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A Research On The Reservation Or Abolition Of The Regime Of Warranty In Marine Insurance In China

Posted on:2020-04-16Degree:MasterType:Thesis
Country:ChinaCandidate:C GaoFull Text:PDF
GTID:2416330602957957Subject:Science of Law
Abstract/Summary:PDF Full Text Request
As a tool for the insurer to control risks during the insurance contract,the regime of warranty plays an important role in marine insurance for a long time.However,with the development of science and technology,information asymmetry between the insurer and the insured is alleviated,so that warranty has been questioned because of its severe consequences for the insured.In addition,the emergence of alternative regime has led to the emergence of a complete abolition of warranty in China.Based on the objective reality of China's marine insurance and the objective needs of the revision of CMC,this paper comparatively analyzes the advantages and problems of warranty and the alternative regime.Draw the conclusion that warranty needs to be reserved and put forward reasonable suggestions for the need to improve warranty.Besides preface and conclusion,this paper is divided into four chapters:The first chapter is an overview of the disputes over the reservation or abolition of warranty in marine insurance in China.China's current regime of warranty is borrowed and incomplete.Firstly,this chapter analyzes the reasons for the disputes over the reservation or abolition of warranty in marine insurance in China.Warranty is too strict for the insured,the imperfections of China's provisions expand the application of warranty and result in the phenomenon that insurers abuse the rights.In addition to the international legislative practice of the alternative regime,It has produced different opinions in warranty.Secondly,this chapter summarizes the controversial focus of the disputes over the reservation or abolition of warranty in marine insurance in China.There are mainly three differences in the following aspects:First,whether the regime of warranty is compatible with legal system in China;Second,whether the marine insurance law should gradually converge with the insurance law;Third,whether the improvement of the law can make up for the shortcomings of warranty.The second chapter examines the reality of the implementation of warranty in marine insurance in China.It mainly starts from the main disputes of warranty in judicial practice,the main role in insurance practice,and the content of the alternative system and the rules of the referee.Firstly,conclude that the main problems in China are the identification dilemma of warranty clause and confusion of legal application.Secondly,the insurance business practice is examined.It is concluded that warranty clauses still have a positive effect on facilitating the agreement between the parties to the insurance contract.Finally,analyze the content and related cases of notice obligation of increased risk.Summarize the court rules referee of notice obligation of increased risk that may not be suitable for marine insurance:The first is whether the degree of increase in risk is significant;The second is that the insurer's burden of proof for the increase in risk is not reasonable in shipping practice;The third is that the insurer has an active obligation to explain the clause and cannot cater to shipping practice..The third chapter analyzes the advantages of reserving warranty in marine insurance in China.On the basis of the actual investigation,we responded to the focus of the disputes over the reservation or abolition of warranty in marine insurance in China.Firstly,analyzes the rationality of the warranty in marine insurance in China.Secondly,analyzes the possibility that the defects of warranty in marine insurance in China are improved by modifying the law.Finally,predict the dilemma of the abolition of warranty,it is concluded that notice obligation of increased risk needs to be adjusted before it can be applied to the marine insurance.It is more difficult than perfecting warranty in marine insurance.Perhaps lead to new problems due to incomplete provisions.This concludes that China should reserve warranty and perfect it.The fourth chapter puts forward specific suggestions for the improvement of warranty in marine insurance in China.It summarizes the perfect ideas that should enhance the operability of warranty,application of warranty clause and appropriately weaken the strict consequences of warranty.Legislative advice such as don't prescribe implied warranty,consequences of a clear breach of warranty and allow insured to bear the burden of proof for that breach of warranty clause is not related to the actual loss.And propose a revised draft of the provision.
Keywords/Search Tags:Marine insurance, Regime of warranty, Reservation or abolition, Notice obligation of increased risk
PDF Full Text Request
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