Research Of Insurance Disclaimer In Justice

In this article,the author is starting from two cases which is cause of actions are different but the same focus of controversy, it describes the reasons of different verdict from two cases,and analysis of the key factors of the disclaimer effectiveness and identify in judicial practice,then it is pointed out the current facing-plight of these disputes and controversy in justice. Furthermore it clarify the legal characteristics、legitimacy and necessity of restricting of the disclaimer and the validity of the insurance disclaimer.About the validity of the insurance disclaimer,because insurance contract is standard terms while both sides of contract have unequal position and information,the explanation of insurance disclaimer should strictly follow with the unfavorable interpretation principle and limit interpretation principle, rely mainly on the former while the latter subsidiary. The validity of disclaimer depends on whether the insurer fulfill their obligations according to the law, the insurer can only confirm that the obligation has to be fulfilled is the insured has signed on the insurance slip in fact. From the viewpoint of maintaining the sustainable development of the insurance industry, it should put an end to the conditions that it is unsigned or substitute signature on insurance slip, while it bases on the above conditions are satisfied,the key is to consider the effect of disclaimer by existing legal provisions、compliance with the reasonable risk distribution principle、rights and obligations of equivalence theory。In judicial practice, judges must make a reasonable judgment and analysis of the above conditions,both of them are indispensable.Finally, the author gives forward suggestions for improving the regulation of insurance disclaimer at all levels.Firstly improvement in legislation which is the most urgent and have a direct impact, it’s recommended to formulate Specific regulations of form contract of insurance,and to introduce “Insurer assessments and recommendation obligation”system; Secondly,it also needs to be supervised and managed according to the judicature, industry associations, administration and other channels,They play their own characteristics to form a rational, standardized and fairm regulation of disclaimer...