On Revoking Insurance Contract Under The Condition Of Incontestable Clause

Under the background of rapidly developing of our insurance industry,the insurance company refuses to give any compensations often occurs.Due to the strict statement and warranty clause,once the applicant breach the disclosure obligation,the insurance company has the right to terminate the contract.In order to change the status quo,limit the right of termination,improve the image of insurer and promote development of insurance industry,the Insurance Law stipulates the incontestable clause.This article divides into three parts based on "the contract withdrawal according to incontestable clause.The first part is an overview of incontestable clause.It mainly introduces its relevant background knowledge,including its definition,history development and legal basis.Its states why the good faith principle,the reliance interest protection theory and negotiation ability become the legal basis of incontestable clause,which paves the way for the third part.The second part elaborates scholars and courts' main standpoints to this question at present,both at home and abroad.It falls into two sectors:one is that they affirm the insurer' s right of rescission,the other is not.The third part is the resolutions.Conforming with the incontestable clause,the insurer shall not be allowed to revoke contract.In the first place,I analyze and compare "incontestability" of incontestable clause.Then,comparing with the right of termination and the right of rescission,which in fact is the same right.According to this,excluding the application of rescission because the special law should be adopted before the common law.Moreover,I contrast the above rights' constitutive requirements and legal effects and prove the special-common relationship between them again through Mr.Huang Maorong's method.Finally,if the insurer has the right to revoke contract,it may have influence on legislative intent,which at the end declines the effectiveness of incontestable clause.