The Legal Relationship Between The Insurer's Statutory Right Of Termination And The Right To Revoke The Contract

At the time of the conclusion of the insurance contract,the insured has the obligation to truthfully inform the inquirer.When the insured fails to truthfully inform the insured or due to gross negligence,the insurer has the right to terminate the contract if it is sufficient to influence the insurer's decision to insure or increase the rate.However,the Insurance Law also stipulates that after two years of the establishment of the insurance contract,the insurer shall not terminate the contract and shall bear the insurance liability.In recent years,with regard to the situation in which the insured is not truthfully informed,the issue of the legal right of the insurer has been heated up.The focus is on when the insured person deliberately fails to perform the obligation of disclosure,if the insurer can apply Article 54 of the Contract Law after 2 years of the contract,thereby “cancelling the insurance contract within 1 year from the date of knowing or should know”There is no unified conclusion on the theoretical and practical circles.In the academic world,each doctrine has its own word,which is divided into coexistence and applicability,exclusion of applicability and eclecticism.The view of "coexistence and applicability" holds that the insurer's statutory right of rescission and the right to resign the contract constitute a relationship of competing claims;"excluding the applicable theory" considers that the relationship between the two belongs to the relationship between special law and general law,the insurer's The statutory right of rescission excludes the application of the right to cancel the contract;the “compromise” states that the insurer may choose to apply the statutory right of rescission or revocation only if the insured “intentionally” and causes the insurer to fall into error.In practice,the practice of the courts is also different.There are often different cases of different cases,and the focus is on whether the two constitute a relationship between the general law and the special law,or whether the relationship of claims is competing;It is more inclined to protect the interests of the insurer or to protect the rights of the insured,the insured and the beneficiary.The Supreme Court also tried to solve this problem through the judicial interpretation of the Insurer,but in the end it did not end.There are also differences in the practice of countries on this issue.In the case of the United Kingdom and the United States,in the case where the insured does not tell the truth,the insurer's choice is to declare the contract invalid or refuse to pay the insurance premium.For the life insurance contract,after the contract is established for a period of time(usually 2 years),the insurer can no longer defend the validity of the contract.This is the “non-defense clause” in the Anglo-American law.There are exceptions to this,but the criteria are extremely strict.In the civil law system,Germany adopted the model of the insurer's statutory right of rescission and revocation right.That is,in the case of the insured's fraud,the insurer can exercise the right of revocation,but the consequences of revoking the contract are consistent with the consequences of the dismissal.In contrast to Germany,Japan chose the right to remove the right to revoke the right to apply,no matter under any circumstances,the insurer can only cancel but not cancel the contract.In fact,by analyzing the constituent elements and legal effects of the insurer's statutory right of rescission and contract revocation,the relationship between the insurer's statutory right of rescission and the right to revocation of the contract is actually the relationship between the general law and the special law.Therefore,the current legal system in China Under the two,the two cannot be applied,and they are not in the relationship of the right to compete.However,it is because of such legislation that led to the case of insureds and third-party fraud.If the contract is established for more than two years,the insurer has no way to shake the contractual relationship and there is a situation of disappointment.On the other hand,the total amount of insurance in China has increased year by year,and the two-year indefinite period is particularly short.It turns out that if there is no insurance accident,it is difficult for the insurer to find out that the insured's fraud is not true.For the fraudulent insurance of the insured or the insured,the countries do not protect or weaken the protection,and the balance of the law does not need to be inclined to such a group.Therefore,this paper intends to analyze the relationship between the insurer's statutory right of rescission and the right to cancel the contract,through case studies,to analyze the advantages and disadvantages of the current Chinese legislation,and to learn from the foreign reasonable system,to improve the legislation of the insurance law in China's Insurance Law.Judicial trials provide reference and reference meaning.