Research On The Incontestable Clause In Insurance Law Of China

One of the system to restrict insurance contract rescission,incontestable clause means that the insurance company may not claim that the contract is invalid or refuse to compensate for the fact that the insurance consumers has concealed the fact or falsely reported it.The clause means that insurance contract is in force from the date after a certain period of time,the insurance contract has become a non contentious contract that the insurance company shall not exercise the right of defense when the insurance consumer fails to perform the obligation to truthfully inform the insurance company the fact and the insurance company can not terminate the contract.This clause has played an important role in limiting the right of insurance companies to terminate the contract and protect the interests of the insurance consumers.However,since the incontestable clause system has been established,although it has rich connotation and significance,legal provisions are so abstract and simple that they caused controversy and led to a lack of uniformity in the application of judicial practice guidelines.So,this paper will try combine the system origin of civil law principle and the Angio American insurance law,subsequently use the method of empirical analysis and comparative analysis to research on the theoretical basis of incontestable clause and specific issues in the application of judicial to perfect it.In addition to the abstract,introduction and conclusion,this paper consists of four parts.The first part,it includes the connotation,evolution and application of incontestable clause.In order to put forward the the problems in judicial application of incontestable clause,this paper based on the connotation of the incontestable clause,mainly analyze the waiver and estoppel rules,then expounds the origin and development of the incontestable clause to analyse insurance law in various countries,regions and our country objectively.The second part,this paper mainly discusses the theoretical basis and institutional function of incontestable clause.Incontestable clause,its theoretical basis is the principle of good faith,fair,reliance interest and reasonable expectation of insurance contract.The incontestable clause plays system function that it guarantees the insurance consumer's reliance interest,limits the insurance company to abuse the right to terminate,strictly supervises the insurance company underwriting and reshapes the image of insurance industry.The third part,specificly analyse and summarize the issues in the application of incontestable clause in the insurance law of China.Including: the scope of application of the incontestable clause;the fraudulent conduct of policy-holder whether should apply to the incontestable clause;the applicable premise of incontestable clause is whether limited that the insurance accident occurred within two years;the relationship between the right of rescission and the right to revoke the contract law;the defensible period start when the insurance contract reinstate.The fourth part,this paper puts forward quite a few suggestions to improve the application of the incontestable clause,and puts forward the establishment of the supporting mechanism.First,it is clear that the incontestable clause applies to life insurance and property insurance.Second,it is apparent that malicious insurance fraud does not apply the incontestable clause.Third,clearly stipulates that the applicaton should be limited that no insurance accident happen within two years.Fourth,to clarify the relationship between the right of rescission and the right to revoke the contract law.Fifth,to clear the starting of defensible period when the insurance contract reinstate.The supporting mechanisms: first,to strengthen the training of insurance agents management.Second,strengthen the management of underwriting business in insurance companies.Third,to establish the information sharing mechanism of insurance industry.