Research On Judicial Application Of The Seventeenth Article Of The Insurance Law

Originates from the general legal obligation of information disclosure of contract law,the insurer's obligation of explanation reflects the contradiction and unity of the two law values:fairness and efficiency.Internally,the insurer's obligation to explain is reflected in the response to the Quasi-normalization of standard clauses of the insurance contract.On the outside,the insurer's obligation to explain is the correction of information asymmetry.In terms of China's judicial practice,through an empirical case study of Seventeenth articles of insurance law,we can recognized that the problem of judicial adjudication involving "insurance law" article seventeenth lies in the abuses of the internal elements of insurer's obligation in the seventeenth article of the insurance law and the mixed use of the seventeenth and other clauses in the insurance law.Back to the regulation of the standard clauses in "contract law" and thus based on this theoretical basis for understanding and perfecting the obligation of the insurer,grasping accurately the Quasi-normalization of standard clauses internally,taking the correction of the information asymmetry as the form of insurance contract as the starting point externally,I suggests that the initiation mechanism of insurer's obligation to explains in the seventeenth article of insurance law should be changed from the initiative explanation to the passive explanation.Based on the above analysis of the empirical cases and the theoretical basis,as for the clarification of the obligation of the insurer stipulated in the seventeenth section of the insurance law,it should be based on the obligation of the insurer to shift from active obligation to passive obligation.and also take the following factors into consideration : reducing the cost of insurers' fulfilling obligations,improving the unity of clarity and flexibility in the performance of obligation,improving the operability of the obligation,meet the new needs of Internet insurance for explaining obligations,and emphasize the normalization of laws.Thus,this obligation system should be remould as follow :firstly,In the scope of the insurer's duty of explanation,it is more appropriate to abandoning the application of two different degree of dichotomy description obligation rules and combined it for unified explanation obligation rules act;secondly,as for the perform standard of insurer's explaining obligation,it should be the usual standard in general,complemented with subjective criteria in specific circumstances;thirdly,Under the background of the Internet,considering the characteristics of the non face-to-face contracting of Internet insurance,we should establish a consultation and return visit mechanism in the practice of Internet insurance based on the general obligation system of the insurer.As for the relationship between the seventeenth and other clauses in the insurance law:on the one hand,the seventeenth article of the insurance law is the embodiment of the entry rules of standard clauses of "contract law" in the field of insurance law.The judiciary should fully understand the three logical link insurance standard clauses regulation,and accurately grasp the difference between the three in contact;on the other hand,the exception clause of insurance clauses is a special clause in the insurance contract,the exclusion clause should not apply to the nineteenth article of "insurance law".And It is expected that the above conclusions can conducive to the accurate comprehension and application of the seventeenth article of the insurance law in the theoretical study and the judicial practice.