Studies Of Judicial Review Of Underwriter Disclaimer Demonstrative Obligation

In the insurance practice,based on the rules of the insurance industry,the exemption clauses in the insurance contract is usually provided by the insurer, so the content of insurance contract basically reflects the insurer’s real intention. In the vast majority of cases, the right to modify the terms of the contract when the policy-holder sigh the contract can not be effectively protected, and thus the policy-holder’s knowledge and understanding of the terms of this kind of contract can not reach the same level of the general contracting parties’ because of their weak professional knowledge and awareness. In order to effectively solve this contradiction and properly balance the interests of the insurer and the policy-holder,All the countries in the world generally give the insurer description obligations of exemption clause when concluding a contract in the legislation. As an important industry rule and contracting obligation, the obligation has become the important basis for effectiveness of exemption clause in insurance contract.In insurance practice,how will the insurer fulfill their description obligations of exemption clause. On the method of execution, extent, standards and scope of the insurer’s description obligations of exemption clause, theorists are still controversial, and practitioners also practice in different ways. In the judicial practice,many disputes have been aroused because the insurer did not fulfill the description obligations and explain the format clause reasonably which they use their professional status to set. So it has become one of the important ways to guide and promote the healthy and harmonious development of the insurance industry that the insurer’s description obligations of exemption clause and the contracting behavior are further reviewed and regulated by judicature.The author of the article, combineing with the status quo of China’s insurance legislation and frontier theory,has analyzed and discussed the system settings, theoretical basis and judicial regulation of the insurer’s description obligations of exemption clause from the perspective of empirical analysis. The article is divided into four parts:the first part focuses on the concept of the insurer’s description obligations of exemption clause, and the object of the description, the nature, fulfillment criteria and the theoretical basis. This part emphatically explains the concept of the insurer’s description obligations of exemption clause,defines the fulfilling ways of the insurer’s description obligations in different sale kinds of insurance products, and discusses the economics foundation, legal basis and practical foundation of establishing of the insurer’s description obligations.The second part mainly examines other countries’ relevant systems of the insurer’s description obligations of exemption clause such as Germany,France,Japan,the United States,Britain,and so on. And then makes a deep comparison between these countries and our country. The third part mainly makes an empirical investigation on the current situation of judicial review on the insurer’s description obligations of exemption clause from the anger of the basis, contents, ways of judicial review and the burden of proof. At the same time, this part focuses on the problems of the current judicial review on the insurer’s description obligations of exemption clause. After actively learning from foreign experience, the fourth part makes some comments and suggestions on perfecting the judicial review on the insurer’s description obligations of exemption clause, further regulating the contracting behavior of the insurer, and achieving the freedom of contract, integrity and fairness through fulfilling the description obligations.