Research On The Establishment Of The System Of Waiver And Estoppel In PRC Insurance Law

Based on the concepts and meanings of Waiver and Estoppel in insurance law, this paper introduces the emergence and development of principles of Waiver and Estoppel in Common Law, compares them with the similar legal system in Civil Law, and investigates the nomological basis of Waiver and Estoppel herein. By means of analyzing the typical cases, this paper attempts to establish exercisable Waiver and Estoppel system in PRC insurance law. This paper falls into 4 parts as follows:Part I, we clarify two mistakes firstly, and consider that Estoppel is not the result of Waiver and Waiver and Estoppel can only apply to the insurer. After comparing with several theories, we specify the definitions of Waiver and Estoppel. Furthermore, the discrepancy and relation between Waiver and Estoppel are also discussed in detail.Part II, after introducing the emergence and development of principles of Waiver and Estoppel in Common Law, and comparing with the similar legal system in Civil Law, we conclude that the decline and self-amendment of consideration theory shall be the theory basis of the system of Waiver and Estoppel's emergence in Common Law. Meanwhile, the conceptions of justice and protecting the safety of trading embodied Good Faith, and which makes importing the system of Waiver and Estoppel to Civil Law countries more possible.Part III, the discrepancy between Incontestable Clause in PRC Insurance Law and the system of Waiver and Estoppel is discussed firstly and we consider that there are no regulations concerning Waiver and Estoppel in PRC Insurance Law. The difficulty to apply the principal of Utmost Good Faith and the requirement to systemize it supply theory supports to importing the system of Waiver and Estoppel to China. And practical supports are supplied by large amount cases about the insurers'abusing the right to terminate the contract and the right to protest.Part IV, on the basis of protecting the insured and the applicant's legitimate interests, this paper attempts to establish the system of Waiver and Estoppel by analyzing the material requirements and applicable conditions of which. On the other hand, to balance interests of insurance contract parties and promote a healthy development of insurance industry, the restriction on applying Waiver and Estoppel is discussed in this part and we also put our attentions on the legal consequence of insurance agent's Waiver and Estoppel behaviors specially.