Research On The Legal Issues Of Guarantee Insurance Contract

Guarantee insurance to protect creditors’ interests, to strengthen the role of credit and other aspects ofthe insured loans, has become widely accepted in the consumer mortgage loans, insurance companies arealso actively developing to ensure that insurance products to expand the insurance market. However, withthe expansion of the guarantee insurance in China, judicial practice has been arousing various disputes, thetypical problems mainly as the following: whether the insurer will have the object of insurance interest;whether the loan contract defects or invalid will affect the effectiveness of insurance contract; whether itshall prevail that the rights and obligation in cooperation agreement of the underwriter and the insuredcompared to the guarantee insurance contract agreement; whether the guaranty insurance insurers’responsibility is as a precondition that the insured provides the effective guarantee to them.The solution to ensure the insurance contract, insurable interest, and loan contracts, relations ofcooperation agreements, we should first make a clear definition of the nature of insurancecontracts. Theorists and practitioners’ debate of the nature the insurance contract are also heated, there arethree main views: one view is that guarantee insurance contracts is a guaranty, another view is that theinsurance contract is insurance, the last view is a mixture of the former two views. The author thinks thatguarantee insurance contract strictly distinguishes the suretyship contract, guarantee insurance contract forloan contract creditors of the performance of the debtor’s behavior enjoys a stake in accord with theinsurance law of insurance benefits regulation, the underwriters of the performance is policy-holder creditrisk, and guarantee insurance contract have risk transfer mechanism, therefore, guarantee insurance contractis a special kind of property insurance contract.On the basis of precisely defined the nature of insurance contracts, focusing analysis the insurancecontract, namely to explore the rights and obligations of the parties to the contract and the relationshipbetween people and the insurance liability. To ensure the insurance contract’s binding on the parties to thecontract and relationships shall need to meet the three conditions, first of all, there is an insurable risk onthe meaning of Insurance Law, Second, the insured person enjoy an insurable interest on the subject matterinsured in the insurance Finally, the insured should be non-malicious duplication of insurance. Obligation of the insured is to pay premiums and to set the guaranteed obligations of guarantee insurance. In China,the contract rate determined unreasonable, can not really play the role of the market, to ensure that theinsurance contract we should draw on to ensure that the insurance system is developed countries, theestablishment of specific rates shall be determined by the institution, In addition, before the bank loans tothe debtor, usually requiring the debtor to provide security, Insurance companies are also format clausesthat the insured did not provide effective guarantee so as to be irresponsible. as a defense, require theinsured to provide security is a way to prevent the risk of default, but this traditional civil securitymechanisms disadvantages, we should lead the insurer and the insured signed a comprehensivecompensation agreements, and appropriate credit to the insured, to increase their consciousness to fulfillcontractual obligations, but also expanded the scope of responsibility of the staff. The insured person’s rightto insurance compensation claims to ensure that the insurance contract is the contract of a third partyinterests, the banks affected by the economic losses due to breach of the insured bank as the insured personentitled to insurance money compensation claim. Insured’s obligations is to truthfully inform theobligations and credit review obligations,"Insurance Law" usually require the insured to truthfully informthe obligations to guarantee insurance contracts, But in the guarantee insurance contract,the insurer and theinsured there are trading relationship, the insurer are familiar with credit status of insured. Therefore,according to the principle of utmost good faith insurer shall bear the obligation to truthfully inform and thebanks can not ignore the statutory inspection of the insured credit approval and lending obligations exist toensure a safe haven for insurance. The main obligations of the insurer are the insurance terms of theobligations and insurance liability obligations, and the main rights are to enjoy a right of subrogation to theinsured to pay the insurance compensation.Ensure that the scope of the insurance liabilities in addition to the loan amount should also include theapplicant does not fulfill the loan contract agreed repayment obligations resulting from overdue interest,penalty and liquidated damages were excluded from insurance coverage, because the guarantee insurancecontract as a property and casualty insurance contracts strictly follow the principle of harm to fill, enjoy theright to insurance claims, the insured can not obtain additional benefits. The insurer shall not deliberatebreach of the insured as the exemption subject matter, it is for the uncertainty of the insured creditguarantee insurance contracts and to the safety of insured bank funds to provide effective risk diversification pathway. Analysis the insurance contract disputes practice, the corresponding solutionsexplicitly guarantee insurance contracts independent of the loan contracts, cooperative agreements, andensuring the effectiveness of the insurance contract is also independent of each other, both the prescribedcontent to repeat circumstances should not be simply identified the effectiveness of what is priority shouldeach case to analyze specific issues. In addition, the insurer may not be the first exercise of security rightsas a premise to assume the insurance responsibility, unless the contract by special agreement.