Research On The System Of Loan Guarantee Insurance

In the early days,the only type of insurance that carried out guarantee insurance in China was loan guarantee insurance,the most representative of which was automobile consumer loan guarantee insurance.At present,more types of insurance have been developed,but loan guarantee insurance has the largest business volume and the most disputes in guarantee insurance.Credit guarantee insurance has a similar status to life insurance and property insurance in developed countries,but under the condition that the construction of China’s social credit system does not meet the standards and relevant laws and regulations are not perfect,the development of loan guarantee insurance faces great challenges.Guarantee insurance has more advantages than guarantee,and is of great practical significance in protecting the realization of claims,while the Insurance Law does not specifically provide for loan guarantee insurance.The judicial settlement of loan guarantee insurance disputes mainly focuses on the determination of the nature and application of law of the loan guarantee insurance contract,the impact of the basic contract on the loan guarantee insurance contract,the relationship between the cooperation agreement and the loan guarantee insurance contract,and the issues related to the subrogation right of the loan guarantee insurance insurer.The imperfect credit system and the increased default risk of policyholders have led to frequent disputes over loan guarantee insurance,different ideas in practical adjudication,and the lack of relevant laws and regulations has made it impossible to form a unified adjudication standard.The phenomenon of different judgments in the same case not only affects the judicial authority,but is also not conducive to the development of loan guarantee insurance.The legal challenges in the development of loan guarantee insurance business need to be solved urgently.To establish a coordinated,unified and scientific legal foundation for resolving cases and disputes,strengthen judicial authority,and promote the healthy development of loan guarantee insurance.The specific suggestions are as follows:First,in the context of the controversy between guarantee theory and insurance theory and dualism,by analyzing the insurable risks,insurance benefits,insurance supervision,and the technicality of insurance underwriting and claims,loan guarantee insurance is defined as insurance with guarantee function,and the insurer bears the insurance liability,unless the insurer expressly agrees to bear the guarantee liability.Otherwise,the relevant provisions of the Insurance Law will be strictly applied to the dispute,and in the absence of provisions of the Insurance Law,the general provisions of the Contract Part of the Civil Code of the People’s Republic of China shall apply.Second,we should adhere to the natural direction of thinking about insurance law,take the insured as the center,and affirm the independence of loan guarantee insurance contracts.The validity of the internal agreement,the changes in the content and the fraud have no effect on the liability of the insurer.Third,business entities are for profit.In the process of conducting business conduct,business entities are more rational,and the cooperation agreement mainly stipulates the rights and obligations of both the fund provider and the insurance provider,and as the result of the market game of business entities,the parties’intentions should be respected.In the process of claim settlement,if the cooperation agreement is inconsistent with the loan guarantee insurance contract,the cooperation agreement shall prevail;If there is no agreement in the cooperation agreement or the agreement is unclear,the insurance terms shall prevail.Fourth,the subrogation right of the loan guarantee insurance insurer is a claim assignment as prescribed by law,and the transfer of rights and interests is not a necessary condition,and judicial practice should implement the natural subrogation of insurance subrogation.Fifth,under the guidance of the principle of consistency of interests of the insured,the scope of subrogation by the loan guarantee insurer should include the debtor and the guarantor of the underlying debt.We can learn from the method of signing comprehensive compensation agreements abroad,in which the insurer signs a comprehensive compensation agreement together with the debtor and other persons willing to bear responsibility for the policyholder’s default.Sixth,the scope of the amount of the insurer’s subrogation should be limited to the amount paid.The liquidated damages clause in the insurance contract is not automatically invalid.It is not appropriate for the court to join it with a subrogation action,especially where a guarantor of the underlying debt exists.The claim for liquidated damages and subrogation of the loan guarantee insurance insurer belong to different legal relationships and have different claim bases,and the insurer’s claim for liquidated damages clause should be filed and prosecuted separately.