| This paper intends to conduct empirical analysis on disclaimer clauses of Commercial Motor Vehicles Third Party Liability Insurance reviewed by the court, and to analyse whether the cause for judgements on effectiveness is rational. Addition to the introduction, the text is divided into three parts:The first part is about the basic situation of the court's judgements analysed. In this paper, I chose the extensively applied "Basic Provisions of the Commercial Motor Vehicle Insurance Sector(A section)" as the object of study and selected a total of 427 cases by searching keywords such as "motor vehicle third party liability insurance clause Article V" "motor vehicle third party liability insurance clause Article VI", "motor vehicle third party liability insurance clause Article VII". Among those cases, the fifth article of appeal constitutes 50%, with rate of negative terms of 66.67%, Article VI of Appeal is 43.63%, with 27.45% rate of negative terms, Article VII of Appeal is 29.76%, with the terms of the negative rate of 23%. Court, in review of effectiveness of disclaimer clauses, mainly applies obligation of explicit explanation, severely unfair disclaimer rule and unfavorable interpretation rule. Among them, the number of the cases applied Obligation of Explicit Explanation is up to 401, accounting for 93.91% of all sample cases; severely unfair disclaimer rule is 12, accounting for 2.81% of all sample cases; unfavorable interpretation rule is 14, accounting for 3.28% of the sample cases.The second part is about analysis of the cases in which obligation of explicit explanation applied. In order to eliminate asymmetric information between the insurer and the insured, fulfilment of the obligation requires the disclaimer clause be obviously prompted on insurance certificates, and the insurer should explicitly state that in written or oral form. For instance, Disclaimer in bold, significantly different from other text, can be deemed to perform the obligation; Professional policyholders as a party can reduce the degree of fulfillment of the obligation. In practice, the courts should prevent misapplying the obligation because of illusion of its fulfilment or the system.The third part is about analysis of the cases in which severely unfair disclaimer rules applied. Judges hardly apply this rule properly because of his prejudice. Fulfilment of this rule should be subject to legitimacy and rationality. According to this rule, towing uninsured vehicle compulsory insurance deductible, relatives and indirect losses deductible provisions should not be recognized as a serious unfair terms. Judges should not adjudicate this kind of cases only according to their own life experience, and values.The fourth part is about analysis of the cases in which unfavorable interpretation rule applied. In applying this rule the court should follow sequentially objectivity, rationality, and cannot be excluded by use of other criteria of interpretation. Otherwise, it should not apply this principle. For example, dual interpretation of "pollution" is in line with rationality, so it can be deemed to perform this rule; However, the double explanation of "escape" and "passenger driver's license" does not meet this standard, because they do not comply with rationality.The fifth part is in conclusion. In practice, some judgements does not comply with the principle of insurance law by reason of abuse of Obligation of Explicit Explanation, misuse of severely unfair disclaimer rules and misapplication of unfavorable interpretation rule. |
PDF Full Text Request