Study On The Disclosure Duty System

The basis and premise of creation and reasonably operation, which Insurance depends on, is that the insurer should correctly forecast and evaluate the peril state of the insurance objective, so that the insurance legislation of each country or territory stipulate the disclosure duty of the policy-holder as an important system. The development of the insurance contract law shows that strenthing the protection of the policy-holder has presented an growing trend and the slope to the policy-holder also has come to be the legislative tropism. This thesis will start with analyzing the conception of insurance disclosure duty, and then take apart the composing factors and the legal effect brought by violation of the disclosure duty via gradually relaxing the policy-holder's disclosure duty and restricting the insurer's rights, so as to demonstrating the reasonability and need for this trend. Finally, the author will table a proposal to perfecting the disclosure duty from different angles. There are four chapters in this thesis.The first chapter will explore the genesis, definition ,characteristics and creating basis of the disclosure duty, analyse the basic category of disclosure duty system. Based on all kinds of disclosure duty theories, the author think that the legislative principle of insurance disclosure duty is not"the utmost good faith principle"but the"honest and good faith principle", and the concrete practical principle is the benefit balance principle. The former has theoretic and instructive significance and the latter has the realistic meaning.The second chapter will analyze the historic change of insurance disclosure duty through the subjective, objective and form, dissertate the rationality of the change by adporting"subjective disclosure","material facts", and the"wrriten inquiring table"standard, to further prove the trend and realistic significance of gradually relaxing the disclosure duty in law.The third chapter will introduce the different measures to limit the insurer's rights on three stage when the contract to be conclued,the violation occurred,and the insurace accident taken place, emphasize the importance of the applicatio of these measures such as Incontestable Clause, Waiver, Estoppel, Period of Rescission, Proportionality principles to restrict the insurer's rights.The fourth chapter will bring forward suggestions on improving Chinese insurance law, nail down the conception of the scope of obligor and the time of disclosure, propose introducing the related advanced institutions of foreign countries in order to perfect Chinese insurance law. In the end, the author will put forward legislative proposal that the liability for violation cannot be simpliy decided by one factor but should consider the following three factors enough : subjective, objective and the causality between the violation and insurance accidents.