On The Determination Of Shareholders’ Insurable Interest In The Company’s Property

Whether a shareholder has an insurance interest in the company’s property is not only controversial in theory,but also the results of judicial decisions in China are very different.The experience of the United Kingdom,the United States,Canada and other countries on this issue shows that,as a key jurisprudence to distinguish the statutory interest standard from the factual expectation standard,the equity insurance interest plays a decisive role in distinguishing the applicable standard of property insurance interest.The cases on equity insurance interest in China reflect that the judicial practice has not yet sorted out this issue clearly and there are still many theoretical confusions.The three current doctrines on equity insurance interests have not effectively responded to the problems arising from practice.Based on the examination of the theory and practice of insurance interests in two major legal systems,it is clear that the doctrine of insurance interests adopted by the courts determines the recognition or non-recognition of equity insurance interests.From the trend of international development in recent decades,more and more countries turn to adopt more lenient insurance interest rules and shift to an attitude of recognition of equity insurance interests.The current judicial practice on property insurance interests shows that China is in the process of transitioning the principle of insurance interests,and the recognition of equity insurance interests should be an inevitable trend.With this background,this article proposes a reflection on the practice of equity insurance interests in order to effectively deal with the theoretical confusion of equity insurance interests in China.The content of each chapter is described as follows.The first chapter is a review of the legal provisions on insurance interests and cases of equity insurance in China.This chapter summarizes the theoretical confusion of China’s current equity insurance interests on the basis of the review: on the one hand,the legal provisions on insurance interests in China leave sufficient room for judges to interpret,but at the same time,they also cause the phenomenon of inconsistent adjudication results;on the other hand,there is a theoretical confusion in the adjudication of equity insurance interests in China.In the judicial decision of affirming the equity insurance interest,some courts "simply and brutally" denied the legal personality of one-person company to seek support for its reasoning,and other courts may violate the principle of "damage filling" by determining the share of equity insurance premium.In the judicial decision to deny the equity insurance interest,the insurer’s refusal to pay after the insurance accident contradicts the previous underwriting behavior,which not only violates the principle of good faith,but also may involve the issue of reliance interest compensation.The second chapter is a discussion and commentary on the doctrine of equity insurance interest in China.There are three doctrines on equity insurance interest in China,one is the negative doctrine,which believes that shareholders have no legal relationship with the company’s property and the insurance value is difficult to determine in practice;the second is the differentiation doctrine,which believes that the shareholders should be identified according to the nature of the company’s liability and the type of insurance subject matter to determine whether the shareholders have insurance interest in the company’s property;the third is the affirmative doctrine,which believes that the equity insurance interest meets the elements of insurance interest and The third is the affirmative view that the equity insurance interest meets the requirements of insurance interest and is conducive to the development of the insurance industry.This chapter endorses the "affirmative theory" based on the review of the three theories.The third chapter discusses the influence of the development of foreign property insurance interests on equity insurance interests.Currently,the United States,Canada and other countries recognize equity insurance interests,while the United Kingdom holds a negative attitude toward equity insurance interests.The reason for the different recognition positions is that the two parties uphold different standards for the recognition of property insurance interests.It is noteworthy that in recent years,the insurance interest theory in both legal systems has paid more attention to the element of "economic interest".In common law systems,more and more countries have shifted from the position of "legal interest" to "factual expectation interest";in civil law systems,Japan and Korea have also shifted to a broad interpretation of insurance interests.The fourth chapter will discuss the natural interpretation of the principle of insurance interest in China and the inevitable trend of recognizing insurance interest in equity,and propose corresponding practical reflections.By analyzing the current cases on insurance interests,it can be concluded that the judicial practice in China has paid more attention to the role of "economic factors" in insurance interests.It is certain that,under the background of the change of insurance interest principle,it is inevitable that our practice recognizes the shareholders’ insurance interest to the company.Therefore,it is necessary to reflect on the theoretical confusion of the current judicial decision on the equity insurance,in order to solve the theoretical confusion in the decision.