Research On Incontestable Rule Of Insurance Law

By binding the insurer, the incontestable rule benefits to prevent insurer abusing its right，so as toprotect the right of policy holder. Although the incontestable rule was introduced to Insurance Law ofChina in2009, the provisions are too relatively simple to deal with the complex social practice.Therefore, this paper tries to use the method of comparative analysis, historical analysis and valueanalysis to discuss the rationality and the legitimacy of incontestable rule by taking a research on itsorigin and development. What’s more, this paper aims at providing several advices to improve theincontestable rule of China by the discussing some controversial issues in its judicial pracice. This papercontains four parts besides the preface and the conclusion. The main contents of them are as follows:In the first part, the author introduces the meaning and history of the incontestable rule. Like theinstitution of Waiver and Estoppel, the incontestable rule has the alike function to restrict the insurerto exercise the right to rescind the contract, but there are also some differences among the three.Incontestable rule originated from the Anglo-American Legal System, and it is not only a specialagreement clause in an insurance contract, but also a rule with legally universal and compulsory.The second part describes the legal basis of incontestable rule. The incontestable rule brokethrough the rule of "fraud makes the contract voidable or invalid", which has been a basic rule of thecontract law. On the one hand, it is adapted to the good faith principle, on the other hand, it is also inline with the pursuit of the three fundamental values of public policy——effectiveness, benefits anddevelopment. Therefore, the incontestable rule has its rationality and legitimacy.The third part discusses some controversial issues in the application of incontestable rule. Theincontestable rule should not be applied to the serious fraud. The incontestable rule should not applywhen the contract is null and void. The contestable period should be calculated twice when theinsurance contract is reinstated. The application of the incontestable rule should be limited to noinsurance accident occurs during the contestable period. The right of revocation on the contract lawshould be excluded by the right of rescission on the insurance law.The forth part presents some advices to improve the provisions of incontestable rule of China. Theincontestable rule of China applies to both the life insurance contracts and property insurance contracts.The contestable period should start from the time of the beginning of the establishment of the contract.China’s legislation should specify the applicable rules which have been illustrated in the third part ofthis paper.