On The Fulfillment Of The Obligation Of The Applicant

The topic of this thesis is introduced through the following several Chapters. Discussion in Chapter One is according to the needs of actual legal practice, that is the core issue of the dispute—whether the applicants have fulfilled the truthfully informing obligation. Chapter Two specified certain provisions in current insurance law of China (insurance law published in2009) regarding applicant’s truthfully informing obligation. Stipulations on many aspects are too rough and not detailed such as subject, time, and ways of fulfilling the applicant’s truthfully informing obligation. In order to solve these problems, China’s relevant authorities should make stipulations on such issues more detailed. In Chapter Three, based on the two aspects as we stated earlier, one is the practical needs and the other is the legislative defects, we should put forward countermeasures and proposals so as to deal with these problems. Thus I will introduce how to better fulfill applicant’s truthfully informing obligation from four perspectives. The first perspective is about the legislation changes of China’s insurance law. All the legislation changes are listed below from the earliest one, Economic Contract Law of the People’s Republic of China, dated back to1981, to the new insurance law (in the year of2009) up to today. While making a induction from these changes, I highlight the legal inadequacy regarding applicant’s truthfully informing obligation as well as affirming its achievements. The second perspective is about the subject of fulfilling the applicant’s truthfully informing obligation. It mainly defines that whether the subject of fulfilling the applicant’s truthfully informing obligation is the applicant alone as stipulated in China’s law, or it includes both the applicant and the insured, or it is applicant according to the rule, and the insured as special cases (that is the proviso situation as mentioned). The third perspective is about the time of fulfilling the applicant’s truthfully informing obligation, particularly about the deadline of the truthfully informing obligation. It will specify that whether this deadline be calculated from the time when the insurer received the deposit premium or the time when the insurer issued a formal insurance policy or other insurance certificates. The fourth perspective is about the ways of fulfilling the applicant’s truthfully informing obligation. Here we will analyze whether it is unlimited informing or limited informing. In the case of limited informing, whether the insurer can only use the form of written enquiries, or both the form of written and verbal enquiries, or that the written enquiries is according to the rule and the verbal enquiries is taken as special cases. Meanwhile I also discussed how to assign the burden of proof concerning the content of the verbal enquiries. In Chapter Four, through reference of the foreign experience, judicial practice in China and views and suggestions of the scholars concerning this issue, I will use a number of comparisons in the analysis of the three issues described above (for instance, I will take views of people in other countries and in regions of Taiwan and Macau regarding this issue, take views from the perspective of judicial practice in China as well as introduce scholars’views on these issues), so as to get the standard of the fulfilling of applicant’s truthfully informing obligation. Thus it is proved that the views I proposed above are of legislative significance and rationality, and they are not only conducive to judicial application, but also easier to operate. Therefore, this thesis is not only focus on theoretical research, but also pay more attention to the practice, thus to find a solution to the problem of insurance dispute under real situation.