| The warranty regime in marine insurance area came from the UK,and it has been playing an important role on keeping balance between parties' interests and improving the development of marine insurance business.However,this regime is gradually getting out of date because of the rapid development of technology.In the Insurance Act 2015 which was approved in UK several years ago,the problem that existing in the traditional warranty regime was solved in a large part.This article analyzed the background and the outcome of this reform in UK,along with the situation about the regime in theory and practice in China,to give some advices to the ongoing Maritime Law legislative amendment process in China on this regime.The article includes four parts apart from the introduction and conclusion,and the main content of each part are as follows:The first part gives a general introduction to the insurance warranty regime.The writer started with explaining the concept of "warranty",and introduced the meaning of the regime and the main idea of it.After that,the writer moved further on feature of the regime by comparing the warranty in marine insurance law with warranty in contract law,guarantee,and the duty of fair representation.Then,the writer made a review of the history of marine insurance warranty,from its birth,growing up and mature stage until it was codified by the Marine Insurance Act 1906.Besides that,the writer also introduced the type of the warranty,including the warranties of a present state and continuing warranties;and express warranties and implied warranties,etc.This part is aiming to give a general picture of the warranty regime,so there are a lot of basic knowledge about this regime.However,it is the basis to the later analysis on the problem and the improvement of this regime.The second part discusses the reform of marine insurance warranty in the UK.In this chapter,the writer analyzed the reform from three aspects.First,the writer took a research on the background of the reform,including the problem of the traditional warranty regime and the reason of that,which being the change of the situation in this area caused by the reform of technology and the change of the value goal in law,and the struggle of the English court to relieve the strictness of the warranty.From those aspects,the writer illustrated the background and the aim of the reform.Then,in the clue of the statute the Insurance Act 2015,the writer explained the main change that the new statute did,including the abolishment of the "basis of the contract" clause,the change of the effect of breaching a warranty,the introducing of "terms not relevant to loss",and the transparency requirement when ruling out the new law.In the end,the writer made a comment on the result of this reform,not only on its positive aspects but also on its defects and potential problems.This chapter contains a deep analysis on the measure and the aim of the reform in the UK,and will work as an important model when analyzing the reform in China.The third part analyzes the current situation and the problems of the warranty regime in China.This part includes two aspects,the current situation of the regime as well as the problems of the regime.While analyzing the current situation of the regime in our country,the writer made the research from three aspects,and the string of it is the making,obeying and applying of the law.The first aspect is the rules of the law in China,the second is the applying in the standard form of contracts in marine insurance business,and the last is the situation of it in cases in our country.After analyzing the situation of this regime,the writer put forward several problems that was obvious in our warranty regime,including the absence of the definition and the criteria of warranty,the weakness of the jurisprudence basis in the nature of the regime and the strictness of the effect of breaching the warranty.This part is based on the actual situation of warranty regime in China,taking a critical view of its applying situation and defects,and justified the necessity of improving the regime in China by law.The fourth part talks about the studying of the reform by the Insurance Act 2015 while making the amendment of the law in China.First,the writer discussed the necessity and the feasibility to take the new statute in the UK as an example,demonstrated the legitimacy and the reasonability of that.Then the writer brought up the basic principle that we should follow while making the amendment,to guide the process of the improvement.Then the writer came up with the specific move to improve the regime,including clarifying the concept and the criteria of the marine insurance warranty,changing the effect of breaching and adding the clause to allow the parties to rule out the law.Among that,the writer took a detailed analysis on how to change the effect of breaching the warranty in particular,including that the assured should be allowed to remedy the breach,the causation test should be introduced and the effect should be changed from automatically discharging of the liability to a suspension of the liability.Finally,the writer tentatively made the statue that could be after the amendment as an example.The main idea of the article is contained in this part.Comparing to the earlier researches,this article is unique in two aspects.First is on the method using for research.The writer took a comparative approach,laid emphasis on the background of the reform both in the UK and in China,and used a large amount of cases to illustrate the law at the same time,in order to make sure that the suggestion is suitable to the current situation in China,as well as catching up with the trend of law in the world.Second is the timeliness of the research.This article is not only based on the Insurance Act 2015,but also staying close to the principle and tendency of the "Exposure Draft of the Chinese Maritime Law" that published in 2018 by the Ministry of Transport.This is helpful to the writer to grasp the situation and the tendency more precisely,in order to make a more focused research. |
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