Research On The Application Of Incontestable Clause

The function and value of the incontestable clause,which is stipulated in Article 16(3)of the Insurance Law,is to impose restrictions on the insurer’s right to rescind the contract to reduce its arbitrariness in rejecting claims,and to urge the insurance company to investigate and verify the relevant circumstances in a timely manner in order to protect the interests of the other party to the insurance contract.The incontestable clause has played an important role in the people’s courts in the trial of insurance contract disputes,which has greatly eased the relationship between the parties and further laid the foundation for the benign development of the insurance industry.However,China’s research on incontestable clause is late,and the insurance law is not exhaustive,which has led to some controversies in the understanding and application of the incontestable clause,and the cooperation and connection with other systems,and thus many cases of different judgments in judicial practice.Therefore,it is necessary to discuss the relevant controversial issues and clarify the logic and laws behind them.In this paper,after sorting out the connotation,history and theoretical basis of the incontestable clause,we analyze the cases related to insurance contract disputes published on the website of China Judicial Documents since the introduction of the incontestable clause,and show the application of the incontestable clause in China and the major controversies involved.Through the statistical analysis,four major controversies are identified:firstly,the choice of application of the incontestable clause and the right of revocation in civil law under specific circumstances;secondly,whether fraudulent insurance acts should be excluded from the scope of application of the incontestable clause;thirdly,whether the application of the incontestable clause should be limited to new insurance accidents occurring after the expiration of the defensible period;and fourthly,the application of the incontestable clause in compound insurance contracts.The paper further analyzes the legal and practical bases behind these four controversial points on the basis of sorting out the relevant cases and puts forward its own opinions.Finally,the paper puts forward suggestions for the improvement of the incontestable clause in response to the above issues.First,the relationship between the insurer’s right to rescind the contract and the right of rescission in the case of fraudulent insurance should be responded to,and the application of the right of rescission should be explicitly excluded;second,fraudulent insurance should be excluded from the liability of the incontestable clause,and the scope of the elements of fraudulent insurance should be strictly limited from both subjective and objective aspects,and the judicial standard should be unified,so as to realize the principle of maximum good faith and maintain the social function of the insurance industry;third,the The so-called premise of the application of the incontestable clause has over-prevented the insured’s delay in applying for claims,so it should be clear that the incontestable clause is not based on the premise of a new insurance accident after the establishment of the contract;fourth,the rules of application of the incontestable clause after the contract is reinstated should be refined,and the starting point of the defensible period should be determined according to the actual situation;fifth,the verification obligations of the insurer during the insurance activities should be stipulated And improve the mechanism related to the access to information of insurance contracts,so as to minimize the information asymmetry and reverse the situation of leniency and strictness in the insurance industry.