The Research On The Incontestable Clause

This dissertation mainly discusses the appearance and historical evolution of the Incontestable Clause, following with its foundation, content's structure, and improvement suggestions. The introduction of this subject illustrates the causes and significance of this research, and briefly introduces the research methods applied in this paper work, such as criterion analysis, comparing analysis and economic analysis. The main body of the thesis, apart from the introduction and the conclusion, is classified into three parts,Part one analyzes the academic basis of the Incontestable Clause, including its meaning and historical evolution, along with its legitimacy and necessity. This part, based on the faithful principle and the fair principle, discusses the legitimacy of the Incontestable Clause, maintaining that the Clause is not an exception of the faithful principle but an exemplification. And the fair principle is the deep-seated jurisprudence of the Incontestable Clause. Moreover, the discussion in the necessity of the Incontestable Clause, which is set foot on the insurance practice, consists of three aspects which are protecting the benefit of the insured, promoting the development of the insurance market and propelling the construction of the harmonious society.Part two details the content of the Incontestable Clause, which is the focus of the dissertation, including the discussion about the applicable range, condition and limits of the Clause, and the connective problems between the regulation of the Incontestable Clause and its related legal systems. Concluding from the foreign insurance legislations and practices, the application of the Incontestable Clause should be treated with white caution, which should reflect the ethical value of its deserving humanism. Besides, the Incontestable Clause can not be applied extensively to all kinds of insurance contracts under the recent conditions of the various systems in the atmosphere of the insurance market. The obverse statements in the applicable conditions of the Incontestable Clause mainly involve the breaches of disclosure duties and the expires of defense period, which contains the subjective and objective aspects, that is, the subjective attitude of the insured, the importance of the facts that were not disclosed properly according to insurance contracts and the causality of the breach and the happening of insurance accidents; the lateral statements limit the boundaries in the application of the Clause. And there are several exceptions in the application such as the accident happened outside the coverage of the policy, the insured did not pay insurance premium on time, the insurance accident happened in defense period, and there were some serious insurance fraud. The Incontestable Clause, therefore, is not available in such exceptions. In the end, this part discusses the consistency of the Incontestable Clause with the related legal systems.Part three gives some suggestions for the improvement of the Incontestable Clause. Firstly, summarizing the main points of the first two parts, and it is necessary to adjust the position of the rule in the Insurance Law, based on the reality of the insurance industry, to limit its extent of the application to personal insurance. Secondly, it is important to stipulate the application of the Clause to the policy reinstated clearly. At last, it is essential to make some restrictions to its application with the means of enumerating and summarizing. For example, if the insured did not pay insurance premium on time or implemented some serious insurance fraud in the process of concluding contracts, the Incontestable Clause is not available.Finally, the conclusion summarizes the main viewpoints of the dissertation.