Research On The Duty Of Disclosure Of Policy Holder In Insurance Law

The duty of disclosure comes from the early marine insurance. As a unique obligation in insurance contract, it is related to the interests of all parties in the insurance contract, and it has an important station in insurance law. With the science and technology progress, as well as the gradually-accumulated insurance experience, the insurer's knowledge of the object doesn't only relies on the insured's or policyholder's disclosure, but because of the huge business the insurer run and a wide variety of insurance item, it is impossible for the insurer to appraise every detail of the object all by himself. So the duty of disclosure is still the foundation to push the insurance industry to develop orderly and work reasonably.In order to define the duty of disclosure exactly, we should first clarify the conception, nature and theoretical basis of it. Though the meaning of the word"disclosure"is similar to the word"notice","explanation", there are obvious differences between the duty of disclosure and other duties (notice, explanation). From the nature, it is one kind of indirect duty, namely untrue duty; from the function, the obligation of the main function embodied in the utmost-good-faith principle which will bind the insured and save transaction costs. As for the theoretical basis of the duty of disclosure, there are many popular views, but many of them have their shortcomings because they just analyze this problem from one side. Considering from both systematical and technologic side, we should make sure that the legislative basis for duty of disclosure are the utmost good faith principle and balance principle.The duty of disclosure consist four parts in china insurance law, such as the subject of disclosure, the content and performance scope of disclosure duty, the constituent elements and legal effect of violation the disclosure obligation. In our insurance law, just the applicant should fulfill the duty to the insurer, and with the development of insurance theory and the legislative technology, we should extend the range of the obligation and the recipient. When the policyholder and the insured are not the same person, the disclosure obligator not only policyholder, but also the insured and policyholder's agent——insurance broker, and the relative to this obligation should include the insurance agent, insurer's salesman, and physical examination doctor. In addition, the existence period of disclosure duty, and that of the scope and content are regulated too simply in china insurance law, so this caused many disputes both in theory and practice area. Based on synthesis consideration to the present situation of our country insurance business and the benefit balance between the policyholder and the insurer, combined the general theory of civil law, especially the theory of contract law,and study from the advanced legislative experience of foreign countries to consummates the related rule about duty of disclosure. Making it clear that the existence period of disclosure obligation should be explained before the insurer agrees to the insurance contract, and establishing a strict principle of"the written inquiry"type, meanwhile adding the rule of exempting the duty of disclosure. To judge if the subject breaks the duty or not, it should consider both subjective and objective aspect. When the disclosure obligation part breaks the duty, China's insurance law only endows the insurer the right to relieve the contract. To relieve contract is the right belongs to insurer, he can choose to use it or not. When the insurer does not relieve the contract, the insurance law should give anther ways to protect his benefits.