Study On The Reconstruction Of The Explanation Obligation Of The Insurer In China

Modern society is a risk society.Insurance as an effective means of filling theloss and sharing the risk becomes more and more important in people’slife.However,with the rapid rise of insurance transaction volume,insurance disputesbegin to appear in large numbers.Among them,most disputes are about theexplanation obligation of the insurers. Why will appear this kind ofphenomenon?Firstly,considering the practical factors, on one side,it’s difficult tounderstand as the insurance contract is adhesive and professional.So the inequalityappears between the transactors.On the other side,it often occurs that the insurersdon’t explain and explain falsely especially when the insurers are in the persuit ofmaximum profits stimulation.Secondly,considering the factors of law,although theinsurance law never neglect the insurer explanation obligation system ofregulation,especially with the promulgation of the new insurance law,it makes moredetailed provisions in performing the scope and method,there is a big gap between thepractical effect and the expected effect as the unspecific as well as the irrational of theregulation.The former,for example,the scope of the obligation is not clear and theenforcement of it is lack of operability.The latter,for example, the punishment theinsurers receive when they break the regulation is not reasonable.Once any disputeoccurs in view of the above problems,the insurers have to bear the adverseconsequences often as the consideration of the court of protecting the weak.It givesthe reason why the losing rate of the insurers is high.However, the risk of losing ratemakes insurance companies operate difficultly,and this does harm to the positivity ofthe insurers when they perform the explanation obligation.In the other words,on onehand,the benefit preference make the insurers don’t like to explain.On the otherhand,it runs out of the lawmakers’ desire when they want to constraint behavior bythe enforcement of the law.So in order to change the situation,the author will analysethe reasons of the problems and find a solution to them from a view of utilitarianism.According to utilitarianism,no matter people choose to observe the law or breakthe law,it’s the result of the judgement that people can obtain profit.We don’t take the situation that people try to obtain extreme profit into consideration.People choose toobserve the law because they can get more profit compared to break it.It’s the samewith the contrary.The theory of utilitarianism explain the motivation that why peopleobserve law and it’s very reasonable.The result is that any lawmaker who wants toobtain good effect of legislation must pay attention to that it’s not enough by the lawenforcement externally,the more important thing is to motivate the inner energy, andthe inner factor is profit.And then we can make a conclusion like this.The lawmakersshould try to balance the interests of all parties and satisfy the expected profit of thepeople who observe the law.So,the viewpoints above provide a new way of thinkingto solve the problems that the insurers don’t explain well.Firstly,we should analysethat defects of the present system and how it results in the imbalance ofinterests.Secondly,we should reconstruct the system of the explanation obligation ofthe insurer based on the balance of interests.According to the author,we can balance the interests of the insurance traders andreconstruct the system of the explanation obligation of the insurer from the followingfour aspects.Firstly,on the aspect of the scope of the explanation obligation of theInsurer,one side,we should change the situation that the scope of the generalexplanation adds too much burden to the insurer and the scope of the specificexplanation is not clear.For former,we should connect it with the popularization of theinsurance documents.For latter,we should make the scope become clear.Secondly，weshould standard the process of the explanation obligation of the insurer.On one hand,we should guarantee policy-holder’s right to learn the truth;On the other hand,weshould give a solution how to prove that the insurers have performed theobligation.Thirdly,from the perspective of justice and the balance of profit, we shouldcombine insurer’s active explanation with positive reply,and use rationalunprofessional standard to improve insurer’s explanation obligation.Finally,in orderto hold the team foundation,the author suggests building the system of “cooling-offperiod of observation”.