Research On Special Legal Issues Of Card Electronic Policy Business

This paper consists of seven parts. The first part is the introduction, which includes the research background, issues, significance and methods of the research. Disputes in practice caused by the card electronic policy business are increasing these days. The main problems are as follows: how to deal with the situation that the insurance card was not activated, the identification of the policy holder, the imputation when the salesman of insurance card filled with the wrong information during the process of activation, the solution to the problem that the policy holder did not see the exemption clause when the salesman of insurance card activated it. Scholars have been concerned with these problems, but they have not formed a systematic point of view yet. This paper, starting from the cases, combing the existing theories about the card electronic policy business, aims at resolving the dispute in practice.The second part is the basic theory of the card electronic policy business. First, it clearly defines the concept of the card electronic policy business, which is equivalent to the card insurance business, the card business, the self-service insurance card business. The card electronic policy business is mainly based on the self-service insurance card. In terms of the type of the self-service insurance card, it has two major categories, physical and virtual insurance card. And its main feature is anonymous and transferable. The self-service insurance card can be activated in two ways, by network or telephone. Given that the most frequently used way is activation on the network, the paper will describe the online activation process in detail. It also points out that the scope of application of the card electronic policy business nowadays.The third part is the theoretical analysis framework of the card electronic policy business, based on the basic process of the business described in the second part. The key is the determination of the two acts in the business, i.e. card purchase and activation, to insure when the insurance contract is formed. Firstly, the existing views are analyzed, defined and divided into two branches, “the same contract theory” and “different contracts theory”. “The same contract theory” regards the insurance card purchase and activation as two stages entering into the insurance contract. “Card purchase concluding the contract theory” and “successful activation concluding the contract theory” are two different views of “the same contract theory”. “Card purchase concluding the contract theory” claims that the insurance contract is concluded when you buy the insurance card, while “successful activation concluding the contract theory” holds that the successful completion of activation process is the conclusion of the insurance contract, and paying for the card is just the offer of the insurance contract. “Different contracts theory” sees the card purchase and activation as two different contracts. The card purchase concludes the sales contract, and the successful activation concludes the insurance contract. According to different understandings of the relation of these two contracts, “different contracts theory” also has two subdivisions, i.e. “reservation contract theory” and “irrelevant theory”. The former advocates that the two contracts are separated but closely related, which card purchase is the reservation contract, activation is the insurance contract; while the latter contends the two contracts exist independently and unrelated. After the introduction to the controversy of these theories, it is more important to analyze and evaluate various opinions, finally weigh the pros and cons and then draw my own conclusion. “Card purchase concluding the contract theory” violates the basic principles of insurance law since the policy holder and the insured cannot be fixed in the purchase stage and the insurance contract cannot be formed at that time. “Successful activation concluding the contract theory” views the card purchase as the offer of insurance contract, activation the acceptance. If the buyer withdraws the offer before activation, the insurance card that has been sold needs to be returned. It is not conducive to maintaining the stability of the transaction. “Reservation contract theory” has a lot of problems, such as different subjects and the same consideration, although can be explained, the application is too complex. “Irrelevant theory” has overcome these problems. Combined with the credit assignment system, it is not only more accurate to locate the card purchase and activation, but also more in line with the process of the card electronic policy business. And it can explain the problem of different subjects. Therefore it is quite suitable as the basic analytical framework of card electronic policy business.Immediately after talking about the formation time, part four deals with the issues of the effective time of the card electronic policy and the commencement time of the insurance liability. After analysis of existing doctrines, this paper selects a new perspective to solve the above problems. It tries to analyze the declaration of the insurer on self-service insurance card in practice, starting from the meaning and validity, and identifies the activation time as the effective time, some time after the activation time pointed in the declaration the commencement time of the insurance liability.The following part mainly discusses the performance of duty of honest disclosure when card activation is done by others. First of all, it determines the nature of activation and agent activation in theory, regards agent activation as principal- agent behavior, and points out this behavior is neither the self-agency nor bilateral agency; therefore not banned by the agent system. And then the article discusses the specific issues of the performance of duty of honest disclosure in agent activation, to decide the attribution of liability when the agent fills with wrong information. In addition, it also points out the obligations of insurance agent in the activation process from the angle of internal relations of agent and principal.The sixth part is about the performance of insurer’s explicit explanatory duty in the card electronic policy. In accordance with the process of the card electronic policy business, it is the activation time that is the performance time of explicit explanatory duty. Besides, the analysis of the present regulations leads to a clear procedural standard of performance. After that, it analyzes the way of performance through the specific performance process in practice. Finally, it discusses the issue of how to perform the explicit explanatory duty in agent activation, in particular how to tackle the liability issue that insurance agent fails to explain the content of the web page and the policy holder are not informed.The seventh part is the conclusion, summarizing the full text.