On The "Accident" Identification Of Accident Insurance

Accident insurance is the most popular and influential insurance.In the Chinese insurance contract,accident insurance means suffering from outside,sudden,unexpected and disease-free injury.Though the elements of accident can be concluded from this definition,there is no concrete meaning or judgment method in laws and regulations.It leads to the argument in legislative and theory field,and different judgments on similar cases in judicial practice,which is against the development of insurance industry and judicial authority in our country.The author suggests that,the trial situation and experience require for the element theory,because we use statute law,but the meanings and judgment method should be express clearly.In addition,the insurance law principle contains in accidental death theory which is used in Anglo-American law system should be learnt,and it is helpful to solve the problems in our element theory,such as fuzzy object,hard to judgment,and easy to be abused.In the same time,we can use rules of evidence and burden of proof,weigh up participation of different reasons,and exclude moral judgments,to provide more guidance for accident insurance practice in China.In the first part,the author introduces basic theory of “accident” in accident insurance.Besides clearing the definition of accident insurance,judging “accident” is important to prevent insurance from being cheated,ensure the consistency of both sides of the contract,and when there is a dispute,there is law to follow.But the judgment of “accident” is confusing in legislative and theory field now,and there are even different judgments on similar cases in judicial practice.It is necessary to study the “accident” in accident insurance.In the second part,the author introduces element theory of judging accident,which is the common method in Civil Law System.The “accident” appointed in Chinese insurance contract is emphasis,and the content of element theory in Germany,Japan,Taiwan is assist.The element in our country has disadvantages,such as fuzzy object,difficult to judge,easy to be abused by insurers.In addition,causality should not be treated as an element of accident.In the third part,the author introduces accidental death theory and accidental means theory,which is the common method in Anglo-American law system and the most popular theories in theory field.In the essay,the definition and disadvantages of both theories will be explained.Although accidental death theory is not perfect,it is worth to learn,because it is easy to judge,and is conform the aims of Insurance Law.We can combine element theory and accidental death theory by rules of law to judge accident.In the fourth part,the author proposes to use some assistant methods to judge accident.First,pay attention to the professional evidence,such as medical history records and death certification,and the part lead to the impossibility of autopsy shall bear the unfavorable legal consequences.Second,in the cases in which causes are not clear enough,the influence of each cause should be considered.Third,eliminate moral judgments,which means moral element should not be taken into account when we judge accident.