The Preliminary Study On Waiver And Estelle System In Chinese Insurance Law

Waiver and Estelle System originate from Anglo-American Law of Contracts, aiming to limit the doctrine of consideration in Anglo-American Legal System and protect legitimate interests of the other non-consideration party to the contract. After the20th century, the system was gradually adopted in Anglo-American Insurance Law to restrain insurers’defense behavior. Although Continental Law Countries have not proclaimed the system in writing, all of them have given it certain approvals during lawmaking process. In the course of long-term development, Chinese Insurance Legislation used legislation feature of the two legal systems for reference and formed its own legislation system on the basis of national conditions. In the meantime, the introduction and implementation of Waiver and Estelle System is ever promoted by domestic scholars and legislators. After long-term exploration and efforts, the system finally was showed in Article16.6of Insurance Law implemented in October2009, but as Waiver and Estelle System formed in Anglo-American Legal System, few Chinese scholars make a thorough research on it. Therefore in China, there are many misunderstandings and confusions about the system, thus Chinese current law never completely learns its useful effect as in foreign Insurance Law to complete legislation for restraining insurers’defense behavior.The author is just inspired by above situation, in the hope of using this thesis to do further researches on connotation and history of the system, make comparative analysis of the system with similar concepts, and confirm applications and constitutive elements of Waiver and Estelle System in Insurance Law. With comparative analysis of both, the author is trying to clarify some misunderstandings and confusions about the system in the law field, on the basis of it, specifically supplement and complete current law and terms, establish suitable legislation models to China, and then accordingly to have them efficiently applied to actual cases of Insurance Law. Along such research thoughts, the author finished this thesis by study of cases and comparative analysis. The logical construction is as follows.Introduction:By stating some scholars’research results on Waiver and Estelle System, the author describes her writing purpose, study object and writing plan, making preliminary laying for the purpose of this thesis. Chapter One:Summary of Waiver and Estelle System in Insurance Law. Starting with basic concept of Waiver and Estelle System, the author gets her own acknowledge by comparing scholars’definitions of different law systems. On this basis, the author makes comparative analysis on concepts of the system. At the end of this chapter, the author discusses values of the system in Insurance Law Field.Chapter Two:Comparative analysis of Waiver and Estelle System in Insurance Law. By discussing creation&development of the system in Anglo-American Legal System and its relative embodiment in legislation of Continental Law, the author reveals its conrrelation between Continental Law and Anglo-American Legal System. At the end of this chapter, the author makes comparative analysis on this system and the existing systems of Chinese Insurance Law.Chapter Three:The analysis on structure of Waiver and Estelle System in Insurance Law. By studying foreign legislation, the author discusses Waiver and Estelle Rules separately on constitutive elements, applicable scope and applicable restrictions etc. sides. At the end of this chapter, there is a comparative analysis on the structures of both.Chapter Four:The perfection of Waiver and Estelle System in Chinese Insurance Law. In this chapter, firstly the author analyzes the advantage of localization of the system in Chinese Insurance Law, and then discusses its deficiencies in Chinese Insurance Law by objectively analyzing its current situation. At last, the author offers relative lawmaking suggestions on the basis of applications of the system in Chinese Insurance Practice, including lawmaking suggestions for current articles and lawmaking model&perfection of Waiver and Estelle System built in China.Conclusion:The author makes a summary for above discussions and again clears her ideas, and proposes relative questions waiting to be improved urgently on the basis of perfection of legislation suggestions of Waiver and Estelle System in Chinese Insurance Law.