A Judicial Empirical Study On The Principle Of Proximate Cause Of Insurance In My Country

As a fundamental principle in insurance law,the proximate cause rule,born in marine insurance law practice,was first stipulated as a statutory rule in the Marine Insurance Act 1906.Definition of proximate cause is key to it.The doctrine of causation in the primary insurance law derived from causa causans in torts,which attributes causes temporally and spatially proximate as the proximate cause.Afterwards,that proximate cause is the cause proximate in efficiency,the foundation of current proximate cause rule,turned the majority opinion.Emerging theories like Incentive Theory,Proportionality rule and the Partridge rule are believed potential to improve the proximate cause rule.But,the former two requires test in judicial practice and the Partridge rule,once prevailing in California,has been partially overruled.In the late 1990 s and early 2000 s,the number of insurance law scholars accepting the proximate cause rule significantly increased in China.Therefore,a draft of judicial interpretation was raised,which attempts to define the proximate cause rule in Chinses legislation but has stagnated.Despite of the stasis in substantive law,the proximate cause rule began to appear in judicial practice.The number of judicial documents,having rocketed in 2014,summitted in 2018.However,contrary to its popularity in judicial practice,academic research about the proximate cause rule in China has been tepid for a decade.There is no doubt that theory and practice shall be in dialectical unity.With years of practice,theory of the proximate cause rule in China deserve a rather comprehensive research.The key issue is how the proximate cause rule is wielded in judicial practice.It consists with how courts define the proximate cause rule,how proximate causes found and what hinders the proximate cause rule.Investigation has shown that most of courts hold consensus about the proximate cause rule,which determine proximate cause through decisiveness and efficiency.Also.it indicates that ambiguity from documents,supposed to provide adequate details,struggled analysis through the proximate cause rule.Three parts comprises the first chapter: origin and evolution of the proximate cause rule,current recognition about the proximate cause rule in China and problems.The part of origin and development include a holistic view of doctrine of causation,how the proximate cause rule prevails in common law and novel theories.The second part cast light on present legislation on the proximate cause rule in China.In the thrid part,problems are concisely analyzed and discussed.The second chapter consists of four parts.The first part describes source of samples and methods of sampling,qualifying subsequent analysis.The second part,in a holistic view,through analyzing samples,reveals how the doctrine of proximate cause is misused,struggles in ushering proportionality rule and threshold of proximate cause rule.The third part demonstrate how the doctrine is used in three categories of cases.The last part proposes three specific problems regarding to the previous empirical research.The third chapter illustrate application of proximate cause rule from theoretical perspective.The initial part,based on methods of finding proximate cause and newly achieved consensus on the doctrine,reveals how courts misuse the rule.Then comes discussion about impediments in measuring proportions of liability.The chapter ends up with analysis over transgression of the proximate cause rule compared to proper scope as widely held.In the final chapter,on the basis of contemporary consensus on proximate cause rule among courts in China,combining with historic development route of the proximate cause rule in America and current trend of thought about enhancement on financial consumer protection in China,how to improve proximate cause rule in China is discussed in three perspectives,including how to reach unified methods of wielding the doctrine,how to ensure adequate evidence for a court when proportional liability rule shall be used,which prejudices insurers due to lack of evidence and the scope of use of the proximate cause rule.