Study On Specific Explanation Obligation By The Insurer

During Regarding the application of insurer’s obligation of clear explanation, there has been an increasing number of disputed cases because of the inclining protection of the insured. Meanwhile, the lack of concrete and clear implementation norms leaves an ample space for legal interpretation and judge jurisdiction, which leads to the occurrence of similar cases with different court decisions. Therefore, from equal protection point of view, the reviewing, revision and even reconstitution of the system is urgently required, focusing on the insurer’s liability and combining the existing insurance law, especially the newly formulated "Judicial Interpretation of Insurance Act II".Besides the preface and the conclusion, this paper goes with4parts.The first part mainly discusses the theoretical foundation of clear explanation obligation, i.e. the principle of good faith and the principle of consideration balance, by introducing its concept and legal characteristics, combining with the legislative evolvement of Insurance Act.The second part clarifies the essential meaning of clear explanation. The object of the explanation should be restricted to the contents while the standard should be based on the understanding of common people, complemented with the understanding of the specific insurant.The third part introduces the burden of proof of clear explanation, which is advised to be reconfigured against contract types, sources of the exemption clause and the burden of proof of the insured after analyzing the insurer and its dilemma in the legal practice, and clarifying the burden of proof and criterion for judgment of the traditional and new insurance contracts as well.The last part introspects the validity rule of clear explanation obligation. The reconstitution of validity rules and the separation of duty to prompt from clear explanation are proposed on the grounds of the practical dilemma of no force rule and its unclear legal consequences. The application of contract law in the interpretation of legal consequences of breeched explanation obligation is therefore recommended.