On The Legal Consequences Of The Insured's Violation Of The Obligation Of Truthfulness

Based on the particularity of insurance contract,"insurance law" regulation,when signing the insurance contract formally established before the insurance contract,policy-holder insurance consumers such as one party shall have the obligation to truthfully inform,but in the actual performance of the duties,policy-holder is based on a variety of motivation will be the possibility of fraud the insurer.Throughout the whole legal system,there are a number of a variety of means of "fraud" this kind of behavior of legal regulation,have special regulation of fraud,"civil law" and "contract law",the "contract law" about "behavior person to enter into a contract fraud in the process,the Qi ZhaRen is entitled to cancel the contract" in the special provisions,and in the "insurance law",to policy-holder "fraudulent false told" the regulation is contained in article 16 of "insurance law" provisions on truthfully inform obligation of legal consequences.However,"insurance law" only stipulates the right to rescind the insurance contract,and it does not stipulate that the insurance contract can be revoked.Academic circles and judicial practice corresponding should not clear in the insurance clause in the insurant exists fraudulent false behavior when the insured person should enjoy the right of revocation of the contract law stipulates that problem debated,divided.The applicant deceives falsely the constitutive requirement of the fraud in the contract law.According to our usually understood,"fraud" refers to malice,by concealing the truth or not told the truth means of treacherous cunning cheat someone,make it into a misunderstanding and make not the behavior of real intention.It is also true that the applicant is fraudulent,but is in a special field,the insurance field,which is applicable to special contracts-insurance contracts.This undoubtedly provides the basis for the insurer to exercise the right to revoke the contract law.Constitute a policy-holder fraudulent false told one of the most basic condition is the fact that the false told also should be the important facts deliberately disobeyed inform obligation,namely "enough to affect the insurer to decide whether to accept or increase the insurance rate of the facts".From malicious extent,not only requires not inform the insurer "important facts" intentionally,also requires the malicious achieved for the society does not allow,serious harm the interests of the insured,the purpose of insurance is defrauds insurance money and request the applicant.The right of revocation in contract law has its applicable possibility.Not in favor of applicant fraud by the insurer shall enjoy the right of revocation of a large part in insurance law on termination right and the law of contract cancellation right rules,the existing law has close relation between according to the basic principles of management of special law is superior to the common law concluded that rescission should rule out the law of contract law on the application of the cancellation right."Insurance law" and "contract law" is indeed a special law and general law relationship,but it can't take it for granted that the insurance contract rescission and contract cancellation right is the relationship between general provisions and special provisions.Insurance contract rescission and contract cancellation right in legislation purpose,right attribute,exercise conditions,differences in how a period for exercising and legal consequences,so the insurance contract termination right and the right of revocation of the "contract law" on is not the relationship between the special provisions and general provisions,insurance contract termination right cannot be ruled out "contract law" on the application of the cancellation right.The insurance contract is different from the "common group" characteristic of other contracts,to protect the policyholder's fraudulent insurance behavior and not fair to other policyholders;Disobeyed inform obligation in policy-holder due to gross negligence and intentional illegal truthfully inform obligation does not constitute a fraud cases,the insurance law provisions on the period and cannot contradictory clause can still play a role;"Insurance law" did not protect malicious insurance or insurance fraud people mean,too bias in favor of the applicant,against "malicious not guaranteed upper guiding principles","insurance law" and "contract law" these two belong to "civil law" category evaluation have the same problem in contradiction between legal norms,is not conducive to safeguard the unity of the legal system,the internal logic.Finally,it can be seen that the insured fraud should not be protected,and the cancellation right in the contract law is reasonable.In Germany,Italy and Macao,some measures in the exercise of the right of revocation are worthy of our reference.German insurance law legislation,high level,can refer to countries such as Germany insurance contract law in our country legislation and termination right stipulated in the contract in our country,on the basis of defining the insurance contract cancellation right legislation,in the form of legislation to shorten the period of cancellation right of the contract,the insurer's right of revocation in judicial interpretation the burden of proof and the underwriter cancellation right to exercise legal consequences.Such advice,only hope that can promote the "insurance law" is more scientific and reasonable,to help ease the policy-holder and underwriter side of the conflict,guarantee the fair of insurance contract,maintaining the balance between them,solve the problem of insurance practice better adapt to law.