The Research On The Clause Of The Transfer Of Insurance Subject

The Clause of the Transfer of Insurance Subject is the judgment clause of thevalidity of insurance contract when the ownership of Insurance Subject changes, andis also an important component of the validity judgment clause in Property InsuranceContract.Both the two legal system have discussion on the topic, insurance legislationin our country with no exception, either. The2009’s revises of Insurance Law revisedmost of the Old Method, and The Clause of the Transfer of Insurance Subject is oneof the highlights there. This revises is a great progress of our insurance legislation, itembodies the principle of tendentious protection for the insured in Insurance Law.But there are also little loopholes, needing to be consummated by judicialinterpretations or legislation complement.The Clause of the Transfer of Insurance Subject makes Insurance Subject as thewidth of the clause, and makes "transfer" as the spindle, and then covers the whole ofthe Clause. To the concept of Insurance Subject, we agree with the commen sence ofour legislation, that uses property and related interests as the formulation of InsuranceSubject, including not only the concept of property, but also the concept of otherrights and interests, such as mortgage, debt-claim and expectation interests, and bythis way to distinguish Insurance Subject from the object of insurance which only hasthe meaning of property and the object of the insurance contract which only has themeaning of prestation. And at the same time,we should distinguish the validity transferof insurance contract which is caused by the transfer of Insurance Subject, from thetransfer of insurance contract which is only for the pure economic purpose.To the reason of the transfer of the validity of insurance contract, we think that,the word of transfer only has the meaning of consensus,it makes the negotiationbetween the parties as the essential condition of the contract, so the transfer ofInsurance Subject only means the ownership of Insurance Subject changes for theconsensus reason, legal causes, such as inheritance and bankrupt, are not included init. And in the reasons of “transfer”, when the validity of the insurance contract changes has become the focus of most papers and textbooks. In Personal Doctrine, theagreement from the insurer is the standard of validity transfer of insurance contract; inOn-content Doctrine, it takes no account of the insurer’s subjective judgment, butuniformly affirm the validity of insurance contract transfers with Insurance Subject.Considering the appearance of the blanking period of insurance,the waste ofinsurance resource, and the retardant on economic promotion, we agree with thecommen view of our Present Legislation to use On-content Doctrine as thefundamental principle on the validity transfer of insurance contract. And in order torealize the surpose of “Scattered dangerous, and share the loss”and the principle ofDamage Compensation of Insurance Law, we give up the Passing-title Doctrine andadopt the Insurable Interest Transfer Doctrine which considers the transfer point ofthe contract risk as the point of the validity transfer of insurance contract.To the question that balance the interests between the parties of insurancecontract, in On-content Doctrine, the insurer’s ability on validity judgment of thecontract and risk control has been weakened, though the Present Legislation endowsinsurers with the right of additional premium or dissolution of contract after receivingthe notice of the transfer of Insurance Subject, because it’s implementation is basedon the notice from the insured or assignee. And how to proceed the policy-holder’spremium delivery obligation still has the room to discuss. So on the balance ofinsurers’ interests, we should consolidate the notification obligation of the insured orassignee, and give the insurer the right to exempt from insurance liability to paycompensation when the insured or assignee don’t perform notification obligationintentionally, but at the same time, it must be assisted by imposing the insurer’sobligation of explanation, and take the insurer’s knowing as the exception. And to thepolicy-holder’s interests, notification obligation from the insured and assignee shouldbe imposed, combing with the policy-holder’s arbitrary termination right in insurancecontract, and empower the insurer with the right to charge premium from the insuredand assignee, to preserve the validity of the contract.