Research On The Effectiveness Regulation Of Insurance Standard Clauses

The regulation of the effectiveness of standard terms in the general civil field mainly achieves the purpose of hierarchical regulation of the effectiveness of standard terms by successively applying subscription control and content control.When undertaking the same effectiveness review method,the standard terms of insurance contract require the insurer to undertake strong prompt and clear explanation obligations in legislation due to the obscure terms of insurance contract and strong professional attributes.Article 17 of the insurance law is too heavy on the obligation of clarification,which leads to a large number of standard terms being excluded from the contract when they are set into the control link in judicial practice.At the same time,it actually ignores the substantive review of the content of standard terms in Article 19 of the insurance law.Starting with the typical insurance contract in life-motor vehicle insurance contract,this paper first explains the legitimacy of the standard terms in the insurance contract.At the same time,it explains the logical dilemma and interpretation dilemma of the effectiveness review method of the insurance standard terms in judicial practice.The former shows that the hierarchical effectiveness review method has not played a good role together with the content control,The latter shows that under the influence of the concept of substantive justice,there are loopholes in the legal interpretation of insurance standard terms and judicial phenomena beyond the legal meaning.Therefore,it is necessary to study the effectiveness review method of insurance standard terms to alleviate the fierce contradiction between practice and theory.Secondly,it expounds the comment on the general theory of hierarchical effectiveness review of insurance standard terms,holds that the information provision obligation of the insurer is too high,and the judicial judgment will break through the legal meaning under the influence of the "concept of substantive justice",such as the review of core payment terms,and criticizes the current situation that the court extends the extension of "exemption clause" beyond the text in judicial practice.Secondly,for the content control,it focuses on the discussion of "unreasonable" elements.At the same time,it should be combined with the basic principles and technology of insurance,rather than the identification of insurance standard terms in judicial practice,which is too tangled in the identification of exemption clauses and ignores whether it is reasonable or not.And hope to learn from the experience of extraterritorial law to make the organic combination of subscription control and content control effective.Because it is difficult for judges to judge whether effectiveness review is needed by virtue of their prior experience,and to "screen" whether it is a provision requiring effectiveness control by using an analysis method similar to Article 19 of the insurance law in advance,the entry control and content control are questioned and overhead.In fact,the reason is that the current system completely separates the entry control and content control,and they are difficult to coordinate and work together.In contrast,the new development of the regulation mode of "abnormal clause" in the civil law system and the "principle of reasonable expectation" in the common law system all comprehensively consider the substantive balance of payment and the formal way of contract provision,which undoubtedly provides a new idea for the system design of our country.Finally,it is a reasonable idea for the systematic expression of the effectiveness review of insurance standard terms.Firstly,in view of the previously proposed logical dilemma,we can refer to the parallel control of general civil legal acts on the obligation of providing information and the balance of payment,understand the effectiveness control mode of standard terms in the current legal provisions,and after the review of the minimum standards of rights and obligations undertaken in Article19 of the insurance law,Then review whether it complies with the prescribed control and complements the expression of intention of the opposite party.Secondly,I put forward my personal opinions on the relevant legal interpretation methods.Finally,I emphasized that on the basis of evaluating the rationality of the content without considering the subscription control,and combined with the basic principles of insurance,I made a typological analysis on the commonly controversial standard terms of motor vehicle insurance.Under the reality that the content review of standard terms of insurance lacks substantive judgment standards,Help the referee sort out whether the content of the common exemption clauses in the standard clauses of motor vehicle insurance is balanced,and judge whether the exemption clause belongs to "the clause that can be entered into the contract through negotiation" or "the clause that should exclude the effect even through negotiation".