Research On Freedom And Restriction Of Contract In Marine Insurance Law

As a criterion in the field of contract,the principle of freedom of contract is an important principle in private law.The principle of freedom of contract can maintain the orderly conduct of the market economy and ensure that people can carry out economic activities freely.In the area of contracts,the marine insurance contract should follow this principle from beginning to end,but at the same time it is necessary to impose appropriate restrictions on the freedom of marine insurance contracts,the absolute freedom will lead to the benefits of the Libra in favor of one party,the freedom of contract will be meaningless,therefore,the freedom of contract should be properly restricted to ensure that the parties are on an equal footing.By combing the provisions and applicable principles of the 12th chapter of<Maritime Code>,which is "Contract of Marine Insurance",this paper finds that the lag of the legal system of marine insurance in our country cannot adapt to the modernization development at present.Marine insurance needs full freedom,it needs the parties to agree on specific provisions,and more arbitrary norms are needed.At the same time,by comparing the specific provisions of<Maritime Code>and<Insurance Law>on marine insurance contracts,it is found that the unification of legal rules under the Insurance Act reflects the protection of the interests of the insured.The protection of insured persons by the<Insurance Law>is essentially a restriction on the provisions of the contract,preventing the insurer from passing the terms of the contract to make the insured person in a more unfavorable situation than the law.For marine insurance,which belongs to commercial insurance,part of the mandatory provisions of the<Insurance Law>belong to the "over-protection" insured and are not in line with the basic international practice.China's "one-way mandatory provisions" for the protection of insured persons in marine insurance will have a negative impact on the insurance industry itself,shipping enterprises and intermational trade enterprises to participate in international competition.The main conclusions reached are as follows:It is urgent for our country to sort out the relationship between<Maritime Code>and<Insurance Law>,and to use the"relationship between special law and general method" to coordinate,but the provisions of the<Insurance Law>are more mandatory provisions for the protection of consumers,which are fully applicable to marine insurance contracts,which are too restrictive for insurers and insured in marine insurance contracts and do not apply to the 12th chapter"marine insurance contracts" of<Maritime Code>,The provisions of chapter 12th of the<Maritime Code>have been amended to give the marine appointment insurance contract full freedom,the right insurer to the subject matter of the insurance may assess the residual benefit of determining whether or not to obtain the subject matter of the insurance according to the circumstances of the time,allow the parties to the insurance to freely set the presumed total loss within a certain range outside the provisions of the law,and increase the relevant provisions of the Shipowners Mutual Insurance Association in order to give the parties to the marine insurance contract full freedom.