced from either legislation technology or theory to locate the double insurance in general rules.For the provision for notification obligation, when the insurance applicant signs insurance contract with several underwriters, both the parties should perform notification obligation, but what's the content of the obligation? It is stipulated by Clause 41.1 that the applicant of double insurance should inform each underwriter about the related situation. The related situation here should, in interpretation, include name and address of the applicant, insurance subject, insurance value, insurance premium, insurance money, scope of insurance liability, duration of insurance and payment of insurance money. While it is stipulated in Clause 36 of Taiwan Insurance Law the notification content is names of other underwriters and insurance money, namely the applicant should notify all the underwriters who form the double insurance. Name of other underwriters means names of other underwriters besides the one informed; while insurance money means the insurance money insured by other underwriters besides the one informed. The provision of Insurance Law of the Mainland is not so definite, and the content here is not so specific, by contrast, the embodiment provisions in Taiwan is more advisable. For the performing method of notice obligation, there is no concrete provision in the insurance laws of Taiwan and the Mainland. However, for the legal effects that disobeys notice obligation, there is no concrete provision in Insurance Law of the Mainland, and the provision of Taiwan Insurance Law making wholly invalid is supposed too rigorous. On this point, the operation in actual practice of insurance in Germany and Japan can be used for reference.As the sort of double insurance is not distinguished in national Insurance Law and Maritime Law, I suppose it is necessary to distinguish"goodwill double insurance"and"malignancy double insurance"to prescribe different legal effect; for the malignancy double insurance contract concluded by the applicant for unjust enrichment, since there is no provision in national Insurance Law and it is treated invalid in Taiwan, the provision in Taiwan can be used for reference during amending insurance law in our country. And there is large difference in provisions of compensatory liability of underwriter in double insurance, if it is necessary to amend and uniform, it is recommended to imitate the legislation case of Germany to adopt joint compensation system which protects the insurant more carefully, which can prevent non-interest of insurant due to failure of payment of the underwriter, and also avoid non-facilitation of insurant to claim payment to the underwriter.
Keywords/Search Tags:Comparison
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