Comment On Insurance Contract Dispute Case Of Liu And A Property Insurance Corporation

In China the insurance law’s provisions2of article17stipulates that clause of “absolvingthe insurer’s responsibility” not only should be reminded sufficiently to get the fully attentionof the applicant, but also explained clearly by the insurance company. If the insurancecompany dose not illustrate the above clause clearly,the clause will not take effect. Therefore,whether the insurer fulfill the reminding and explaining obligations about the above clause,itrelates to deciding the insurer should assume insurance responsibility or not directly. However,the insurance law ’s article17is provided quite roughly and vaguely, just specifing “the clearexplaining obligation” in principle. There is no clear and strict definition of the scope of thereminding and explaining obligations, the way to fuifill it, as well as the legal consequencesof violation of the above obligations. The insurance legislation is not perfect, resulting inacademia, the judiciary argue against how to identify whether the insurer has fulfilled thereminding and explaining obligations or not. Therefore, the study of the case have theoreticaland practical significance of that. It is beneficial to consummate the related legal provisionson the insurer explaining relevant legal obligations explicitly, in order to solve the problemthere is no clear hint and the scope of the demonstrative obligation, methods, standards andlegal consequences and other issues under the existing law background to fill the fuzzygeneral legislation,and to give justice the law based.The basic facts of the case is that the plaintiff(Liu Mou) and the defendant(a propertyinsurance company) entered into a property insurance contract, after the insurance accidenthave happened, then the insurance company asked Liu Mou orally by telephone, reaching anagreement to withdraw the case. But in this case the key fact is that the insurer concealed LiuMou the key information that Liu Mou can get the settlement of insurance claims, whetheroral agreement to withdraw the case may be revoked? The focus of controversy in this case,there are two: Firstly, whether the insurance company executes the specified obligations forthe "disclaimer"; Secondly,if the agreement with the legal requirements can be revoked. Whendiscussing the the first dispute focus:I mainly analyzes legal source of the insured obligationexplicitly, then define the connotation and extension of two legal concept the"disclaimers"and"clearly stated",focusing on the comment on the several academic point onthe legal nature and legal consequences of the insurers disclaimers obligations explicitly. Theanalysis of the second focus of dispute: I mainly analyzes the nature and legal consequencesof the agreement to withdraw the case. This case is a kind of commercial fraud,it is different from civil fraud and has its particularity, then I summary foreign theories about "fraud" inorder to compare with the "fraud" of this case. Then, analyzing the concept of "materialfacts"from the insurer’s perspective in order to distinguish it from the definition of insured"important facts" in the perspective of scholars. In short, in this case the insurance company ’sbehavior of concealing the important fact was a commercial fraud, on this basis, theagreement reached between the parties to withdraw the case should be deemed that Liu Mouhave made defective intention, so it was a revocable act and should be revoked.