The Liability Of The Insurer Tort Of Bad Faith And The Enlightenments To China

In insurance claims, the insured will often encounter refused payment, delay payment or less payment. Due to their own professional quality and bargain power, they often suffer losses. Many insured suffered a blow when they encountered the insured events, and they suffered another blow when their claims were rejected, they became bankrupt and suffered great mental damages. According to the traditional contract law and insurance law, if the insured bring a civil litigation, they can only get the insurance money which is early in request, and some fruits, such as interest. As for other economic losses, and the spiritual loss which take the broken of the peace of mind as the score, the traditional law has not given full relief.In the past few decades, the judicial precedent in the USA has created a kind of non-traditional tort liability type. If the malicious behavior of the insurer in claims make the insured suffer a series of damages, including the interest of the insurance money, the court may regard the action of the insurer as a tort and it is required to bear "the liability of the insurer tort of bad faith". It will be possible that the moral damage and the punitive damages can be applied in the field of insurance.In our country, the problem of the protection of the rights and interests of the insured has a long-term impact on the image of the insurance company and the development of the insurance industry. To improve of this problem, our country is used to improve the insurance company’s business requirements and increase the administrative responsibility of the insurance companies, however, the civil liability has few breakthrough. The theory of the liability of the insurer tort of bad faith in the USA has a wealth of valuable practical exploration, and has a wealth of reference value. Unfortunately, the scholars in China have little research on this problem.In this paper, I use comparative analysis method, case analysis method and other research methods to investigate the theory of the liability, including the concept, the constitutive requirements, the scope of compensation, and the burden of proof. Finally, we hope to provide useful reference to strengthen the protection of the insured in our country.The first part is an overview. The concept is from "bad faith". The new tort of bad faith is the original creation of the USA. If the insurer’s behavior is "bad faith", especially is extreme and outrageous conduct, it needs to take the liability of the insurer tort of bad faith, which is due to the tort attribute of the conduct, the application of the theory of "make the victim whole", and the infringement trend of the breach of insurance contract.The second part is the elements of constitution. The subjective characteristics of the insured whom to bear the liability are "bad faith". It needs to be distinguished from "intentional" and "malicious". In addition, the identification of the liability needs to combine the subjective and objective criteria to determine the behavior of "the tort of bad faith". The principle of proximate causes the judgment that the behavior results in harmful consequences, including insurance money, indirect economic losses and spiritual losses.The third part is the scope of compensation. The scope of compensation for the tort liability of the insurer pays great attention to the interests of the insured, including insurance money, indirect economic loss, spiritual damage compensation, punitive damages and relief costs. Each of the compensation content has its rationality and the special question which needs to pay attention.The fourth part is the burden of proof. In the liability of the insurer tort, the plaintiff is generally required to bear the full burden of proof. But considering the specific capacity of the plaintiff, the defendant should bear part of the burden of proof if necessary. According to the differences of the cases, the allocation and the extent of the burden of proof could be different. For the insurer, if it can be proved that they do not bear the insurance liability, they do not assume all liability in the proceedings, this is called complete defense. If the insurer can prove that they do not behave in "bad faith", they do not assume the liability of the insurer tort of "bad faith", this is an incomplete defense.The fifth part is the enlightenment. In the legislation, we may consider introducing the spiritual damage compensation liability of the insurer in the tort law or insurance law. We may also consider introducing the punitive damages in the insurance law. In the judicial, the judicial authorities should pay special attention to the timely performance of the insurance liability and encourage early performance. They could also encourage the restoration of the status quo, repair and replacement, etc. In the industry, insurance companies should have their own higher requirements in the whole process of the transaction and the internally piloting, the insured also need to pay attention to the self protection in the relationship.