On Protecting The Interests Of The Insured Of The New Insurance Law In 2009

In the insurance transactions, the phenomenon are widespread, for example, the insurer fraud and misleading the insured, abuse the right of terminating the contract, abuse the standard terms of the insurance contract, and delay claim time. The unfair phenomenon has bad impact on the interests of the insured, and it makes our thinking about how to further protect the insured becoming a reality. New insurance law in 2009 has the purpose of strengthening the protection of the interests of the insured, it has modified systematically the deficiencies of the old insurance law, has further clarified rights and obligations of both parties, has an important practical significance on protecting the interests of the insured. Though the progress is not in doubt, there are still shortcomings.The author believes that strengthening the protection of the interests of the insured has profound theoretical and practical basis, it is not only inherent requirements of the principles of protecting the weak and the value of pursuit real fair in civil and commercial law, but also objective needs of formatting and consumption of insurance transactions. The new insurance law makes up the deficiency of the old insurance law in the duty of disclosure, the duty of account, exercising the right to terminate the contract, the establishment and effective of contract, the limit of claims time, it has reasonably draw on the advanced experience of foreign countries, having an important role on strengthening the protection of interests of insured. But the new insurance of protecting the interests of the insured is not very comprehensive, it has many pacts need to improve. The new insurance law has modified the subjective elements of the duty of disclosure and legal consequence of the duty of disclosure, it has a good effect on relieving insured's burden on the duty of disclosure, but it lacks the scope limit of the duty of disclosure. Using "Ask rules", it is completely hand over the right of determining the scope of the duty of disclosure to the insurer, and it is likely to cause this phenomenon:the insurer expends the scope of the duty of disclosure at will for guarding against operational risks, in order to avoid this unfair and balance the interests of both parties, the system This "Ask rules" need to improve, giving the insured more right to raising evidence to the contrary on the important facts in the process of using "Ask rules". For the duty of account, the new insurance law has amended it Importantly, showing the legislative trend that the duty of accounting is strengthening, is conducive to protect the insured's right to know, this is worthy of recognition. However, the law in the legal consequences of violating the duty of accounting is too simple. For violating the duty of explicitly account of disclaimers, the law only stipulates the clause is not valid, for violating the duty of general account, the insurance law does not provide penalties for the insurer or give the insured the right to relief, this stipulation is slightly rough, it make the punishment on the insurer's violating the duty of account far less than the punishment on the insured's violating the duty of disclosure, has an obvious imbalance in distribution of responsibilities, and violates the principle of fairness. The situation of receiving premiums in advance is very common in the insurance business, but the insurance law not stipulates the problem that whether the insurer should bear the responsibility. I believe that the premium received in advance can reduce the risk of the insured to some extent, to avoid wasting excessive checking resources of insurers. It is beneficial to the insurer, but is adverse to the right of the insured to use the funds, so the insurers should also bear some responsibility benefit in the same time. Otherwise, it is not conducive to the protection of the interests of the insured, contrary to the principle of balance of interests. In addition, the new insurance law also ignores the provisions on the scope of the disclaimer and the distinction between "account" and "clearly account" in the way of implementation and the extent of implementation, makes the system of protecting the insured lack operability. For the scope of the disclaimer, I think we should identify the scope of disclaimer basing on the real intention and the purpose of legislation as:exclusion terms, the terms that the insurer may terminate the contract or refuse compensation when the insured fails to fulfill specific obligations. For the distinction between "general account" and "clearly account", in the way of implementation, "general account" should take a passive approach while "clearly account" should take a method of active and passive account, in the extent of implementation, "general account" should adopt a rational standard, requires the insurer's interpretation of the terms should be sufficient so that the average insured can understand, "clearly account" that should adopt rational standard-based, supplemented by specific insured standard. This method is benefit to improve the operability of account, and make the insurer outstanding the account for the exemption clauses, at the same time, not neglecting the passive account for the general term so that the interests of the insured can be protected in maximum.Therefore, the new insurance law should further improve the relevant system in maintaining the balance of interests and enhance operability. Specific recommendations:Add the insured's rights of raising evidence to the contrary on the important facts in "Ask Rules". Add specific terms on legal consequences of violating the duty of account. Add the protection of the interests of insured during the period of insurance verification. Explain the extent of disclaimers clearly. Distinguish "general account" and "clearly account" in the way of implementation and the extent of implementation.