| With the vigorous development of my country’s market economy over the years,as well as the significant improvement of the public’s living standards and consumption awareness,commercial insurance has increasingly occupied an indispensable position in daily life.Faced with the increasing demand for commercial insurance from consumers,insurance companies are constantly innovating and providing more diverse and comprehensive insurance products for consumers to choose from.Among them,under the background of the rapid popularization of the Internet,the self-service insurance card launched by insurance companies has attracted the favor of many consumers due to its unique business model,but at the same time,it has also caused many practical disputes because of its complex particularity.Judicial big data shows that insurance disputes caused by self-service insurance cards mainly focus on the two major issues of "determination of the establishment time of an insurance contract" and "determination of the insurer’s clear obligation to explain".These two major issues are essentially related to the issue of contracting."Determination of the time when an insurance contract is established" is related to whether the contract is concluded or not,and "determination of the insurer’s clearly stated obligations" is related to the performance of obligations in the process of contracting,and both will fundamentally affect the final validity of the contract.However,the responses to these two major issues have not formed a relatively unified view,either in theoretical research or in judicial practice.This article is based on the existing viewpoints of the academic circles,supported by judicial examples,and combined with the new background of the implementation of the "Civil Code of the People’s Republic of China",trying to analyze the above issues based on the standpoint of legal interpretation.This paper starts with the basic understanding of the self-service insurance card business,and by clarifying the basic connotation and basic characteristics of the selfservice insurance card,it is concluded that the biggest difference between the selfservice insurance card business and the traditional offline insurance model and the complete Internet insurance model is that it is a It consists of two stages of card purchase and activation,so it often has both offline and online forms.Then,by further understanding the reasons for the rise of self-service insurance card business and the scope of application,a more comprehensive basic understanding of self-service insurance cards has been established as a whole.Secondly,the different opinions of judicial organs on the determination of the establishment time of self-service insurance card insurance contracts are introduced based on typical cases of self-service insurance card disputes,and the judicial status quo of practical departments in dealing with this issue is further sorted out in combination with the retrieved judicial big data.By analyzing and commenting on the theoretical viewpoints of the academic circle one by one,it is concluded that,compared with the theory that the establishment time of self-service insurance card insurance contract is determined when the insurer collects fees and delivers the insurance card to the card buyer,the theory that the establishment time of the contract is determined when the insurance card is successfully activated and underwriting is completed is more reasonable.Thirdly,it is of great significance to understand the relationship between card purchase behavior and activation behavior in the self-service insurance card business in theory,to better understand the legal relationship in the whole transaction and the legal nature of each link.Theoretically,in addition to the view that card purchase behavior and activation behavior are regarded as a contract,there are also "reservation and contract relationship theory" and "mutually independent relationship theory" that treat the two as two contracts respectively.By comparing various viewpoints,it is concluded that both the "reservation contract relationship theory" and the "mutually independent relationship theory" have unavoidable drawbacks.Only the card purchase behavior and activation behavior are regarded as a contract,and the indirect agency system is used to explain the possible occurrences.The phenomenon of inconsistency between the purchaser and the activator can provide a smoother legal explanation.Finally,in the process of contracting the insurer,it clearly states the determination of the performance of obligations,and sorts out the actual status quo in practice through judicial precedents and judicial big data.Based on the general theory of clarifying the obligation in the insurance law,this paper analyzes the practical feasibility of the insurer’s performance of the obligation under the Internet mode,and carries out the reflection on the traditional system of clarifying the obligation in combination with the latest provisions of the standard clauses in the civil code.After systematic sorting out,it is found that the defects of the obligation to clearly explain in reality are insurmountable,and the insurer’s obligation to explain should be aligned with the relevant provisions of the "Civil Code" on standard clauses in the future. |
