Study On Cash Value Attribution Of Insurance Policy

Compared with the foreign insurance law,China's insurance law has a late development,although has made great progress,but there are still some defects,policy cash value is a more prominent problem.At present,China's insurance law and relevant judicial interpretations have not clearly defined the ownership of the cash value of insurance policies,which leads to great differences between the academic and practical circles.This paper is divided into three chapters to discuss the ownership of policy cash value,as follows:The first chapter first makes clear that the research object of this paper is the life insurance with the nature of savings,and not every policy has a cash value.Then it explains the definition of policy cash value,and through the introduction of the balanced premium system,makes clear the reasons for the policy cash value and the calculation formula.In order to further analyze the nature of policy cash value,this paper makes a comparative study of policy cash value,premium and liability reserve,and then explores the difference and connection between them,and solves the problems such as the source of policy cash value,the origin of the formula for calculating policy cash value,and when the policy cash value is generated.At last,this paper sorts out the theories about the nature of cash value of insurance policy,and finds that they are divided into two viewpoints: "theory of debt" and "theory ofexpectation right".The second chapter,from the right to terminate a contract insurance policy cash value,main complex altruism contract of insurance and often appear conflicts of interests involved,and the termination right problem of the insurance contract have a fundamental impact on the ownership of the insurance policy cash value,so this chapter respectively(successor),the underwriter to policy-holder,insurant and explore the termination right of the beneficiary.First of all,this chapter to policy-holder free exercise of any termination right to discuss whether to need to limit,then analysis the academic circles to policy-holder terminate the insurance contract after the cash value of guarantee that their differences,summed up the "policy-holder exclusive said." and "policy-holder the exclusive said" two kinds of theory,and demonstrates the reason this article agree with "policy-holder exclusive said".Secondly,this paper studies whether the heir of the policy-holder can apply the inheritance law to enjoy the right of the policy-holder's arbitrary termination.This chapter,by studying the retrieved cases,analyzes the differences of the court's view on the inheritance law applicable to the cash value of the policy,and proves the legitimacy of the heir of the policyholder to terminate the insurance contract from the perspective of "legal status".Finally,this chapter studies the rescission right of the insurer and others,questions the legal basis of article 27 of the insurance law,and demonstrates the reason why the insured and beneficiary should not enjoy the rescission right of the contract.This chapter concludes that the cash value of the policy shall be vested in the policyholder upon termination of the insurance contract,unless otherwise provided for in the contract.The third chapter looks at the ownership of policy cash value from the compulsory execution,mainly discusses the problem of policy-holder's incapacity to pay off debts,whether the court can enforce the policy cash value,and how to measure the interests between the creditor and the insured and the beneficiary.In short,it is insurance contract existence period insurance policy cash value nature andattribution problem.First of all,this chapter finds that the court has different opinions on the attribution of cash value of insurance policy through case retrieval,and compares and analyzes the different opinions of the court.Secondly,the lack of theoretical basis for the court to enforce the cash value makes it difficult to enforce the policy cash value as bank deposits or due claims,and the court has no right to enforce(subrogation)the termination of the insurance contract to enforce the policy cash value.Finally,this paper demonstrates the feasibility of the subrogation of the creditor to terminate the insurance contract.Although the expansion of the object of subrogation to realize the creditor's right is worth discussing,if the interests of the insured and the beneficiary can be considered,it is a good way to solve the problem of execution difficulty.At the end of this paper,several solutions are compared and analyzed,and finally it is concluded that the system of right of intervention should be introduced to properly solve the balance between the realization of creditor's rights and the interests of the insured and the beneficiary.