Tentative Analysis On The Deficiencies And Improvement Of China's Incontestable Clause

Article 16(3)of the "Insurance Law" of China imposes relevant provisions on the incontestable clause.This clause eases the deadlock between insurance companies and the insured on claims.The first chapter is a brief introduction to the incontestable clauses.This chapter mainly summarizes the content and meaning of the incontestable clauses,and reviews the origin and development of the incontestable clauses from the necessity of non-defendant clauses and the nature evolution of clauses,etc.,from the perspective of the history of indisputable clauses.The origin and development of the inalienable provisions of each country,as well as its impact on this clause in China,pointed out that the incontestable clause is a special policy defense rule applied in the life insurance contract when it is not truthfully notified when insuring,and its purpose is to prohibit the The existence of concealment and misinformation in the insurance policy disputes the validity of the life insurance policy.The incontestable clause has a close historical connection with the warranty clause and the disclosure obligation.The second chapter deals with the problems arising from the application of the indefensible clause in China's actual judicial application.The guiding case promulgated by the Supreme Law of our country begins with the observation of the application of the indefensible provisions in practice.The guiding case clarifies that if the insured person fails to fully disclose the obligation,the duration of the establishment of the insurance contract is dragged to two years and he tries to apply the involucrative clause of Article 16(3)of the Insurance Law to evade thecancellation right of the “Contract Law”.Under the circumstances,the principle of good faith should be used in the judiciary,and the insurance contract should be invalid because of the insurer's maliciousness.However,after the introduction of the guiding case,there are still judicial decisions that do not clearly define the guiding significance.Several cases of slightly contradictory cases are sorted out in the main text,and it is confirmed that there is no clear indicator as to the cause of the conflict.When leading to judicial practice,it is impossible to judge the trade-off between the cancellation right of the "Contract Law" and the insurrection clause of the "Insurance Law."The third chapter collates the academic disputes between the incontestable clauses and the right to revoke the“Contract Law”,especially the issue of whether or not to apply the incontestable clause in the case of fraud.This problem has existed for a long time,and related issues have been debated in Germany and Taiwan.There are two basic viewpoints on the theoretical circle of this issue: one is “exclusion” and the other is “choice of choice”.“Excluded” thinks that the “Insurance Law” is a special law,and the “Civil Law” is a general law.According to the principle that the special law is applicable to the general law in priority,the application of the“Civil Law”should be ruled out.“Choices”argues that both the insurance law and the contract law are not the relationship between the special law and the general law,but the competing rights.When two rights exist at the same time,the insurer should be given the option to exercise the right.The fourth chapter is the analysis of the indisputable clauses in the insurance law of our country.This chapter focuses on interpreting the insurability clauses in China's insurance contracts,and simply comparing the differences between China's inalienable defense clauses and indispensable clauses in foreign insurance contracts,reflecting on the practical effects of the indisputable clauses,and evaluating and analyzing the progress of non-defences.Imperfections,given reform opinions.