Study Of The Special Provisions Of The Insurance Contract

Article 20 of the insurance law of the People's Republic of China stipulates that, besides the insurance contract provisions stipulated by the former article, the insurer and the insured may determine other provisions related to the insurance. This article is always considered as the stipulation on the special clause of insurance contract. In the theory of insurance law , the special clauses of insurance contract, which in English and American insurance law, however, are only comprehended in narrow sense (that is to say, they just refer to warranty clauses), are usually classified into two types: broad special clause and narrow special clause. In the insurance law of Taiwan region, the special clauses are also comprehended in narrow sense. In most scholars' views, Article 20 on special clause of our insurance law should be comprehended in broad sense, but the writer holds an opposite view—it should be comprehended in narrow sense better. There are three main reasons to support the writer's view: first, the institution of special clause, which originated in English and American insurance law, has always been comprehended in narrow sense; second, the special clauses comprehended in broad sense wil result in difficult regulations; third, we can make reference to the special clause stipulations in Taiwan insurance law, which are relatively perfect. Therefore, the study on special clause in this article will be carried in narrow sense.This article can be divided into three parts: part one is a total introduction to special clause, in which the writer mainly discusses its definition, classification ways, origin, related doctrines, characteristics and validity, and also refers to its quality in common law sysiem and continental law system; part two :s a comparative analysis between special clause and related concepts, which include disclosure, condition term, exemption term and other concepts. So this part is a comparative study on special clause; part three is a relatively deepgoing study on the regulations of special clause, in which the writer not only analyzes the legislative, juridical, and administrative regulatory ways, and also evaluates the present regulatory situations in insurance law of our country. On the basis of the former three parts' study, the writer puts forward his own proposals on the improvement of special clause in the conclusion.The special clause of insurance contract, as an imported institution, gives the partiesof an insurance contract the rights to determine the contents of contract freely, which in some sense certainly indicates the principle of autonomy of private law. According to the characteristics and functions of special clause, the writer engages the article mainly by way of comparative law and positive law. All in all. the suggestions derived from the writer's study are just to make progress in the legal institution of our insurance.