The Empirical Analysis Of Judicial Adjudications Of Insurer’s Obligation To Disclose

The Article 17 in Insurance Law of our country provides the insurers’ three aspects of obligations including providing standard terms、prompt obligations and obligation to disclose expressly, which is aimed at eliminating the information asymmetry gap between the proposers and the insurers. In judicial practice, whether special terms are the object of obligation to disclose expressly remains controversial. There is no unified judgmental criterion on the legal effect of proposer’s statement which is the evidence of the fulfillment of obligation. The courts haven’t come to a conclusion on the application of the presumption rules of fulfillment of obligation to disclose that is aimed at changing the structure of the dealing prudence and care reasonably. Therefore, this article collects the controversies in the dispute of obligation of disclosure in judicial practice and analyze the overall condition of this kind of cases by focusing on the rate of appealing and commuting、areal distribution and judicatory grounds. By using the analytical method of contract principle、sociology of law、economics of law and social ethics integratedly,this article hope to come to a conclusion and provide a unified judgmental criterion for the judicial practice.In addition to the introduction of this article,the text is divided into three parts,The first part analyzes whether special terms are the object of obligation to disclose. Though the “compensation arrange within medical insurance” term has some similarities with other terms in medical insurance, it’s a term in commercial insurance in substance, which means it’s the object of obligation of disclosure. Terms which contains liability exemption with prohibitive provisions of the laws and administrative regulations are liability-exempted terms, but they are not the object of obligation of specific disclosure.The second part analyses the legal effect of proposer’s statement. When the insurer has provided the standard terms and fulfilled the prompt obligations, proposer’s statement can exempt the obligation of insurer to expressly explain the liability-exempted terms. The proposer’s statement is part of the insurance contract, which is the true declaration of intention of the proposer. Therefore, the proposer’s statement can bind both parties and exempt the obligation of insurer to expressly explain the liability-exempted terms.The third part is about the presumption rules of fulfillment of obligation of disclosure. When the proposer is a professional insurance costumer, the insurer can fulfill his disclosure obligation after providing standard terms and prompting by inferring that the proposer understand the meaning of liability-exempted terms. The professional insurance costumer can be divided into general professional insurance costumer and special professional insurance costumer.