The Restore Of Utmost Good Faith In English Marine Insurance Act

The English Marine Insurance Act of 2015 opened a new chapter on the principle of utmost good faith.It is generally believed that the principle of utmost good faith began in the British case Cartor v.Boehm in 1766.Lord Mansfield,who was called the"father of commercial law" in the United Kingdom,clearly stated in this case:"The principle of good faith prohibits either party from concealing its privately known facts."But it should be noted that Lord Mansfield used no utmost in the case.According to the research,the word "utmost good faith" is formed after 1766.The earliest use of "utmost good faith" came from the 1798 Wolff v.Horn Castle case.By the beginning of the 20th century,utmost good faith has become a widely accepted legal term in the UK and was adopted by Article 17 of MIA 1906.The first part is an overview of the principle of utmost good faith,mainly related to the origin of the principle of utmost good faith,whether there is a difference in the degree of good faith.It should be pointed out that the old Latin uberrimae fidei appeared in the title of Article 17 of MIA 1906,while the Latin was considered to be the carrier of Roman law.Therefore,many people believe that the utmost good faith should initially be derived from the civil law system rather than the purely English law.This kind of understanding is wrong.In the case of Mutual&Federal Insurance v.Municipality of udtshoorn,Judge Miller pointed out after careful examination of the Roman law literature:"The Romans are familiar with bona fides and mala fides,but have never used uberrima fidei as another kind of integrity." The uberrimae fidei is a Latin translation of the English word for utmost good faith,rather than the Latin concept,which was later introduced by the British.At this point,it is not difficult to conclude that the utmost good faith is a legal concept independently generated from the soil of English lawThe second part of this paper is mainly about the development of the principle of utmost good faith around the world.As one of the legal principles,the utmost good faith is facing certain challenges in modern society.Compared with the 17th and 18th century,shipping industry in the 21st century has undergone enormous changes.With the rapid development of science and technology and the improvement of navigation technology and shipbuilding technology,the safety of maritime transportation has been greatly improved.Even though the risk is still high,it is no longer the original "sea adventure" activity.The marine insurance industry also has developed a lot,and it is no longer a young industry.In fact,the insurance industry,including marine insurance,has become very powerful,with increasing underwriting capabilities and significantly improved risk assessment capabilities.Therefore,the principle of utmost good faith as the legal principle of insurance activities needs to evolve in accordance with changes in practice.On the contrary,in view of the fortunes of insurance contracts,in order to curb the moral hazard of the insured and the insurer and protect the healthy development of the insurance industry,we should continue to uphold the principle of utmost good faith and adapt it to the changing social and economic conditions to promote the insurance industry and make it benign runningThe third part of the paper elaborates on the constraints of the principle of the utmost good faith to the insured and the insurer.In 2015,the English Marine Insurance Law reshaped the model of "initiating the insured's initiative and supplementing the insurer's inquiry".First,the insured's voluntary notification obligation determined by MIA 1906 is retained,and the insured still has to present the risk to the insurer fairly and reasonably when insured.Second,if the insured fails to perform such an obligation,but the insurer has been given sufficient information to attract the attention of a cautious insurer,the insurer is obliged to ask further questions in order to reveal those important facts.This model of obligation to inform is considered to be a gradual change rather than a revolutionary change because it retains the substance of the obligation to inform under MIA 1906.However,the UK New Insurance Law has reduced the insured's obligation to be overburdened under the original MIA 1906 framework by setting the insurer's inquiring obligation to a certain extent;on the other hand,by requiring the insurer to take the initiative to ask,the information can also be reached.In terms of the performance of specific obligations,the UK new insurance law makes it clear that the insured is obliged to make reasonable research on possible important situations.The setting of this requirement is also a supplement to the insurer's initiative to ask the insured to provide sufficient information to the insurer through various means to help the insurer determine whether further inquiry is needed.In the determination of the scope of the insured's knowledge,the 2015 Insurance Act of the UK distinguish between individual insured and non-individual insured.In the case where the insured is an individual,the scope known to the insured is limited to the content that the insured himself knows,and also includes the range known to the insured person who is responsible for the insured event.In the case where the insured is non-individual,the insured knows the scope of the insured's senior management and the person in charge of the insured.The new insurance law provides guidance for the insured to fully perform fair and reasonable disclosure obligations when insured by clarifying the entity with the obligation to informThe fourth part of this article is mainly about the reconstruction of the remedy for breach of contract.The fifth part of the English new insurance law removes the legal consequences of the contract's original invalidity in the principle of utmost good faith in MIA 1906,which also means that the remedy of fair and reasonable representation obligations needs to be reconsidered.In terms of remedies,the English new Insurance Law proposes the concept of a qualified breach of contract and considers the subjective fault of the insured.For the default of the insured,the insurer can terminate the contract,refuse compensation,and do not need to refund the insurance premiumThe last part compares and analyzes the problems and improvement methods of the principle of utmost good faith under Chinese law from the above analysis and argumentation of this principle.Chinese current insurance law and maritime law related provisions lag behind judicial practice and are waiting for a more mature opportunity In the insurance theory and practice,it is customary to follow the theory of utmost good faith.As a result,Chinese marine insurance law cannot deeply understand and explain the principle of utmost good faith.In fact,the connotation and positioning of the utmost good faith is not very complicated,"high standard of integrity" can be interpreted as the utmost good faith,especially at the legal level.On this basis,the amendments to the Chinese Maritime Law can be supplemented by the qualifications of specific disclosure obligations,the fraudulent claims and guarantees,they are generally applicable to China's marine insurance and other commercial insurance.