Research On The Obligation Of Disclosure Of The Policyholder

In 2009, China revised Insurance Law of the People’s Republic of China (the "Insurance Law"). Among the revisions, the provision about obligation of disclosure of the policyholder in Article 16 of the Insurance Law has undergone drastic changes. Embracing some other countries’legislative experience, these changes have reflected the legislators’ value of consumer protection, and in general, laid foundation for a concise, consistent and complete system of policyholders’disclosure obligation. However, from perspectives of either legislation or judicial proceedings, it is obvious that there are ambiguities in these new provisions. These ambiguities include whether should take the insured’s awareness into consideration as the policyholder’s knowledge, how to set special regulations on the situation that the policyholder violates the obligation of disclosure fraudulently and on the identification of causality etc. All these problems, which will have serious negative effects on the development of the health insurance industry of our country, reflect the inadequacy of legislation and judicial proceedings upon system of obligation of the policyholders’disclosure.Therefore, taking comparative research and empirical research as the research methods, this paper will discuss the problems about the current disclosure obligation system and propose some solutions to these problems. The details are as following:The First Chapter introduces the origin and development of obligation of disclosure of the policyholder. This chapter briefly summarizes institutional changes of insurers’disclosure obligation in China and analyzes the nature, theoretical basis and content of this obligation.The Second Chapter compares disclosure obligation regime in China with that of other countries. This chapter analyzes disclosure obligation system of Germany and the United States and comments on the corresponding legislation of China from a comparative law perspective.The Third Chapter analyzes cases of disputes on policyholders’ disclosure obligation. This chapter summarizes the general fact patterns of these disputes. It shows such disputes in our country are simple and alike, with policyholders intentionally violating the obligation, and involving only one type of insurance. It also demonstrates that problems exist in areas such as the identification causality of subjective status of policyholder in violation of the obligation, physical examination.The Fourth Chapter provides advice on improving the current system of policyholders’disclosure obligation. Based on the analysis in previous chapters, this chapter suggests that Article 16 of the Insurance Law should consider awareness of the insured as the policyholder’s knowledge, set up special regulations regarding policyholders’intentional violations and clarify causality identification concerning rights to terminate arising from violations of the disclosure obligation. Besides, it is noteworthy that in trial judges should identify the policyholders’subjective status prudently when they violates obligation of disclosure and make the effectiveness of physical examination upon the obligation of disclosure clear, And it is need to stipulate feasible regulation for how to use incontestable clause in situation of policy reinstatement and for the connotation of waiver and estoppels clear.The innovation of this paper is reflected in the following aspects. Firstly, it is pointed out problems in judicial proceedings, namely, the inadequacy of theoretical study and legislation of system of obligation of the policyholders’disclosure. Secondly, making reference to legislation of the system in question of other countries, on the basis of the situation of China, this paper proposes localized suggestions on system of obligation of the policyholders’ disclosure of China.Overall, this paper focuses on practical problems of system of obligation of the policyholders’disclosure of China and proposes feasible solutions for the system in the purposes of providing specific guidance to legislation and judicial proceedings.