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On The Right Of Cancellation Of The Insurance Contract

Posted on:2006-07-12Degree:MasterType:Thesis
Country:ChinaCandidate:T LiuFull Text:PDF
GTID:2206360155466263Subject:Law
Abstract/Summary:PDF Full Text Request
As the saying goes, life has its ups and downs. The objective existance of risks gave birth to the appearance of insurance, which is becoming a more and more important means to eliminate risks and gurantee social security. But as the insurance industry in China is still in its initial stages, it lacks standardization. On the one hand, the uncertainty of risks impels the insured to take out an insurance policy actively in the hope of receiving compensation and thus reducing individual losses. On the other hand, insurance companies, as the insurer, after the befalling of risks, often misuse their right to rescind a contract to shirk their responsibility of compensation by taking an advantage of their higher position, the adhesion contract and the lack of insurance knowledge of the insured. Therefore, whether the insured can receive their compensation or not usually depends on their individual will. The existence of such an situation no doubt will add to the uncertain factors of settlement of claims, shatter the hope of the insured that "no worry with an insurance", fail to attain the expected goal of social security and thus increase social disputes, while at the same time, lower the reliability of insurance and consequently hinder the development of insurance industry in China. In order to standardize the action of the insurer when exercising their right to rescind a contract and to ensure the benefit of the insured as the weak, there is a necessity to make some rules and limitations of the conditions under which the insurer could implement their right to rescind a contract. This is then the aim of this paper.Four chapters are included in this paper. The first chapter starts with the concept of the right to rescind a contract of the insurer, which then goes on to explain the characteristics of the right and illustrate the law-making principles of the insurance law about this right The second chapter has more detailed analysis of the implementation of the right to rescind a contract by the insurer from two aspects, legal right to rescind a contract and contractual right to rescind a contract .while some comments about the drawbacks of the law concerned are given. Chapter three explores the conditions of implementing or terminating of the insurer's right to rescind a contract, analyzes the defect of the insurance law and puts forward my suggestion that the actions to rescind a contract of the insurer should be regulated fromseveral aspects such as form, procedure and time and that we should incorporate the strong points of waiver and estoppel into China's insurance law. Chapter four investigates the effect of law after the implementation of the right to rescind a contract based on the law cases given by different countries while explaining this right. A proposal is made that the differences between personal insurance contract and property insurance contract and different clients' faults determine whether there exists retroaction or not. Then makes a summary of the cause and effect of the abolition of the right to rescind a contract of the insurer.Based on the comparative study of the right to rescind a contract of the insurer, this paper draws a blueprint of the basic law-making thoughts about the abolition of the right to rescind a contract by the insurer. That is to properly limit the scale of this right, to formulate more detailed rules about the implementing conditions, clarify the time, form, procedure, objects and effect of the implementation of the right by the insurer, incorporate the strong points of waiver and estoppel and make some necessary restrictions on the implementation of the right to rescind a contract This will put an end once and for all to the misuse of the right to rescind a contract by the insurer and thus accelerate the healthy development of China's insurance industry.
Keywords/Search Tags:the right to rescind a contract, legal right to rescind a contract, contractual right to rescind a contract, retroaction
PDF Full Text Request
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