Study On The Insurability Of Emerging Types Of Insurance

“Emerging types of insurance” refer to insurance products the insurability of whose subject matter or underwritten risk has not been explicitly admitted or denied by Insurance Law.The legal requirements of insurability are mainly stipulated in Article 12 and Article 4 of Insurance Law.The former sets out the scope of insurable interests and subject matter of insurance(“Subject Matter”)while the latter stipulates the principle of public order and good social customs(the “Public Order Principle”).As for insurance theories,requirements for insurable risks(“Insurable Risk Requirement”),which provide additional requirements for insurability,are also deemed as factors for judging insurability.However,both the meaning of relevant stipulations of Insurance Law and the legal basis for Insurable Risk Requirements need further clarification.In terms of insurable interest and Subject Matter,this paper shows that: The elements of insurable interest shall include element of legitimacy and element of actual enjoyment of interest.Element of calculability or economic nature is not indispensable.Although sensu stricto non-legal interest does not comply with element of legitimacy,currently there is a trend of broad understanding of such element.Further,in terms of the scope of Subject Matter,the word “body” in paragraph 3 of Article 12 of Insurance Law can be interpreted broadly to include major mental interest pursuant to its teleology.With regard to the Public Order Principle,this paper demonstrates that: The following factors shall be taken into account when applying such principle:(1)whether public order or good social customs will be disturbed if the risk in question is underwritten;(2)if disturbed,whether the protection of the affected public order or social customs can be justified;(3)the reason for underwriting the risk in question.Further,gambling shall be prohibited pursuant to the Public Order Principle and “gambling proper” shall be interpreted as the proper of gambling that violates the Public Order Principle,which mainly include the following factors:(1)obtaining economic benefits from the subject matter of the contract,to which the contract subject does not have any personal interests,without any reasonable ground;(2)pursuing economic benefits merely by chance as the main purpose of the contract;(3)manufacturing risks on purpose and exerting significant negative social effect.In terms of Insurable Risk Requirements,this paper shows that: Insurable Risk Requirements can be divided into three groups:(1)those involved in the legal system directly;(2)those involved in the legal system indirectly;(3)those mainly regulated by the insurer itself.Moreover,Insurable Risk Requirements as a whole is an order which has formed spontaneously and has constituted normative expectation.However,it is not necessary to make laws to include all the Insurable Risk Requirements.And the legal requirements with regard to the insurability of risks,including without limitation to the stipulations on insurable interest,Subject Matter and the Public Order Principle,are made in order to stabilize relevant expectations on norms.Moreover,interpretation of indefinite legal concepts by insurance regulatory authorities in the process of judging insurability may be incoherent.Besides judging by courts in a passive way,such shortcoming may be overcome by listing typical examples under such concepts by China Insurance Regulatory Commission in its regulatory documents.