Discussion The Incontestable Clause Of The Insurance Law From The Perspective Of Judicial Practice

The Incontestable Clause is an important clause in the field of insurance law,which has its own way in the whole field of civil law and contract law,resulting in the significance of its enduring discussion.The countries where insurance industry was mature has set limitations on the contents of Incontestable Clause,so as to balance unbalanced insurance market owing to the abuse of Incontestable Clause and combat the new problems of policy-holder malicious fraud and malicious insurance fraud arising from the abuse of Incontestable Clause.Incontestable Clause is legislated late in our country,and until now,only Article 16 of the Insurance Law makes general regulations of Incontestable Clause,which is not compatible with the rapid development of the insurance industry in China.The development of the market inevitably brings about a variety of legal issues;therefore,it is very important to discuss how to improve Incontestable Clause to make it more in line with developing market,more proactive and rational.The law guides judicial practice while judicial practice can reflect the deficiency of law.By summing up 62 civil judgments from China Judgments Online,this paper holds the point that the general legal provisions on Incontestable Clause in our country leads to the situation that the judicial practice was divided from basic principles of fairness and justice,honesty and credit in the civil law,and the functions of Incontestable Clause on the protection of the interests of the insured was excessive amplified.The two controversial issues in the judicial practice include the applicability of Incontestable Clause on malicious fraud and the concurrence of the right to revocation and cancellation in the contract,which also reflects the imperfection of the general provisions of Incontestable Clause in our country.This paper consists of four parts.Part One discusses the legal principle covered in Incontestable Clause.Incontestable Clause is a limitation on the insurer's abuse of the right to discharge of contract with the principle of utmost good faith.Any disservice by the insurer undermines the trust interests of the policyholder who concludes the contract based on the principle of good faith and disturbs the stable market order.Part Two researches Incontestable Clause in the comparative law.The author summarizes the development of Incontestable Clause in such legal systems in America,Germany and China Taiwan.Through comparison,the author holds the regional characteristics of the development of Incontestable Clause.Under the circumstances of relatively late development,Incontestable Clause in our country has general contents and still remains at the initial stage,Some problems still exist.Part Three analyzes the judicial data of Incontestable Clause in our country,which is also the focus of this paper.By utilizing China Judgments Online,the author concludes and analyzes case facts and judgment contents in the civil judgments applicable to Incontestable Clause,the controversial focus of the plaintiff and defendant.The author summarized the problem in the judicial practice.Part Four elaborates the further improvement of Incontestable Clause in our country.Through comparative analysis and judicial practice,the author gives its opinion to improve Incontestable Clause in our country and balance the interests of the insurer and policyholder,it is necessary to discuss the contract validity and eliminate the application of invalid contracts,lengthen examination duration of Incontestable Clause,eliminate the application of Incontestable Clause in the case of malicious fraud,stipulate the computation of validity of Incontestable Clause in the case of contract resumption and promote the protection of the insurer's interests under the current Incontestable Clause through the regulation of the insurer on their internal management system.