The Study Of The Duty Of Telling The Truth In Insurance Law

The duty of telling the truth is an important part of the honesty and credit principle; it is the way in which the principle works in insurance law. Different points in this area exist in the two legal systems. In the objective condition there are three theories including causality theory, no causality theory, and the proportion theory. While, in the subjective condition there are two theories which are the unitary blame system and the dualistic blame system. Our insurance law is prone to the causality theory and the unitary blame system in the duty of telling the truth, however there are still leaks in the law items. This thesis discusses the duty of telling the truth in jurisprudence, the subjective and objective conditions, and the outcomes of breaking the law. The author points out some modificatory suggestions through discussing legislations of other countries. Generally, it is as follows:The first part introduces the juristic basis of the duty of telling the truth, that is the honesty and credit principle. Firstly, the author indicates the honesty and credit principle is the basis and protector of insurance actions through analyzing insurance actions. Based on this point, the importance and necessity of the duty of telling the truth are introduced. Secondly, both the insurer and the insured should perform the duties to realize the information balance, which the insurer and the insured are on the equal level. However, the insurance law of our country doesn't include the insurer, being unfair to the insured. Therefore, we should perfect it in legislation. Thirdly, the contents and the performance ways of the duty of telling the truth in other countries indicate the limitation and faintness of our law items in this area. There are no clear definitions of performance period and performance ways. These disadvantages hinder the development of our insurance law.In the second part, the author compares the Anglo-American legal system and Civil Law legal system in the necessary conditions of breaking the liability, and points out the advantages and defects of our insurance law. Furthermore, the author enumerates and discusses the legislations of breaking the liability of Anglo-American legal system, Civil Law legal system and China. Firstly, the author introduces the legislations about the objective conditions, and analyzes no causality theory, causality theory, proportion theory and Chinese legislations. No causality theory adheres to the honesty and credit principle, but it doesn't agree with the information balance principle. Causality theory protects the rights of the insured and insures, but it is so unfair to insurers that it can not be used in our life. Proportion theory has some leaks and can not be used either. Our legislation absorbs the advantages of all these theories, stipulating for different rules about the objective conditions on the base of the people's different subjective cases that have the liability. However, two conditions should be added. One is that the insured don't performance this duty without deliberation, without direct effect on the insurance accident. If insurers know the hidden fact, they will ask the insured to pay more premiums according to the information balance principle. Secondly, if the hidden fact belongs to the refusal insured, the insurers can dissolve the contract and refuse to pay the premiums without thinking the objective and subjective condition after the insurance accident happened. Secondly the author introduces the legislations about the subjective conditions. They are the dualistic blame system which is made up of the professional insurance and no-professional insurance, while the unitary blame system made up of the subjective theory and objective theory. The author analyzes the differences of the two legal systems in it, which indicates the theory that our insurance law should adapt and suggests lapse should be the serious lapse.The third part introduces the illegal consequences of breaking this liability: firstly, it indicates the consequences that the insured do not perform the liability deliberately, and discusses three theories in this aspect, which are amends theory, punishment theory and reward theory. The author implies the reward theory and punishment theory are more rational. Our insurance law items are based on the punishment theory. If the insured do not perform the liability deliberately without paying premium, they should give the insurer the right of claiming. Secondly, it introduces the condition incurred by lapse, and points out three problems: firstly, that the lapse has an important effect on the accident is a condition of dissolving contracts, but whether this condition has retroaction. Secondly, when the lapse has a little effect on the happening of the accident, the rules of our law are not fair to insurers, so we should perfect this aspect. Thirdly, the rules about premiums in lapse condition need perfect. We should perfect our law. Finally, the author indicates the condition that the insured do not perform the liability without deliberation; our law hasn't any articles in this condition.The fourth part concludes the opinions of writer and contributes some amendment to the insurance law. Firstly, we should enlarge the main part and the performance term of this liability in order to make the parties of contract to reach the information balance. Secondly, the subjective conditions should be limited in deliberation and serious lapse. The objective conditions should be perfected in two aspects. Thirdly, a new article about the condition that the insured don't perform the duty of telling truth without deliberation and lapse should be added.