Research On The Legal System Of Guarantee Insurance

Guarantee insurance originated from US,then many Western Europe countries set up this insurance which has been quite mature now.But in China,guarantee insurance has been set up for only a few years.Comparing with guarantee insurance was limited to foreigh-related business before,the insurance company has launched a variety of guarantee insurance at present in order to satisfy the demands of different people.But it doesn't mean the development of this insurance in our country is optimistic.Nowadays,there are many disputes of guarantee insurance in theory and practice due to the lack of relevant legislation,and the most popular dispute is focus on the legal nature.There are three theories about the legal nature of the insurance contract.However,the legal nature of guarantee insurance decides which law should be adjusted and how to arrange the rights and obligations of parties,so due to the different understanding of the legal nature,it causes the judges give different sentences in similar cases.No one can deny the fact that guarantee insurance has positive function in social development.Be faced with the confusions of guarantee insurance in theory and practice,it is necessary to improve the legal system of guarantee insurance.This paper analyzes the legal nature of guarantee insurance first,draws the conclusion that guarantee insurance is a special property insurance,and Insurance Law should be applied in such case.Then analyzes the controversies which caused by the absence of legal system,and makes suggestions on how to improve the legal system of guarantee insurance.This paper is divided into five parts as following :Part one—the overview of guarantee insurance.This part tries to introduce the development of guarantee insurance in our country,although guarantee insurance showed a short-term prosperity at first,but due to the lack of legislation,the development of this insurance is not optimistic now.And guarantee insurance has positive significance in promoting trade and perfecting credit system,so it is necessary to create a good condition for the development of guarantee insurance.Part two—the disputes in legal nature.This part tries to discuss the three views on the legal nature of guarantee insurance.The guarantee theory mainly based on the similarity between guarantee insurance and guarantee,and consider that guarantee insurance is a guarantee that takes the form of insurance.The insurance theory makes a comparative analysis of guarantee insurance and guarantee in order to prove the legal nature is insurance.The neutral theory draws on insurance and guarantee to settle controversy in the legal nature.By analyzes the there views,the guarantee theory is amplify the similarity between guarantee insurance and guarantee,so it causes misunderstanding of the nature.What's more,the neutral theory can't solve the nature dispute,but it has new problem in the application of law.Therefore,guarantee insurance belong to insurance.Part three—the discussion of particularity of guarantee insurance.Through analysis the purpose of guarantee insurance,then draw the conclusion that obligor is the insured,and the obligee is nominal beneficiary who owns the insurance money.Secondly,in order to protect the function of improve credit,it is necessary to restrict the insured and the insurer from abusing the rescission right of contract.Part four—the discussion of controversial issues which caused by the absence of legal system.Because related normative documents can't regulate the insurance market,so there are many controversies in the academic and practical.This part tries to discuss controversial issues in the view of substantive law and procedural law,and these controversial issues relate to independence,the nature of cooperation agreement,subrogation right and combine the trials,etc.Part five—the advice of construct the legal system of guarantee insurance.Although promote the development of guarantee insurance needs a wide range of conditions,but improve the current Insurance Law is the key to construct the legal system.Then the basic principles of guarantee insurance needs to be explicitly stipulated through legislation,so as to solve the difficulty of law application.