On The Legal Rescission Right Of Applicant

Empower the applicant unilateral right to terminate the contract can balance and rectifythe unbalanced trading position between the applicant and the insurer. But in addition to theapplicant and the insurer in insurance contract,the insured and the beneficiary are commonand important subjects.When the applicant terminates the insurance contractdiscretionarily,the insured’s interests should also be protected,as they are the security object ofthe insurance contract.Our country "insurance law" regulates the insured’s legal rescissionright, but leaves out the insured’s rights and interests in this case.If the law allows theapplicant use the rescission right to wipe out the insurance contract relationship inadvance,not only makes the insured lose expectation interests of insurance contract,but alsoreduces the stability of the insurance contract,the function of the insurance contract and thedevelopment of insurance industry could be affected indirectly.Although our country "insurance law" has revised twice,the regulations about theapplicant’s rescission right are principled and scattered,and lack of protection for the interestsof the insured and the system is not complete.This article based on the problems existing inthe mechanism of legal termination by the applicant,combining the theory of insurance lawand contract law,using references analysis,comparative analysis,empirical analysis and othermethods,combs and analysis the applicant’s legal rescission right fully. The full text is dividedinto five parts:The first part outlines the basic theoretical issues of statutory rescission right of theapplicant. First, the concept of a statutory rescission right is introduced, which is followed bythe configuration principle upon that statutory rescission right "tends to the applicant". Finally,explains the theoretical support of statutory rescission right of the applicant based on theanalysis to adhesion and aleatory of the insurance contract.The second part is the detailed analysis to rules of exercising the applicant’s statutoryrescission right. It implores the exercising of the statutory rescission right in four aspects–the subject, scope of subrogation, time scope of exercising and ways of exercisingrespectively. Combined with China’s "Insurance Law" and the relevant provisions of the"Contract Law", the analysis of the insured institutional legal person lifting omissions andflaws 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 theinsurance contract and general contract; stresses retroactivity of the applicant exercising ofrescission right and put forward ideas for dealing with the relationship between legal interestsof others after the termination of the contract.The fourth part is the exploration of the balance between interests of the insured and theapplicant’s right to terminate. By combining the theoretical research and legislativeexperience both at home and abroad, proposes the insured’s right to know, the right tomaintain the effectiveness and the lifting of the contract claims and explores in theirrespective legal basis and implementation model for conflict between the arbitrariness of theapplicant’s right to terminate and interest of the insured, thus balance the interest of theapplicant and the insured.The fifth part is the suggestions for further perfection of the legal system of theapplicant’s statutory right to terminate in insurance contract. According to the research anddiscussion in previous chapters about the applicant’s statutory right to terminate, this chapterprovides analysis and evaluation to the provisions of the existing system and makes soundrecommendations.