The Legal Consequences Of The Loss Caused By The Insured's Gross Negligence

Article 27,paragraph 2 of China 's “Insurance Law” clearly stipulates that the insured 's intentional manufacture of an insured accident is the exclusive liability of the insurer,but there are no relevant regulations about the legal consequences of the insured accident caused by the gross negligence of the insured.Through the search of a large number of judgment results and statistical analysis,it is found that in insurance practice,the insurer almost always lists the situation of the insured as a cause of liability waiver,and most judges have not opposed such agreements.Under the circumstances that are not clearly stipulated in the "Insurance Law",the rationale of the insurer's listing of the gross negligence of the insured as a subjective exclusion danger has aroused discussions in the academic community.Therefore,it is necessary to analyze the liability exemption clause stipulated in the insurance contract.The solution of this issue will also have important significance for insurance practice.At the same time,the standard of judgment of gross negligence is also a difficult problem in practice,and the solution of this problem is of vital importance to the legal consequences of the gross negligence of the insured.Many problems reflected in judicial practice urge us to pay attention to the related issues caused by the gross negligence of the insured,so as to avoid frequent judicial disturbances such as different judgments and unjust judgments.There is also a lot of controversy in the academic circles about the liability of the insurer when the insured's gross negligence causes damage.What has surfaced is the fierce confrontation between the principle of proportional reduction and the principle of "all or nothing".To investigate the liability of the insured for gross negligence and the way to bear it,in order to clarify how the gap in the provisions of Article 27,paragraph 2,of the Insurance Law should be dealt with in practice,a statistical analysis of the case can be used.And in conjunction with relevant foreign judicial practice,carry out research on the above-mentioned related issues,and strive to provide reasonable answers to the above questions.The scope of the insured and its representatives should not include general employees,and should properly use prompts to explain the obligation to restrict theexemption clause.Due to the requirements of the attribution of the gross negligence and the principle of balance of consideration,the insurer should be able to agree in the insurance contract to exempt the insured from gross negligence,but the agreement must be specific and clear.In the absence of an agreement,the insurer shall be liable for the gross negligence of the insured;the judgment of gross negligence in trial practice shall be based on the principles of qualitative,quantitative,subjective and objective,and comprehensive consideration of multiple factors;For the insurer's liability in the event of gross negligence of the insured,under the respective insurance rules of the two major legal systems,by comparing the advantages and disadvantages of the "all or nothing" principle and the proportional reduction principle,The conclusion is that the principle of proportional reduction is the best model for bearing insurance liability.