Guarantee Insurance Legal Issues

The bond is an imported system from abroad in the 1990s. Then it is developing progressively in China. The typical kinds of bonds have: installment bond ,real assets loan bond and automobile consuming loan bond. Although it has positive significance to all the parties, this system isn't perfect because it only appeared for a short time and it lacks of comprehension adjustment with relevant laws and regulations. The theoretical circles is filled with kinds of even opposite views on it. And the practice of operation on it isn't standardized. Even the jurisprudent cases swing on this system. There have been various articles in studying bonds appeared in the news media in recent years which means this system became an issue and attract general concern. In this paper the writer also believe that it has very important theoretical and practical significance on studying this system.At present, the scholars' studies on the issue are mostly concentrated in the nature of the bond. They compare the guarantee and insurance parallel and make sure their characters by reasons of the relationship between the parties, independence and legal application etc. the writer considers that it is illogical to analyze legal nature from comparing different legal relationship. To study the nature of the bond, we should begin with the conception of insurance and analyze the bond on the basis of the elements of insurance. Then we can see the elements of the bond are in line with the general provisions of the insurance elements and to obtain the insurance character of the bond.This paper is divided into five parts:Part I, the rationale of the bond. It is introduced on three aspects of historical development, conception and types. The part of historical development has a brief introduction on the present situation of bonds in America, France, Japan and China's mainland and Taiwan. Through the comparison of different countries' present situation we can see which stage that our system on and import the useful points from developed countries. And from classifying the conception of the bond we can see different scholars give different definitions because of the disputes over the nature of the bond. Through arranging different definitions this part provides theory support for defining the bond in latter parts. In the types of the bond, this part provides general types from referencing to the views of different scholars.PartⅡ, the nature of the bond. The system of the bond and guarantee security are confused because of no legal provision and the chaos on practice. And it has led to hot debate on the nature of the bond. Is the bond a guarantee or insurance in essence? Difference scholars present different views and give their explanations. There are three points mainly. First one is "insurance" which considers that the bond is insurance and give its explanation; the second one is "guarantee" which considers that the bond is guarantee in essence, it only borrows the shelter of the insurance; the third one is "mixed view" which avoid the question of the nature of the bond and has the statement from legal application that the relevant provisions on both insurance law and guarantee law are applicable in solving the legal relationship of the bond. While explaining these three points their corresponding judicial precedents are presented. Through this part we can see the focus of the controversy on the nature of the bond debating. And we can identify the crux of the problem through analyzing kinds of theories and provide the basis for defining the nature of the bond in the latter parts.PartⅢ, the legal relationship of the bond. This part is the most important part of this paper. It analyzes the legal relationship of the bond from its parties, the subject matter of insurance and insurable interest, insurance accident and insurance claims in behalf. Through analyzing it from the basis elements of insurance and come into a conclusion that the bond is a kind of insurance. This section is focused on the analysis of insurable interest and whom it belongs to. The most important focus of the controversy between "insurance" and "guarantee" is that whether the policy-holder has insurable interest on the subject matter of insurance. Through deeply analyzing on the subject matter of insurance and insurable interest, this paper comes into conclusion that: in the property insurance, the insured person should have insurable interest on the subject matter insurance when the accident occurred, or the insurance contract will be void; in the life insurance, policy-holder should have insurable interest on the subject matter of insurance when insured, or the insurance contracts will be void. Through the analysis on the insurer's right of subrogation in the bond, to provide some suggestions to improve the system of right of subrogation in China's insurance law.PartⅣ, the comparison between the bond and the similar systems. On the basis of the insurance character of the bond , comparing the bond and other similar systems such as guarantee security, credit insurance and insurance guarantee, this part goes further to distinguish the similarity , especially the difference, during these various systems, to clarify the relationship between each other, and further to clear the insurance character of the system of the bond and the value of its independent existence. This part focuses on the comparison between the system of the bond and guarantee security. And the comparison goes from various aspects including main, nature, content, independence, nature,evidence and extent of the responsibility, as well as legal consideration. This clarifies the differences between the bond and guarantee security, so as to avoid confusing both of them.PartⅤ, the present situation and improvement of the bond in China. As the bond has been developed for a short time in our country, it lacks control with relevant laws and regulations which resulting in very unreasonable risk-sharing in practice. Coupled with the loss of the personal credibility and the quality and ability of staff cannot reach the requirement, the development of the bond in China suffer serious obstacles. Bases on the analysis of these existing problems the paper will provide suggestions to improve the system of the bond from the aspects of legislative improvement and the establishment of personal credit information system. And trying to provide a good environment for the healthy improvement of the bond through improving the system.This paper mainly adopts comparative method. First, through the brief introduction on the situation of domestic and abroad, we generally see the bond at what stage of development in the world and know the present developing situation in our country. Secondly, through comparing the bond with insurance we know the insurance attribution of the bond; through comparing the bond with guarantee security, the security attribution of the bond is excluded; and through comparing the bond with other similar systems, we make sure the independent existing value of the bond. Finally, through the antithesis between the bond business and the other insurance business , we can find the prominent issues existing the actual operations of the bond and put forward specific proposals.