On The Duty Of Marine Insurers A Description Of Exemption Clauses

As the clause to exclude insurer's liability of compensation, exclusion clause in insurance contract determines the risk that is borne by insured himself and influences insured's right to claim compensation against insurer after the occurrence of accident, thus has close relationship with insured's interests. The insurer's obligation to direct the exclusion clause requires insurer to specifically present and explain the exclusion clause in insurance contract to policyholder or insured during the contracting stage. The clauses in insurance contract are always studied out by insurer, which makes insurance contract the most classic formative contract style. So how to maintain the justice of exchange is a modern subject for marine insurance contract legislation. Insurance Law of PRC sets strict explanation obligation for insurer: Insurer shall direct the contact clauses to the insured, especially, shall explain the exclusion clause specifically. However, what shall not to be sneezed at, with regard to the marine insurer's explanation obligation, there are flaws in Chinese marine insurance legislation and judicial practice. In marine insurance field, the insurer's explanation obligation would be somehow different from non-marine insurance field due to the marine insurance's marked characteristic, which has not been embodied in recent marine insurance legislation. On author's standpoint, how to balance the interests between the insurer and insured with emphasizing the marine insurer's explanation obligation is a very important task for modern marine insurance legislation. This thesis is composed of six sections:The marine insurer's explanation obligation and several classic cases in relation to this topic are summary introduced in the first section.The second section expatiates on the theory basis and legal character of insurer's explanation obligation. It illustrates the principle of utmost good faith is the fundamental theory basis of explanation obligation.The third section analyzes the fulfillment of explanation obligation detailedly. It particularly discusses the fulfillment body, contents and extension, fulfillment duration and fulfillment means as well as the fulfillment standards of insurer's explanation obligation.The fourth section concentrates in the legal consequence of breach of marine insurer's explanation obligation; points out that: on the basis of marine insurance's distinct characteristic, when marine insurer disobeys the explanation obligation, the legal consequence of shall be different from such of non-marine insurance. Furthermore, it points out the subsistent problems concerning this topic in Chinese marine insurance legislation, the relative amendment suggestion is also put forward.The fifth section discusses the distribution of burden of proof in relation to insurer's explanation obligation. The major disputes in recent judicial practice are particularly analyzed and the author's standpoint is brought forward after such analysis.In the sixth section, on the basis of forgoing parts and concerned analyses, author proposes some constructive suggestions to amend and improve marine insurance legislation, marine insurance actual practice and judicial practice.