The Theory And The Application Of The Incontestabel Clause

Insurance is a system to disperse risk and provide protection. It's significant for stability and harmony of social life. However, with insurance industry development, the status gap between the insured party and insurer is growing, leading to interests imbalance, which affected the stable development of the insurance industry. So most countries have started to attach importance to protecting the interests of the insured and restricted the insurers to abuse their rights, in order to restore interests balance. The incontestable clause is a specific system to embody the above-mentioned value.The incontestable clause arises from the insurance practice of Common Law countries, having a positive impact on the insurance industry. Thus it has been recognized by statutory law, becoming a statutory provision. As a reference, Civil Law countries has stipulated the incontestable clause in their Insurance Law. In the same way, China's 2009 revised "Insurance Law" also stipulated this provision. However, the theory study of the incontestable clause was not a lot, and not very comprehensive and systematic either. The most study focused on the function to illustrate the importance of the incontestable clause. However, the function is only an outward manifestation of the system. The theoretical basis is the intrinsic foudation for the system to establish and be effective. Therefore, it is necessary to analyze the jurisprudence foudation of the incontestable clause to recognize and understand the incontestable clause. In addition, in our country, after "Insurance Law" provisions were promulgated, using basic theroy of the incontestable clause to analyze the provisions is basically blank, which is not helpful to make clear of the legislative intent, and has negative impact of application. Based on this, the jurisprudence foundation and application of the incontestable clause is the focus of this thesis.Specifically, addition to the introduction and the conclusion, the thesis is divided into three chapters: the first chapter is the general description of the incontestable clause, including two parts. The first part introduces the basic meaning of the incontestable clause. In this part, as some scholars didn't distinguish the incontestable clause from the waiver and estoppel system while analyzing the relevant provisions of the "Insurance Law", it is necessary to compare two systems and identify the difference. The second part describes the historical development of the incontestable clause, including how the incontestable clause come into existence, the provisions of various countries and regions, and its trends.Chapter II is the jurisprudence foundation of the incontestable clause. This chapter discusses the rationality and essentiality of the incontestable clause, from threes aspects of the principle of good faith, the order and security value, and the protection for the reasonable expectation of the policyholders and the insured. These three theory is not peculiar, but it has significance and specific characteristics in the field of insurance law. The incontestable clause is the embodiment of these significance and specific characteristics.Chapter III is the application of the incontestable clause. This part bases on the guidance of the jurisprudence foundation, learns from other countries'experience in the insurance practice, analyzes the relevant provisions of the"Insurance Law", and discusses applicable scope, conditions and restrictions comprehensively, in order to make the incontestable clause play a more active role in practice.In the end of the thesis, according to the foregoing analysis of the jurisprudence foudation and the application, draw a comprehensive summary view of this thesis as the conclusion.