Research On The Duty Of Disclosure In Insurance Law

The duty of disclosure comes from the early marine insurance. Over two hundreds ago, the creator of the duty of disclosure Mansfield think:"Insurance contract is a kind of aleatory contract,the specific facts of evaluating the danger mostly be known by the insured, the insurer relies on the insured's statement and believe that the insured has not reserved anything that he knows. If the reservation of the insured induces the insurer to believe a kind of condition does not exist, and makes the wrong risk evaluation relying on this. Reserving this condition is an act of fraud, thus the policy is invalid."In view of this, the Conceptual foundation of establishing the duty of disclosure of Mansfield is"the presumption that the insured understand the specific fact of evaluating risk better", the object is always in policy holder or under the insured's control. They are the clearest of the relevant dangerous fact, and therefore, the insured has the duty to disclose the dangerous condition of the object.With the science and technology progress, the ability of collecting information has been improved evidently; The degree of asymmetry of dangerous information has gradually declined, in other words, the insurer is not ignorant to the dangerous condition and fact of insurance superscript like the early time marine insurer, he only relies on the policy holder or the insured's disclosure to appraise risk. Although there are a lot of disputes on the existing or not for the duty of disclosure among the scholars, on the practical level, the insurance law of all countries have established the system, and the system is intrinsic in the insurance contract law, is the precondition of reasonable operation of insurance industry, and for the country like ours whose legislation is not so developed is more necessary. Then how to understand the system correctly? How to reestablish the system to adapt the social change? With these questions, this article takes "the summarizations of the duty of disclosure system --the research to fulfillments of the duty of disclosure system—the consequence violating the duty of disclosure system " as the primary line, using comparison analytic method, economics analytic method to study the duty of disclosure system systematically. The full text is divided into three chapters altogether.The first chapter is about theory basis of the duty of disclosure . Firstly, the text discusses the history of the duty of disclosure and gets a conclusion that the historical conditions of early marine insurance is the objective condition of the growth of the duty of disclosure ; concluding that the insurer understands the important fact clearly is the subjective cognitive precondition of the forming of the duty of disclosure . Then, the text gives a limitation to the system's meaning and extension, because"disclosure"and explanation, notice, guarantee has the close meaning ,so this text here firstly nails down the meaning of the duty of disclosure, then tells the differences between the duty of disclosure and other duties. Finally, analyzes the basis of the duty of disclosure, through analyzing basis of the duty from the angle of economics and law, reached a conclusion: the theory of principle of faith and credit is the law basis of system and the law source of the duty of policy holder; presumption of danger is the necessary explanation of the exist of the duty of disclosure and the economic theory basis of the duty of disclosure for the policy holder. The author thinks that only by combining both of them ,can we fully explain the theoretical basis of the duty of disclosure with"the concept of goodwill and balance".The second chapter focuses on fulfillment of the duty of disclosure. This chapter solved the question"type of the duty".This part researches and analyzes that the relevant provisions about the duty of disclosure in Insurance Law causes controversy and brings about the problems in practice .For the specific rules such as fulfilling person, period, ways, scope and exemption of the duty of disclosure, respectively searching for support of related legislation and doctrine from mainland law system and Anglo-American law system, on the basis of which putting forward my point of view about perfecting relevant law and rule of the duty of disclosure. Basic opinion is: based on China's condition of insurance industry and insurance law and the consideration of the protection of the interests'balance of both the insured and insurers, learning from foreign advanced legislative experience, perfecting relevant specific provision of the fulfillment of the duty of disclosure system, clearing the people of the duty of disclosure and their relative; add the provisions on fulfillment of duty of disclosure when after-rehabilitation efficiency, re-contract, modification and make reinsurance contract; to perfect the fulfilling ways of disclosure duty, determine to use the enquiry and disclosure mode in the non-marine insurance, and use the disclosure infinitely mode in marine insurance; to specify that disclosure person must adopt the way of written form, to establish the real"written enquiry and disclosure"mode; to perfect the specifications about disclosure scope, especially the criteria to judge the important matter. About this, the text discussed as the key point, and chooses the criteria of sense policy-holder among the four criteria (i.e. specific policy-holder, specific insurer, prudential insurer, sense policy-holder), because"the criteria of sense policy-holder"can help to reduce the difficulty of providing the evidence, to avoid expanding the disclosure scope infinitely, to guarantee the safety of transaction through the way making the insured rely on the basic requirement of faith and credit to fulfill his duty. Then, the text discusses the criteria to judge the degree of effecting important matters in our country's insurance and makes the research to the rules having known and needing to know that have an influence on disclosure scope. Finally, the text specifies the exemption rules of disclosure duty, definitely take"items involving the insurer's waiver, items that the insurer has known or should know, facts reducing the danger"as the reason for exempting the duty of disclosure of policy-holder or the insured.The third chapter analyzes the legal result violating the duty of disclosure. This chapter analyzes the condition for insurer to terminate combining the two law system pertaining to the system of violating the duty of disclosure and that of preventing the insurer to terminate in Anglo-American law system: one is the fault attributed to the person having disclosure duty; the other is the conduct attributed to the person's unreal disclosure. At the same time, disclosing the flaw and oversight of relevant provisions of our country insurance law, our country actual provisions only focus on subjective psychology of the insured under the insured intently disguise the fact, and ignoring the hiding fact of the insured whether is important and relation of cause and effect related to occurrence of insurance risk. Moreover, our country actual Insurance Law has no provisions for exercising period of rescinding right and keeping insurer from exercising reason of rescinding right, which is unfair for the insured. Therefore, author advocated that repairing legislative loophole and perfecting relevant provisions under the guidance of the concept of"interests balance". Firstly, thinking person of the duty of disclosure violating subjective psychological condition of the duty of disclosure as limitation of intent or over defect. Secondly, according to different conditions respectively making provisions after occurrence of insurance accident that if untruthfully item is the insurer refuses to insure, because the item was originally a elements of preconditions whether the insurer decide to accept insurance, insurers should be given the right to rescind contract, no matter whether insurance accident occurs and whether the accident has relation with this item. If untruthfully item belongs to the insurer adds the expense to insure, after the occurrence of insurance accident, if untruthfully item and the insurance accident does not have the relation of cause and effect, the insurer can't rescind contract and exempted from the payment of insurable premium ,but may additionally receive the insurance premium. Thirdly, adding provisions that insurers exercise exclusion period of rescinding right.The thesis is concluded with some suggestions for perfecting our country the duty of disclosure system on the basis of summarizing the entire article.