| Between2002and2004, the contract dispute case (hereinafter referredto as the "Guangzhou Xincheng Case") about Sun Xiao v. GuangzhouCITIC Prudential Life Insurance Company (hereinafter referred to as the"Xincheng Company"), rose the unprecedented attention of the insuranceindustry. An applicant signed proposal, delivered the first premium and hadphysical examinations. Less than12hours later, the applicant was killed,but at this time, the insurance company had not obtained the medical report,and did not issue the policy. Subsequently, the beneficiary (the applicant’smother) claim compensation for both the basic insurance and the additionalaccident injury insurance against Xincheng Company. Xincheng Companyagreed to pay the basic insurance benefits to the beneficiary, but refused topay the additional accident insurance benefits. The two parties failed toreach an agreement, the beneficiary brought the case to the court. On May20,2003, the court of first instance made a judgment: XinchengCompany should pay beneficiary additional accident insurance paymentsand interest. Xincheng Company lodged an appeal against the decision. OnNovember24,2004, the court of second instance returned a verdict: towithdraw the first instance judgment and dismiss the beneficiaries’petition.The controversy focus of the case between the two parties was thatwhether the additional accident injury insurance contract was establishedand validated. During the trail, there was no temporary insurance,compulsory retroactive insurance or other similar contents in our legalsystem in our country, therefore, the author thinks that the second instanceverdict is legal at that time. However, from the perspective of legal realism,ordinary people do not pay attention to the terms and conditions of theadditional accident injury insurance contract to be effective, and once theapplicant pay the insurance premium, he/she will have reasonableexpectation, under which circumstance, it’s not fair essentially that theinsurance company does not pay the additional accident insurance benefitsand the final judgment cannot completely solve the dispute between theinsured and the insurance company. And the beneficiary applied for a retrial after the second instance, which also illustrates that point above. In Maythis year, the Supreme People’s court issued the document calledInterpretations of Several Issues Concerning the Application of ThePeople’s Republic of China Insurance Law (Two)(hereinafter referred to as"the interpretation Two of insurance law"), and the fourth section isstipulated some provisions in principle, provides the basis to insuranceblank period compensation cases. But this section is too rough, there is abig problem in the actual application, and cannot solve the completelycompensation insurance blank period in the aspect of legal system. In thispaper, the author will analyze the fourth section above, and introduce theforeign experience of the insurance blank period compensation, finally putforward legal suggestions for compensation of insurance blank period. Thefull text is divided into six parts as following:The first chapter is about the urgency to resolve the issue ofcompensation of insurance blank period. Firstly, the paper introducesGuangzhou Xincheng Case and explains what is insurance blank periodand what is compensation of insurance blank period, and then analyzeswhat cause compensation of insurance blank period, finally points out theurgency to solve the issue of compensation of insurance blank periodaccording to the reality.The second chapter is about the situation of compensation ofinsurance blank period. Affected by the Guangzhou Xincheng Case andsimilar cases, regulators, industry self regulatory organizations andinsurance experts and scholars had started to pay attention to compensationof insurance blank period before the judicial interpretation issued. TheCIRC, issued the "notice on strengthening motor vehicle compulsoryinsurance underwriting work management"(the letter [2009]91) set forth"provisions of the policy from a single immediate" which according to theprovisions of motor vehicle compulsory insurance policy of insurance onthe insured during the day after the zero hour start. The insurance industryassociation has issued a notice of proposed life-insurance company to addtemporary insurance contents in the insurance contract. Liang Peng, theInsurance law expert and associate professor in China Youth University forPolitical Science repeatedly issued papers for the establishment of a temporary insurance system; Shi Weijin, the associate professor of YantaiUniversity law school published research papers on this issue at twice.The third chapter analyzes the fourth section in the interpretation Twoof insurance law. Mainly launches the analysis about the significance anddefects of Section Four. Section Four makes the general standard for thetrail about compensation of insurance blank period, but it’s impeccable andthere will be cause lots of problems. And this chapter will analyze thedefects one by one.The fourth chapter is about the solution of compensation of insuranceblank period in other country. Compared with the rough regulations inChina mainland, regulations and the judicial practice in foreign countriesare more experienced. This chapter will introduce the temporary insurancesystem of the United States, Britain and Australia, as well as some specificpractices in Germany, Japan and Taiwan.Chapter five introduces the legislation suggestions aboutcompensation of insurance blank period. After the fourth section in theinterpretation Two of insurance law to carry on the analysis, the legislativeexperience from abroad, combined with China’s actual situation, two kindsof scheme is proposed to improve the compensation law of China Insuranceblank period: temporary insurance system first should be established inChina; perfect compulsory retroactive insurance system. At the same time,recommended the establishment and the valid clause of insurance contractinto the insurer obligation of informing and explaining category.The conclusion part proposes ultimate view, namely, the fourth sectionin the interpretation Two of insurance law has the sense of milepost type,fill the gap for the trail basis about compensation of insurance blank period,but it also has some defects and need to be perfected in insurance practiceexperience and to learn from foreign legislative and judicial experiences. |
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