The Nature Of The Beneficial Right

There is much irrationality in the stipulation concerning the insurance beneficial right in the current law of insurance, which, apart from restricting the further spiritual development and the vitality of insurance notion to a certain extent, has caused many unnecessary disputes in the actual practice of insurance affairs and has blocked the sound development of the cause of insurance. Therefore, the irrationality results in the polemics on the insurance beneficial right in the insurance academic circles. In order to make a comprehensive and penetrating analysis of the insurance beneficial right, on the basis of the nature of the insurance beneficial right, this text try to deals with the general theory of the insurance beneficial right. Meanwhile, expressing her opinions on the current legislation of the law of insurance, the author puts forwards some proposals, tries her utmost to bring the relevant stipulation concerning the insurance beneficial right and his beneficial right into perfection and makes it scientifically and rigorously. The article is divided into 4 parts.First Section, Brief account of the insurance beneficial rightFirstly, there are three types of definition of the insurance beneficial right .This article is on the basis of the narrow sense of the beneficial right which should be defined as the right to accept the payment on the death of the insured, which can not be enjoyed by the insured but by the designated or legal beneficiary. Secondly, the author indicates that the validity of the insurance beneficial right is based upon the contract, which is not inherited from the insured. Therefore the insurance beneficial right belongs to inherent right. At last, it is pointed out the theoretical and realistic meanings to study the beneficial right. The beneficial is obliged who has the right to life insurance contract, which concerns the objective, moral trend and invaluable judgment. In the meantime, there are many problems in the practices, which want us to have a in-depth study to the beneficial right in order to make the insurance can perfect.Second Section, The general theoretical analysis of the nature of insurance beneficial right, which is also the main content of this article.There are many different views about the nature, and exists different understanding in Common law and Civil law. While in Civil law, it is originated from the nature of civil law. The third party interest's contract is the legal principle presence foundation of insurance beneficial right. The benefit of third party is a very important system in modem society. As a exception of the doctrine of the privities of contract, it is accord with the contracting parties'intention and the seeking of efficiency. Moreover, it makes function to protect the third pasties' believing. Since recent times, the countries of Civil law acknowledged the third party interests'contract in their civil law. Insurance contract is a kind of typical third party interest's contract. This article studies the nature of insurance beneficial right on the base of that the beneficial owns the beneficial right, because of the third party interests'contract. And in this article, the author mainly analyze these three sayings about the nature of insurance beneficial right: property right, request right and expectation rightDifferent from Civil law, it is settled from Trust Theory in the Common law. Trust is a legal devise deriving from England in the Middle Ages in order to transferred manage property. Because of strict restriction of trust which is not accord with the flying developing of the insurance. The insurance establish special legislation about insurance beneficial right to protect beneficiary. Trust's separation of ownership theory is the distinctive characteristics of the civil law. The legal relations of the trust include three parties concerned: consignor, bailee and beneficiary among whom the beneficiary is in the core position. The legal right of possessions held by trustee while the beneficial own the equitable right, which is called beneficial right. once the legal relations of the trust is established, the bailee has the right to administrate and disposition the property as his own, but the profit made by the property is owned by beneficial. This is the famous Trust's separation of ownership theory which is the trust's chief characteristic. Thus in English law, the beneficial own the equitable right and the nature of the insurance beneficial right in express trust is property right in English property law.Third Section, The concrete analysis of the nature of insurance beneficial right.In light of trust's separation of ownership theory that conflicts with tradition sole ownership theory in the China law system, and China belongs to the Civil law system. So our analysis on the nature of the beneficial right is based upon the civil theory. After a concrete analysis of the nature of the insurance beneficial right, the author indicates that the qualitative analysis of the nature of insurance beneficial right should be divided in different circumstances and different stages. As our known, the nature of insurance beneficial right is property right, and request right after the insurance accident occurs. But, what the nature of the beneficial right, before the insurance accident occurs? We divide it into two circumstances to analyze. Firstly, we consider the first circumstance, that the position of the beneficial has already be ensured, when the insurer and the insured has abandoned the disposition, and the beneficial could obtain the beneficial, once the beneficial is still alive and hasn't lost the qualification, when the insurance accident happened. The beneficial right has partial factor of the expectation right, but it can't be transferred freely, which doesn't coincide with the second standard of the expectation right, which has the necessarily to be protected. So the author considers the beneficial enjoys only the exceptive right, rather the expectation right here. Secondly, the insurer and the insured could change the beneficial at any moment, which means the beneficial hasn't acquire indemnify of the insurance law and doesn't correspond with the first criteria of the expectation right, that be protected by the law, when the disposition is retained by the insurer and the insured. Thus the beneficial also enjoys only the exceptive right, rather the expectation right under this circumstance.In short, what the insurance beneficiary enjoys is only the exceptive right before the insurance accident occurs, and it is not until the insurance accident occurs that he does enjoy the actual claim.In the 4`h part I mainly focus on the comparison between beneficiary rights and other rights. Insurance beneficiary right, Trust beneficiary and heritage are different things. I lay emphasis on the different of insurance beneficiary right and heritage. Furthermore, the author analyzes the questions, which exist in these aspects, and try to put forward the modification.