Research On Regulating The Right Of Insured's Prior Abandonment

There are two closely related rights in insurance law,namely,insurance subrogation right and claim right.Article 61 of insurance law in our country provides that the insurer does not assume the insurance liability to pay compensation when the insured gives up damage claims after an insurance accident.In practice,however,the insured may not give up damage claims after an insurance accident,he may also do his giving-up behaviors before an insurance accident through exclusion conventions or other behaviors.The time being restricted to “after an insurance accident” is one-sided because there is no situation where the insured gives up his damage claims “before an insurance accident” in economy life at that time,causing legislators to exclude the “before an insurance accident” situation when making rules.Thus,the law should constantly overcome its lag to keep up the peace with economy life.Insurance law in our country does not include explicit articles relating to the situation where the insured gives up his damage claims “before an insurance accident”,leading to different judgments in different courts for the similar cases.As a right disposal behavior,as long as this behavior is done by a eligible subject(the insured),which is his real intentions,and is not against the interests of country,society and other people,it is legal.The insured gives up damage claims in two conditions: giving-up for price reducing or compensation obligors as the insurance applicant.It is necessary and retional to regulate the insured give up claims before an accident.If the insured gives up his damage claims before an accident,then how to secure the insurer's interests? Answers to this question are on a hot debate.There are mainly three theories: the insurer expect interests damage theory,the insured damage preventing theory,and the notify violation theory or the risk increase theory.Comprehensively considering the rights and obligations of both the insured and the insurer in the specific circumstances,it is better to combine “the insurer expect interests damage theory” and “the risk increase theory” and to divide giving-up damage before an accident into two stages — — taking the insurance contract signature time as a time point.Before signing a insurance contract,the insured's damage claims giving-up behaviors apply “the risk increase theory” while after signing a insurance contract,his behaviors apply “the insurer expect interests damage theory”.Before signing a insurance contract,the exclusion clause of the insured is that the insurance applicant does not notify the giving-up facts.After signing a insurance contract,the insurer does not assume the insurance liability to pay compensation due to the insured's giving-up behaviors,which impair the interests of the insurer.After analysis on disadvantage of law,article 61 of the insurance law in our country should be modified.there is a need for the insurance applicant to notify a damage claim giving-up fact when signing a insurance contract.After performing notification obligation,the insurer still signs the contract with the insurance applicant,the insurer shall bear the unfavorable consequences.Otherwise,the insurer can be certainly excused from liability.After signing an insurance contract,the insurer does not assume the insurance liability to pay compensation when the insured gives up damage claims.