Study On The Enforcement Of Cash Value Of Life Insurance Contract

When the insured be enforced and lack of any other liability property, whether the creditor can apply to the court for enforcement of the cash value of life insurance contract so far in the legislation is not clear. There is a heated debate in the theoretical circles, and the ways of the courts to deal with this problem are not the same in practice. So the author will combing the existing theory and legal provisions and put forward his view, to provide the reference for the judicial practice and insurance law rebuilt.The first part mainly introduce the life insurance contract cash value related attributes, including the production and effect and ownership of cash value, and the right to request the return of property, cash value returned to the insured. The nature of the ownership of the cash value and the nature of the claim for return of cash value is the key to the discussion of the availability of enforcement of the cash value. “The judicial interpretation of the insurance law three” has make a provision on the issue of cash value management authority. To a certain extent, it means that the cash value can be executed.The second part demonstrates the necessity and feasibility of implementation of the cash value. In terms of the nature of the right to claim for return of cash value is a conditional claim, and our law does not prohibit the implementation of such claims. Besides, most extraterritorial legislation also support for the implementation of the cash value. Nowadays many debtors by buying insurance to avoid debt, the cash value is a necessary way to implement the regulation of such behavior. The author through the analysis and retrieval of regulations on cash value, procedures for the implementation of the depth interpretation of the existing laws and regulations and in combination with the analysis of the cash value of insurance property above, demonstrate the enforceability of the cash value.The third part is how to property implement the cash value of insurance contract. Creditor preservation is divided into repeal right and the right of subrogation. When the debtor wants to evade debts and buy insurance, creditors surely can revoke such behavior. But in non insured and beneficiary for the same subject of insurance contract, according to the third party beneficiary contract theory, right of revocation is difficult to play its due role, then we need to consider the feasibility of the creditor's right of subrogation. In addition, the termination of insurance contract is a precondition of implementation of cash value. In practice, the court executive cash value by forced the insured portion and transfer the corresponding amount. The approach amounts to creditor's subrogation shall exercise the contract right of rescission. However, the author consider that the termination right does not belong to the court.The fourth part mainly explores the cash value in the implementation of the insured and the protection of the rights and interests of the insurer and the beneficiary. The insurance contract is bound to damage the interests of the rights holder after the termination of the contract. Considering the life security of life insurance, the author suggests that in certain circumstances should be inclined to protect the rights of those people: First, in certain circumstances the principle of prohibition of abuse of rights should be apply to prevent the execution of cash value. The author also separately from the angle of the insured and the beneficiary to discuss the situation of the application of the principle. Second, legislation should be to distinguish between life insurance contract for investment saving and life security, and it should be expressly provides that the latter is prohibited to execute. Then, it is the judges' duty to determine whether it belongs to life insurance according to the types of insurance contract, payment methods and other factors.