On The Reference Of The Obligation Of Disclosure In Japanese Insurance Law To China

The obligation of disclosure as one of the basic system of insurancelaws, originated in the marine insurance, epitomizes two insuranceprinciples which are the utmost good faith principle and considerationand balance principle. This obligation of disclosure as a pre-contractobligation, has indirect and legal nature, The legal basis of the systemof the obligation of disclosure is identified as the theory of riskestimation in modern times, overcoming many other theories. Theestablishment and improvement of the obligation of disclosure has alwaysbeen concerned about by insurance scholars. With the society develop andimprove, and the level of awareness raise, the insurance businessgradually get into every aspect of people’s lives, various types ofinsurance product come out, but more and more insurance disputes occur,in the field of judicial practice, associating with the obligation ofdisclosure, the cases about the insurer rejecting claims or insurancefraud are increasing, improving the obligation to disclosure system issignificant for insurance legislation and insurance industry.Chinese insurance law was amended in2009, the terms of the obligationof disclosure has been modified, but there are still some shortcomings, Japan enacted the first insurance law in2008, the terms of the obligationof disclosure are more comprehensive. Chinese insurance law provides thatthe main subject of the obligation of disclosure is the insured only, butit concludes policyholder and the insured in Japanese insurance law, whichis more reasonable, and Japanese insurance law provisions of the insuranceagents are also more clearly. In the aspect of performance period, Japanese insurance law provideswhen concluding an insurance contract,which is more accurate. For breach of the obligation, Japanese insurancelaw adopts the theory of causality, Chinese insurance law discriminatessubjective element, only under circumstances of gross negligence itrequires a causal relationship, which is more scientific. Japaneseinsurance law provides that the incontestable period is five years, longerthan China’s two years, in addition, the terms about estoppel concludethe situation of negligence, but we don’t. For specific matters thereare some suggestions of improvement in the system of the obligation ofdisclosure, covering expanding the scope of the obligations subject, limiting range of informed, limiting inquiry mode, improving right ofcancellation. This thesis analyzes the obligation of disclosure betweenChina and Japan comprehensively by the method of historical comparison,focusing on the revision of insurance law both China of Japan.