Font Size: a A A

Marine Insurance Abandonment Analysis

Posted on:2006-08-13Degree:MasterType:Thesis
Country:ChinaCandidate:Y Q ChenFull Text:PDF
GTID:2206360155465966Subject:Law
Abstract/Summary:PDF Full Text Request
Abandonment is an ancient legal system, originating from the necessity of protecting the assured in the marine insurance, playing a vital role in encouraging and protecting the shipping industry and promoting relevant trade. Every nation has different rules of abandonment in their legislations .showing different emphases on the interests of the assured or the insurer, indicating respective insurance policy in different nations. The existence of varied doctrines on abandonment gives rise to enormous perplexity in the actual application of this system. There are still a great number of deficiencies in Chinese Maritime Law, which plus the wrong interpretation of the rule of abandonment for lacking of profound comprehension of the theory concerning abandonment, inhibits the abandonment in china from carrying into effect. As one of the leading countries conducting shipping buisness, it is of vital importance for china to offer necessary encouragement for this industry ,and to balance the interests between the assured and the insurer ,in order to stabilize the insurance relationship , and to accomplish the development in the industry of transportation by sea as well as the booming of trade. To fulfill the above purpose , it is necessary to improve the current legislation and to comprehend the theory about abandonment correctly.In this article, some basic principles in abandonment, such as the conception of abandonment,the factors for a valid abandonment, the effect of abandonment ,and so on ,are studied and discussed, through the comparison and analysis of some main doctrines and several typical legislations on insurance abandonment ,in the hope of clarifying the confusions about insurance abandonment .Some new ideas are set out in this article:First of all , the "abandonment" used by different scholars may has different denotativeness, which leads to debates on such respect as the applying scope of abandonment. It is deemed in this article that the "abandonment" in common law is rather similar to the "subrogation", basing on different principle from that of the "abandonment" used in civil law. Thus, it is important to guarantee that the word "abandonment" has a single denotativeness before analyzing the similarities and distinctions between the rule of abandonment in different legal systems.Secondly, in the key part of this article, the essential factors for a valid abandonment arediscussed, in which it is set out that the acceptance of the insurer is by no means the pre-requisite factor for a valid abandonment, neither in pure theory, nor in actual legislations in different countries. The advantage and disadvantage of different modes of legislating the causes of abandonment are also discussed .It is considered that the mode adopted should be in compliance with the same nation's judicial practices. It is pointed out that the mode adopted in Chinese Maritime law on the causes of abandonment is out of harmony with our judicial tradition.Thirdly, in the chapter "the effect of abandonment", it is concluded that it is the indemnity conducted by the insurer, instead of the transfer of interests of the assured, that is the direct legal effect of abandonment. The legislative mode that makes the insurer "entitled to take over the interest" in 《MIA1906》 can not serve as an efficient way in preventing the insurer from obtaining interests automatically which may bring about heavy liabilities. It is recommended that to force the assured to provide "security" before he asks for indemnity, as required in Germany commercial law, can protect the insurer to the utmost extentFinally, it is considered in this article that the article 255 in Chinese Maritime law should be used as a revision of the inelastic rule of article 250 and 256,in order to protect the insurer sufficiently. The idea that sees the article 255 as a right of the insurer to terminate the insurance contract before its expiration is far from an overall explanation.
Keywords/Search Tags:abandonment, notice of abandonment, factors for valid abandonment, causes for abandonment, effect of abandonment
PDF Full Text Request
Related items