Study On The Enforcement Of The Cash Value Of Life Insurance Policy

It has aroused widespread concern that the issues have been made about the enforcement of life insurance policy’s cash value.As the increasing of related cases and the lack of corresponding institutions,the courts in various regions often have different judgments in the same case during the trial of such cases,which will have a great impact on the stakeholders and the authority of the court’s judgment.This article first introduced an overview of the cash value of life insurance policy,with analyzing judicial practice cases,and then found the essence of the issues and made an argumentation academically.Lastly,the article tried to put forward some suggestions for solving the issues in order to guide the practice via the reference to the abroad relevant systems.The specific body part was divided into the following four chapters:The first chapter selects relevant cases to make a comparative analysis on different opinions and judgments from judicial practice.It is found that there are three matters causing the phenomenon of different judgments in the same case.The first one is whether the cash value of the life insurance policy can be the subject of enforcement?Second,what kinds of enforcement measures should be taken? Thirdly,how to balance the interests of all parties in enforcement.The second chapter draws a conclusion that the cash value is a property by presentation of its formation and function and then analyzes the enforcement of the cash value of life insurance policy theoretically.The first is about its enforceability that the right of claim for refunding cash value of applicant can be the asset of applicant when the applicant is to be insolvent by clarifying the rights owner of the cash value that the ownership belongs to the insurer and the right of claim for refunding belongs to the applicant.Meanwhile,such right is a kind of creditor’s right with no agreed performance time,which is not unenforceable property.According to the enforcement system of creditor’s right established by the judicial interpretation of the Chinese Civil Procedure Law,the claim can be the subject of enforcement.Then there is an analysis of enforcement measure.It is difficult to achieve the intended purpose of creditors if freezing measure is applied only,so it is necessary to discuss the extracting measure,which means the contract will be compulsorily terminated,and in accordance with the system,the court has the right of subrogation to terminate the contract which is not exclusive.In addition,the balance of the interests of all parties is indispensable in the process of enforcement,it is not proper and harmless in a way,however,to terminate the contract compulsorily for the surrender value.The third chapter is an investigation of the extraterritorial system,including beneficiary subrogation from German and Japanese,and the attachment exemption in America.On the one hand,in Germany,the subrogation is based on the enforceability of life insurance policy that the beneficiary can replace the right of applicant by paying a certain number of money with the consent of the applicant.On the other hand,the applicant have the right to change the type of insurance contract to avoiding attachment.In the same way,beneficiary subrogation is introduced in Japan to make the contract sustaining by stopping terminating.And the property enforcement exemption in United States Bankruptcy Code,as a social public policy to protect debtors and their families,stipulates that the total exemption is no more than $ 12,625 for property rights on the policy.The above two systems can be used for reference to solving the issues of enforcement of life insurance policy’s cash value in China.The fourth chapter puts forward specific proposals in solving the issues of enforcement of life insurance policy’s cash value.Firstly,establish the enforcement exemption rules of life insurance policy to meet the basic needs of the debtor and his family.Secondly,the right of subrogation to exercise policy loans will realize the interests of creditors and avoid terminating the contract.Thirdly,it not only sustain the contract and protect its reasonable expectancy interests when happening debt disputes on the applicant if the stakeholder is given the right of subrogation.