Legislative Research On Guarantee Insurance

The guarantee insurance is signed by the insurer and the applicant, when the applicant cannot fulfill the duty to the insured, and makes the insured have an economic loss, the insurer will undertake the responsibility of compensating the insured's loss according to the guarantee insurance contract. Guarantee insurance was first produced in the United States, and then in Western Europe, Japan and other countries also carried out one after another, it is the result of commercial credit and bank credit generalization, the result of the market economy reach to a certain degree of frequent moral crisis, and the result of making up for the function of the guarantee system.In overseas, guarantee insurance has a great of varieties, it has developed to a quite mature degree, not only insurance, but also some administration guarantee insurance and judicial guarantees insurance. The overseas guarantee insurance's development played a positive role to the economic development and the social stability, but the development path of guarantee insurance is still bumpy in our country. Even though the People's Insurance Company of China and so on have carried out guarantee insurance, and the types seems to have many, but the actual truth was that each insurance company's loss ratio is very high, the related guarantee insurance's disputes emerged one after another .This condition causes some insurance companies have to terminate the guarantee insurance service.The most fundamental reason for that is the lacking of clear legislative guidance, there are many kinds of theories about the guarantee insurance's concept and nature. Even the China Insurance Regulatory Commission and the Supreme People's Court made different definitions on guarantee insurance, which will further enhance people's confusion about guarantee insurance, and also increased the confusion of law application in the judicial trial .The United States, Britain, France, Japan are the countries whose guarantee insurance carries out very good, the most important reason of why these countries carries out quite good is that the legislation about guarantee insurance is comparatively perfect, but our country's legislation of guarantee insurance is very weak. In our country, the"Guarantee Law", and the present"Insurance Law"do not have the regulation about guarantee insurance, since the launch of guarantee insurance ,there only have some related departments issued some lower level of documents, such as"gives a written reply to a subordinate","the letter in reply","the notice"and so on, these documents' legal effect are low, moreover, the documents are not in harmony with each other. For these reasons, the public feel puzzled when they come across the guarantee insurance disputes, and because of the almost lacking of law, the court feel confused when handling this kind of disputes, just only can make a judge according to the understanding of oneself. Although our country'newest revision"Insurance Law"had stipulated that the guarantee insurance belongs to the property insurance , but the law still had not stipulated some actual contents about guarantee insurance, this evidently does not accord with our country's call includes the contract guarantee insurance, the honest guarantee of constructing a society in which the government acts by law. This proves that the legislation about guarantee insurance in our country is very necessary, this kind of necessity is because the practice demand, the guarantee insurance has good social functions and our country was almost still at the blank condition about guarantee insurance legislation. Besides, the risk of guarantee insurance had the insurability, the insured had the insurance interest, the guarantee insurance had a huge promotion effect on society, the guarantee insurance practice urgent looking forward to guarantee insurance legislation, our country's legislative technology has come to a relative mature degree, and the overseas guarantee insurance legislation may provide reference, from these six aspects we can see that the legislation of guarantee insurance in our country has the feasibility.In the synthesis, the author makes a tentative plan to guarantee insurance's legislative framework in our country, and conceives that the framework should include the following several aspects on guarantee insurance legislation in the future, the contents are: Guarantee insurance's connotation and the applicable law, the litigant and the relative of guarantee insurance contract ,the responsibility scope of guarantee insurance, the insurer's quality standard and their independent responsibility, the rights and the voluntaries of applicant , the insured and insurer, the insurer's right of subrogation about the important elements of composition and exertion, and to clear up the relationship between cooperative agreement and insurance contract and so on.