On Several Theoretical Issues In Guarantee Insurance Contract

Guarantee insurance origins from developed US, afterwards, many countries of Western Europe and Japan set up one after another. Now many countries all handle the guarantee insurance business. Our country develops in recent years, the guarantee insurance concentrates in individual housing expense lends money and motor vehicle expends the loan domain, that adapt to needs of the expense with the national expansion .But, guarantee insurance business while fast development, also exposes many questions, such as exceeds the time limit seriously, the management cost high, many lawsuit cases, the additional compensation difficulty and so on.Above questions mainly have two aspect reasons, The first is the legislation flaw .Our country "Law of insurance" simply has not involved to the guarantee insurance contract besides the ninetieth definite property insurance business the fidelity insurance contract, "The People's Republic of China Law of insurance (Revision Suggestion Manuscript)" has not mentioned the guarantee insurance on September 2005 yet. Obviously the present legal laws and regulations lack the explicit limits and the standard for guarantee insurance contract. Next is as a result of the legislation flaw and the fundamental research lag, causes guarantee insurance contract disputes in the judicial practice, makes the nature of and deals also has many differences, has seriously affected the judges in hearing cases with relevant disputes, also affects greatly to the healthy development of guarantee insurance industry.Therefore, this article makes the guarantee insurance contract the research subject, has the representative guarantee insurance contract case take one piece as the starting point, use the history and the comparison research method, guaranty insurance is defined in this dissertation as a sort of insurance business operated by the insurer with similar guaranty function, should give the standard by the law of insurance.This article altogether divides into six parts, first from defining the nature of guaranty insurance contract, locates it one kind of property insurance contract. Next elaborated the guaranty insurance contract insured interest, the main body, the relations of the correlation contract and its legal application, finally elaborated the insured responsibility of guarantee insurance contract.First chapter, nature of guarantee insurance contract. In the theory and the practice domain, have three different theories about the guarantee insurance contract nature, respectively the guarantee said, the insured said, the union said. This chapter elaborated separately various theories viewpoints, and evaluation the disputes, defining the guarantee insurance contract the property insurance contract not the guarantee contract.Second chapter, insurable interest of the guarantee insurance contract. Research of the guarantee insurance contract insurable interest, has further been clear about the nature of guarantee insurance contract.Third chapter, subjects of guarantee insurance contract. Enumerated about the three different views of main subejects, and recognized the contract the main body respectively is: The insurance company, the policy holder (the insured) is a debtor, both are the contract litigants; The creditor is a beneficiary, is the contract sponsor, proposed the property insurance contract also may have the beneficiary; Elaborated the rights and obligations of various main bodies in guarantee insurance contract.Forth chapter, the relationship between guarantee insurance contract and the related contracts. Has been clear about the relations of tripartite agreement and the guarantee insurance contract.Next talks about the guarantee insurance contract take the foundation contract existence as a premise, therefore has the understanding of guarantee insurance contract in the practical realm and the theorists is the original foundation contract from the contract, regarding this viewpoint, the author does not approve of it. After analysis relationship between guarantee insurance contract and correlation congruent, further was clear about the legal application of guarantee insurance contract.Fifth chapter, guarantee insurance contract insurance liability. The guarantee insurance liability is the insurer the responsibility which undertakes based on the guarantee insurance contract. This chapter has made the exhaustive elaboration of the foundation the responsibility, responsibility scope and a special right - - compensation.The end, the author appealed the department should concerned the urgent demand of the practice which appears as soon as possible regarding the guarantee insurance contract correlation law standard, proposed should consummate the corresponding legal laws and regulations and strengthen individual credit system construction, by time better instructing the development of guarantee insurance business...