The Application Of The Principle Of Proportionality In Insurance Law

Insurance legal mechanism is characterized bysynergistic and opposite.Through the obligation of disclosure and the principle of reasonable expectation on policyholder and the obligation to explain and unfavorably explained principle on insurer,the mechanism constructed a bilateral obligation system.However,the judicial application ofthe traditionalindemnity principle of "all or nothing" makes this insurance mechanism being nominal,replaced it by the fact that judgesabandon the interests of one party based on their valueorientation.In order to balance the interests of insurance parties,the principle of proportionality appears in insurance judicial practice.In this context,this paper is divided into four chapters to explore the application of the proportionality principle in insurance law.Chapter one explores the theoretical basis of the principle of proportionality in insurance law.The principle of proportionality in private law originally applied to the field of civil compensation requiring civil compensation commensurate with the fault behavior to amend the principle of full compensation.The application of the proportionality principle in the insurance law is beneficial to protect the reasonable expectation and freedom of action of the policyholder,which accords with the characteristic of insurance law.Chapter two explores the application of the proportionality principle in China's insurance judicial field.By sorting out the data,it can be found that the application of proportionality principle is characterized by the concentration of applicable types,the low degree of application,and the small amount of application.The current situation of judicial application illustrates the value of establishing the principle of proportionality in theory:to balance the interests of both parties in the insurance contract in the establishment of the insurance claim and the policyholder's fault liability.Chapter three introduces the typical application of proportionality principle in foreign insurance law:the theory of causative force and the policy holder's fault liability system.As for the theory of causative force,the Anglo-American law system focuses on the rationality of its application while the continental law system focuses on its practical value and application mode.Through the introduction of the principle of proportionality,the overseas policy-holder fault liability system constructs a system independent of the general civil compensation system,but different countries still have individual differences in the choice of proportional obj ects.Chapter four constructs the applicablerules of proportionality in China's insurance judicial field.For the rule of causality,this paper holds that chain causality still applies to proximate causes,while concurrent causes apply to causal force theory.As for the policy holder's fault liability system,this paper holds that in the case of deliberate,the refusal of compensation is allowed when the causal relationship is established;in the case of gross negligence,this paper introduces the proportionality principle;in the case of general negligence,this paper requires the insurer undertakes sum compensation in order to safeguard the behavior freedom of policy-holder...