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Applicability Problems Of Insurer's Right To Terminate About The Insured Violating The Duty Of Disclosure

Posted on:2021-04-20Degree:MasterType:Thesis
Country:ChinaCandidate:J Y XiaoFull Text:PDF
GTID:2416330647453909Subject:Law
Abstract/Summary:PDF Full Text Request
Insurance applicants' duty of disclosure originated from Marine Insurance Law,which was first created to protect the insurer's right to be informed.With the development and improvement of insurance industry,insurers are no longer independent individuals,but mainly insurance companies with abundant resources in the insurance industry.The insurance applicants come from different classes with all kinds of occupations,and it is impossible for the insurer to get all the important information which required for concluding an insurance contract.Besides,the object of the insurance that affects the establishment of the contract,that is,the information about the health of the insurance applicants,is basically within the control by them.Under the circumstances of mutual asymmetric information,the connotation of insurance applicants' duty of disclosure has changed,it has the function of guaranteeing the insurer's right to be informed,as well as protecting the insurance applicants' right by limiting the scope of their duty of disclosure.In the case of the insurance applicants breaching the duty of disclosure,the act in one hand may conform to the insurer's right to terminate which is stipulated in article16 of the Insurance Law,in the other hand it also accord with insurer's right to rescind under article 54 of the contract Law.This controversy presents two very different judgment results in the judicial trial,and the academia also have three main theories :"Exclusion"," Option" and "The compromise theory ".By enumerating the reasons for the respective views of "Exclusion ","Option" and "Compromise ",the main view of the scholars who are in favour of " The exclusion theory " is that the period of incontestable should be strictly applied to preclude the insurer from revoking the contract.The "The option theory" scholars hold the opposite view,that is the insurer can freely choose one of the two rights according to the autonomy of will.Scholars who agree with "The compromise theory" in general consistent with the "The option theory" scholar's position on the whole,the unique disparity is that they reckon that only in the case of insurance applicants intentional fraud can the insures choose to apply the right of rescission of contract at the same time.Through the analysis of judicial cases,applying "The compromise theory" allows the insurer to exercise the right of rescission to solve the problem,at the same time,it balances the interests of both parties,and is more in line with the overall public interest of the society.The current system of insured's duty of disclosure has clear provisions on all kinds of insurance contract.There is a specific standard on life insurance which requires the insurers to be informed of the information about the age and occupation.for the legislation does not have a clear and detailed provision under the circumstances of insurance fraud led to the lack of protection of the honest insured,and the behavior of malicious insurance cannot be well restrained.Only by allowing the insurer to exercise the revocation right can the legal system ensure the logical consistency of the evaluation of insurance fraud.However,at present,there is no clear criterion to judge the subjective state of the insured,which makes the application of revocation right controversial.Therefore,the key issue is to set up a clear distinction between intentional,gross and general negligence.In the third chapter,the article demonstrates the legitimacy of the exercise of insurer'revocation right under the incontestable period clause of the insurance law.The change of the background of the system and the mode of underwriting in China are the crutcial reasons for the revocation right to be exercised.The rule of incontestable period originated from the United Kingdom and the United States.The London insurance Company is the first one to voluntarily adopt the incontestable clause in order to attract customers to buy their insurance.The role of the incontestable clause at this time has no fundamentally difference with the rule of wavier and estoppel,hence it can be regarded as an integral part of them.After entering the time when the whole society regarded the period of incontestability as mandatory or universal law,.A change in its nature causes a clear boundary between the rule of wavier and estoppel.The legislative purpose of the incontestable period is to urge the insurer to investigate the insurance in time,so as to avoid the long-term instability of the relationship in insurance contract as well as to protect the reasonable expectation of the insurance applicants rights.The application of the incontestable period cannot be isolated nor unilaterally consider the sole provision,it need to take the whole legal norms into consideration to ensure the coordination between the norms.There are three problems that cannot be solved when strictly apply the incontestable period:Firstly,the nature of the clause and the change of operating environment are not taken into account;Secondly,it is inconsistent with the reality of our country and the practice of nuclear insurance;Thirdly,it is easy to lead to moral hazard.An important factor in the clause of incontestable period is the distinct criterion between intentional and gross negligence.The scholars of “exclusion”believe that because it is extremely difficult to distinguish between the two,we should stop the distinction and choose to apply the period of rule directly and strictly.Nowadays legislators provide for a clear distinction between intentionality and gross negligence,therefore the future direction of legislation and reform needs to strive for a clear distinction between criterion.Judicial precedents of other countries,such as Japan,has considerable reasonableness in using the frequency of visits and the profession of the insurance applicants as the criteria for distinguishing elements of measurement of intentionality and gross negligence.In addition,the performance of the insurer's obligation to explain and the influence of the medical examination on the insurance applicants' obligation to inform and disclosure can be used as the elements to judge whether they are intentional or gross negligence.These legal practice can provide valuable reference for the establishment of distinguishing criteria in our country in the future.The establishment of standard needs to consider both from policy-holder side and underwriter side.Based on the predicament of the current system of policy-holder's duty of disclosure and the application of the system in the case of insurance fraud during the incontestable period clause,from the perspective of balancing the interests of the insurer and the policyholder and ensuring the orderly operation of the insurance industry,"The compromise theory" has obvious advantages over the other two theories,so this theory should be adopted to explain the problem,and this paper also provides suggestions for establishing the standard of revocation right.
Keywords/Search Tags:Non-contestable period, The insurer's right to revoke, right to terminate, concurrence, application of law
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