A Study On The Applicable Law Of Insurance Law

Insurance is a shared risk assessments of economic loss compensation system.From the legal point of view, the insurance contract is a legal relationship, the insuredand the insurer’s agreement, policyholders pay premiums to the insurer when aninsured event occurs, the insurance premium paid to the insured or the beneficiaryhuman commercial law behavior.Insurance contracts are aleatory contract to perform largely dependent on thegood faith of both contracts. In the case of information asymmetry between theinsurance contract, because the subject matter of insurance policyholders to grasp thesituation more fully, faithfully fulfill the legal obligation to inform policyholdershave more stringent requirements. In order to protect the interests of the insuredperson, the law gives the insurer the right to terminate the contract under the insuredenjoys faithfully fulfill this obligation is not the case. As a professional to do theinsurers usually have strong economic strength and a strong professional knowledge,the insurer for immediate unilateral pursuit of economic interests, often use theirdominant position, the insured or the insured at a disadvantage among situation. Forexample, when entering into the insurance contract, the insurer is often the caseappears to simply be in the form of an audit of the insurance policy, the insurer or theinsured did not already know in the next to perform the obligations of the situation isstill covered, when an insured event occurs, the insurance people often refuse topolicyholders or insurance payment to the insured person is not truly fulfill thisobligation on the grounds. Over time, the insurance industry because the insurancecompany exclusions occurred " crisis of confidence " This situation not only to theinsurance company adversely affect the image, but also to a large extent hindered thehealthy development of the insurance industry.In order to prevent the legal right to terminate the contract because the insurerand the insured enjoys breach of this obligation, and further balance the interests of both the insurance contract can not be a defense under this rule will be generatedbackground. Originally appeared in the Anglo-American Life Insurance practice lawin the form of non-defense clause appears, therefore some domestic scholars directcall "incontestable clause." Subsequently, the rapid development of the insuranceindustry, non-statutory defenses gradually, is no longer simply a clause in the contract,the development is an integral part of the statute, especially in the insurance industryin developed countries, have been used very widely. Therefore, in my opinion, isdefined as "non-defense rule" seems more appropriate.In2009, China’s "Insurance Law " had a major revision, absorbing foreignadvanced legislative experience in the " Insurance Law" Article16introducedprovisions incontestable rules to require from the date of the establishment of aninsurance contract from more than two years, insurer shall not terminate the contract,the occurrence of an insured event, the insurer shall bear the payment or insurancepayment responsibility. This provision abuse by limiting the insurer to defend theright to refuse the right to terminate the contract payment, in order to achieve thepurpose of insurance, effective protection of the insured, the insured and thebeneficiary ’s right to maintain a balance between the interests of the parties to theinsurance contract.However, the author in the study relevant literature, had some doubts. Forexample: first, whether the rule applies only to non-defense in personal insurance,property insurance, or other types of insurance are also the same rules apply to non-defense? Second, do not apply the rule of non-defense situation exist? Third, whenthe insurance contract reinstated, non-defense when the defense during the ruleshould be starting? Fourth, incontestable rules of contract law and the right toterminate the right to revoke the existence of competing, what kind of relationshipbetween them?If these questions can not be effectively addressed, the theory can not effectivelyguide practice, judicial practice will inevitably bring a lot of insurance problems, sothat the rules may be an overreaction in practice, and may even lead to moral hazard in insurance activities. Because, I believe that it is necessary to defend our countrycan not be clearly defined rules further improve the relevant provisions, to make itmore workable. This paper attempts to make efforts to apply the rules for non-defenseresearch object, discrimination against non-defense rules explore concepts andtheories on China’s non-defense applies to the application of the rules will be resolvedone by one, on this basis, in order to pass their own analysis, put forward their ownsuggestions on improving China’s "Insurance Law" incontestable rules fornon-defense rules more reasonable suggestions.This paper is divided into five parts.The first part,"the definitions of incontestable rule law" the basic meaning ofthe non-defense rules were defined by combing incontestable rules of origin anddevelopment process, noting that the rules can not be bound by the insurer to defendthe right of cancellation, the protection of the insured Fangli Yi a specific rule.Currently, both the civil law or common law, most countries will not be a defensefor the insurance law rules of peremptory norms.The second part," the theoretical basis and value of incontestable rule law "from the principle of utmost good faith and security, order value incontestable ruleswere elaborated theoretical foundation. Meanwhile, the analysis reflects the value ofnon-defense rules, respectively, from safeguarding the interests of the insured, tosolve the contradiction between the two sides of information asymmetry insurance,limiting the insurer ’s rights abuse, and enhance consumer confidence in theinsurance company the insurance, maintenance, insurance financial function,maintain financial order aspects, describes the non-active role in defending the ruleand influence.The third part,"incontestable rule law in some countries and regions studied,"the author introduces the developed areas of the insurance industry can not defend therule of legislation, cited the United States, Germany, Taiwan, China legislation onnon-defense rules, the analysis presented in other countries or regional incontestablerules applicable exceptions. The fourth part," legislative defects of incontestable rule law in our country ",this part of the study focused onto the provisions of the rules can not defend thecontent analysis of the legislation can not defend our rules, introduced the scope ofnon-defense rules restrictions objects and starting contestable period, summarized theshortcomings of China’s Insurance Law incontestable rules exist.The fifth part,"to improve the rule of the incontestable rule law " and then onthe basis of learning the essence of the relevant national or regional legislation on thefurther development of the insurance industry with the actual situation of our country,put forward their views on improving China’s insurance law incontestable rules.