Discussion On The Obligation Of Insurance

The duty of disclosure is a traditional and unique system in insurance law. The smooth development of insurance industry depends on the rational structure of the duty of disclosure. All countries have duty of disclosure in there legislation. The 17 clause of Insurance Law of China have prescribed the duty of disclosure, with the development of society and insurance industry, the faultiness of the duty of disclosure appears. The Insurance Law of China has been perfected in 2002. But the duty of disclosure has not changed. Though involved in《the interpret of some questions about cognizance the insurance dissention》printed by the supreme court, the perfection of the duty of disclosure has not been legislated. It is a block for the insurance industry of our country. So, it is necessary to discuss the duty of disclosure. This dissertation uses comparison analytic method and economics analytic method to explain the general principle of the duty of disclosure and its law questions by making reference to legislations and academic views abroad, and gives the suggestions about the perfection of it. This dissertation is divided into six parts altogether.The first part is the basal theory of the duty of disclosure. First, the dissertation gives the definition and quality of the duty of disclosure and analyses the foundation from legislation and economy. The dissertation points out that the good faith principle and consideration and balance principle should be insisted, the anti-choice phenomena brought by the dissymmetry in information of insurance contract should be considered at the same time.The second part is about parties of the duty of disclosure. Because the parties of insurance are more complicated, in this part, the dissertation points out that the disclosing obliger refer to applicant, insured and their agent, the counterpart of disclosing obligation is insurer and insurance agent, especially giving the medical examiner the right of receiving the disclosure.The third part is the fulfilling time of the duty of disclosure. The time to disclosure should be explained before the insurer agrees to the insurance contract, also including the moment of being effective again of discontinuance contract. For the time of renewing a contract and changing the contract, the fulfilling time should be defined according to the concrete situation.The forth part analyses the content of the duty of disclosure. This part dissertates from two aspects: one is obligatory notification item and the other is exemption notice item. The dissertation thinks the content of disclosure should be understood in subjective and objective way. That means the content would be 'material facts 'in objective and 'to know or have reason to know 'in subjective. The applicant or insured has no obligation to disclose if one thing has been known or ought to be known by the insurer, not been asked by the insurer, not been known by the obligor.The fifth part is about the scope of the duty of disclosure. After a comprehensive analysis, the dissertation points out that the scope of the duty of disclosure should be limited the paper inquire, availing the interest balance of the agent of the contract.The sixth part discusses the constitution important document which violates the duty of disclosure, as well as the legal consequent which produces from this. Violating the duty of disclosure must simultaneously have subjective and objective important document; The legal consequences which are caused by violating the duty of disclosure mainly lie in causing the insurer to obtain the power to relieve the insurance contract. The dissertation points out that it is necessary to order the efficiency period, clarify the adscription of the premium and order the instance of preventing the right of relieving.