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Research On Application Of Law About Performance Guarantee Insurance

Posted on:2019-07-01Degree:MasterType:Thesis
Country:ChinaCandidate:Y W WangFull Text:PDF
GTID:2416330545952658Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Guarantee insurance is an important part of property insurance.With the development of market economy in developed countries,it gradually improves and provides more stable third-party safeguards than the traditional guarantee methods.It not only has a significant impact on the reform and innovation of the insurance industry,meanwhile,it plays an irreplaceable role in stimulating financing,enhancing social credit and regulating market order.In recent years,our country has actively promoted the development of the guarantee insurance business,focusing mainly on the areas of performance guarantee insurance.However,judging from the current situation of insurance legislation,theoretical research and judicial practice in our country,there is no explicit stipulation,abundant research results and uniform judicial adjudication of the performance guarantee insurance.In the theory and practice of traditional insurance law,performance insurance contract belongs to the insurance contract of the benefit of others.The debtor,as the applicant,concludes the performance insurance contract with the insurer in order to protect the creditor's rights.Therefore,the creditor is the insured.Therefore,regardless of the debtor's failure to perform the debt for any reason,the insurer bears the compensation responsibility.However,for the insurer,if the debtor is able to repay the debt without knowingly paying it back,he still has to replace the debtor to perform the obligation to the insurer,which is obviously unfair and does not meet the contingency principle of insurance accident.With respect to the requirement for the good faith principle of applicant,the traditional view is that when the insurer violates the obligation to inform in the insurance law,the insurer has no right to claim the termination of the contract in order to protect the interests of the insured,that is,the creditor,and should still assume its insurance liability.As for the legal application of subrogation claims and recourse rights,most people advocate that the subrogation system is applicable to performance guarantee insurance,and a few advocate that the guarantor's right of recourse should be applied.In short,after the insurer assumes responsibility,it has the right to legally seeks compensation to the insured person.In fact,when we study the law application of performance guarantee insurance in depth,we may find that the starting point of traditional theory may be biased.If the purpose of the performance guarantee insurance system is reduced to the realization of the creditor's claims,then the performance guarantee insurance is essentially the same as the guarantee.It is difficult to separate the two,and the design of the insurance guarantee system will lose its significance.However,if we measure the performance guarantee insurance system with the insurance law,we will find that the contractor's conclusion of the contract is in order to maintain its own insurance interest and to diversify its debt performance risk.Therefore,the performance guarantee insurance contract belongs to the benefit own insurance contract,the debtor itself is the insured of the contract,and the creditor only serves as the third party of interest.In view of the above,the risk caused by intentional behavior of the insured is contrary to the principle of contingency principle and should be excluded from the contract coverage of the performance guarantee insurance;when the insurer violates the obligation of disclosure,from the perspective of protecting the interests of third parties,under certain conditions,the insurer's right to rescission should be excluded;at the same time,the insurant should not be profitable because of his fault,so the use of contractual negligence to make it bear the corresponding adverse consequences;finally,due to the insurance accident only caused by the objective fact,the insurer also has no reason to claim compensation from the insured after taking responsibility for the insurance.If we build a performance guarantee insurance system based on these ideas,we can resolve many contradictions in current practice and benefit the long-term development of performance guarantee insurance.
Keywords/Search Tags:Performance Guarantee Insurance, Contingency Principle, Truthful Disclosure Obligation, Termination of Contract, Right of Subrogation
PDF Full Text Request
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