Study Of The Applicant’s Statutory Rescission Right

Empower the applicant unilateral right to terminate the contract can balance and rectify the unbalanced trading position between the applicant and the insurer. But in addition to the applicant and the insurer in insurance contract, the insured and the beneficiary are common and important subjects. When the applicant terminates the insurance contract discretionarily, the insured’s interests should also be protected, as they are the security object of the insurance contract. China’s "insurance law" regulates the insured’s legal rescission right, but leaves out the insured’s rights and interests in this case. If the law allows the applicant use the rescission right to wipe out the insurance contract relationship in advance, not only makes the insured lose expectation interests of insurance contract, but also reduces the stability of the insurance contract, the function of the insurance contract and the development of insurance industry could be affected indirectly.Although China’s "insurance law" has revised twice in 2002 and 2009, the regulations about the applicant’s rescission right are principled and scattered, and lack of protection for the interests of the insured and the system is not complete. This article based on the problems existing in the mechanism of legal termination by the applicant, combining the theory of insurance law and contract law, using references analysis, empirical analysis, comparative analysis and other methods, combs and analysis the applicant’s legal rescission right fully. The full text is divided into five parts:The first part outlines the basic theoretical issues of statutory rescission right of the applicant. Firstly, the concept of a statutory rescission right is introduced, which is followed by the configuration principle upon that statutory rescission right "tends to the applicant". Then, explains the theoretical support of statutory rescission right of the applicant based on the analysis to adhesion and aleatory of the insurance contract.The second part is the detailed analysis to rules of exercising the applicant’s statutory rescission right. It implores the exercising of the statutory rescission right in four aspects--- the subject, scope of subrogation, ways of exercising respectively and time scope of exercising. Combined with China’s "Insurance Law" and the relevant provisions of the "Contract Law", the analysis of the insured institutional legal person lifting omissions and flaws is given.The third part focuses on legal consequences of the exercise of a statutory rescission right of the applicant. This chapter begins with discussion of the differences between the insurance contract and general contract; stresses retroactivity of the applicant exercising of rescission right and put forward ideas for dealing with the relationship between legal interests of others after the termination of the contract.The fourth part is the exploration of the balance between interests of the insured and the applicant’s right to terminate. By combining the theoretical research and legislative experience both at home and abroad, proposes the insured’s right to know, the right to maintain the effectiveness and the lifting of the contract claims and explores in the irrespective legal basis and implementation model for conflict between the arbitrariness of the applicant’s right to terminate and interest of the insured, thus balance the interest of the applicant and the insured.The fifth part is the suggestions for further perfection of the legal system of the applicant’s statutory right to terminate in insurance contract. According to the research and discussion in previous chapters about the applicant’s statutory right to terminate, this chapter provides analysis and evaluation to the provisions of the existing system and makes sound recommendations.