The Study Of Legal Issues About Those Clauses Which Exempting The Insurer From Liability

In the judicial practice of our country. when the people’s court trail the cases about insurance contract disputes or road traffic accident damage compensation cases, the judges have different ideas about whether a clause in the insurance contract belongs to the provisions of article seventeenth of insurance law of the people’s Republic of China or not. In the theoretical circle, the scholars also have different viewpoints. To identify whether a clause in the insurance contract belongs to the provisions of article seventeenth of Insurance law of the people’s Republic of China has respect to whether the insurer should expressly explain the contents of those clauses to the insurance applicant in writing or verbally, and in relation to whether the clause is legal effect. Then it has respect to whether the insurer have the responsibility of insurance, and the insured can get compensation or not. Making the scope of the exemption clause clear has became an urgent need to address the problem of theory and practice.so this article will depart into four parts to study the exemption clauses:The first part,introduction. the author talk about why to choice the topic and the significance of the topic. then to point out the method of the study and the the innovation of the paper.The second part, theoretical controversy and legislative status. first of all, the author found the different viewpoint among scholars through comparison and analysis about the scope of exemption clause, then the author compared and analyzed the different stipulations among law、judicial interpretation and guidance document of the higher people’s courts. Finally, the author put forward the problem she will explore in this paper Based on the legislative status quo and problems existing in the judicial practice.The third part, The cognizance of exemption clauses. In this section, the author will talk about the definition of insurance liability and exemption clauses. the author fully agree with the idea that insurance liability is after insurance accident happens, the insurer shall bear the liability of compensation or payment of the insurance benefits based on the insurance contract. The author thinks that exemption clauses are not premised on assuming insurance liability. whether the insurance clause in liability exemption part, or in the other part of the insurance contract terms, or other special agreement can be seen as a exemption clause and apply to article seventeenth of Insurance law as long as it substantially reduced or exempted the liability of the insurer.at the same time exemption clauses are the clauses which Directly reduced or exempted the liability of the insurer, but the clauses which indirectly reduced or exempted the liability of the insurer are not included.The fourth part, how to set the exemption clauses into the insurance contract and how to expressly explain the contents of those clauses to the insurance applicant in writing or verbally. Firstly, the author thinks that the laws, administrative rules and regulations which prohibit the insurer shall not bear the liability,the insurer shall not sufficiently warn the insurance applicant of those clauses in the insurance application form, the insurance policy or any other insurance certificate, and need not to expressly explain the contents of those clauses to the insurance applicant in writing or verbally. But the author suggests that the insurer should be required to build the clause into the insurance contracts, and explain the contents of the contract to the insurance and remind them to know situations in which the insurer shall not compensate. For the forbidden provisions of laws, administrative rules and regulations, as an excuse free from responsibility, it should be built into the contract and the insurer shall sufficiently warn the insurance of those clauses.