Research On The Rescission Right Of Insurance Contract System

Insurance contract is a kind of civil contracts.The applicants and the insurers reach an agreement about the insurance rights and obligations voluntarily in order to to accomplish a certain interests.However,one of the parties often encounters many obstacles due to the complex and dynamic reality.It's hard to continue performing the original contract,which results in the invalidity of the insurance contract.At this time,two parties of the insurance contract can exercise the the rescission right endowed by Law or the provisions of the contract rescission clause to protect their existing interests against losses as much as possible.Insurance contract rescission right system has a quite important position of insurance law in both Continental law system and Anglo-American law system.Insurance contract termination right system is conducive to balance the interests of the two parties.It also reflects the legislators' pursuit of justice in reality of insurance contracts.Moreover,the rescission right of insurance contract system protects the real freedom of contract litigant.It's also great tool to cut loss when rights violated.Insurance contract rescission has its unique concept,distinguished with insurance contract cancellation and insurance contract invalidation.The rescission right of insurance contracts root in the regulation or the convention.But the reason of insurance contract cancellation and insurance contract invalidation could only be decided by Law.If the contract is invalid,it has no legal effect from the two sides reach an agreements.In contrast,we can not generalize the effect of the insurance contract when it's released.We can make a brief classification of variant type of the rescission right of insurance contract respectively due to their different subjects and their source,as agreed rescission right,legal rescission right and the applicant's arbitrary rescission right.Through comparative analysis of the concept and the components of the rescission right,the rescission right of insurance contract system can be divided into five dimensions,which are the subject,the condition,the time limit,the execution pattern and the legal consequences.The applicant and the insurer is the natural right of rescission,but not the only.The establishment of a death insurance contract should be agreed by the insured,so the insured has the qualification to exercise the right to terminate the contract.The inheritance of the applicant and the judicial authority may continue to exert influence until the insurance contract fulfilled.And their interests also have inseparable link with the effect of the insurance contract.Therefore,they can become the subject the rescission right of insurance contract.The insurance law has few restrictions on the agreed rescission right.If we rely solely on the autonomy of the litigant,it will inevitably lead to substantive unfairness.Because of its strong economic and professional advantages,the rescission right of insurers is strictly restricted by Law,but the insured can exercise the right to terminate the insurance contract at any time.The regulations of the time limits about the rescission right of insurance contracts are not complete.The insurer's legal rescission right belongs to the right of formation,so the law should specify specific period of its elimination.Moreover,the incontestable period of a life insurance contract should be based on the existence of the insured.The Insurance Law of our country does not provide how to exercise the rescission right to terminate the insurance contract,which should be added to the legal institutions.The Law should clear the legal effect of verbal exercise and the writing exercise in detail.For the existence of a number of policyholders,the insurance law should also standardize the impact on others when one of them exercise the rescission right.In the aspect of legal effect,the dispute focuses on the retroactive effect after the insurance contract terminated.There are three main viewpoints in the academic circles,such as affirmative theory,negative theory and compromise theory.Because the rescission of insurance contract is a fundamental reason for the loss of performance interest,the rescission right insurance contract should have retroactive effect in order to exert this function.However,there are also some contracts without retroactive effect,which make an exception of others.They are the contract of which the insurer terminate due to the fault of the insured and objective reasons.The contract of life insurance also has no retroactive effect.It is conducive to guide the insurance judicial practice more accurately to increase the relevant provisions of the rescission right of insurance contract.