The Structure Of Liability Of Insurers Bad Faith And Unfair Settlement

As a chronic malaise in the insurance industry,difficulty in settling claims cannot effect a radical care.A large part of the cause is that in the process of claim settlement,the insurer chooses to take improper claim settlement behavior to deliberately embarrass the insured in order to avoid paying the insurance amount.Losses suffered by the insurer may in turn cause additional losses to the insured.For the insured,it is bound to be dissatisfied when the insurance premiums are paid but they cannot get the compensation they deserve.When malicious and improper claims settlement by insurers becomes a common phenomenon,it not only destroys the bridge of trust between the insurer and the insured,which is not to the benefit either party,but also may adversely affect the long-term and healthy development of the entire insurance industry.Countries with a relatively mature insurance industry have paid attention to the malicious and improper claims settlement by insurers and have taken effective measures to regulate them.The more representative ones are the expansion model of liability for breach of contract led by Britain and France and the bad-faith infringement system established by the United States.However,in China,due to the short history of development of the insurance industry,it is still more concerned about how to fully mobilize the enthusiasm of insurers to activate the insurance market,and no effective regulatory measures have been adopted for malicious claims settlement by insurers,resulting in a low cost of malicious and improper claims settlement by insurers.even close to zero.Therefore,it is of urgent and important practical significance to reconstruct the responsibility structure of the insurer’s malicious and improper claims settlement.This article try to analyze and research the liability structure of the insurer’s bad-faith and unfair claim settlement from the following four parts.The first part is the determination of malicious and improper claims settlement by the insurer.First of all,it introduces the meaning of malicious and improper claims settlement by insurers as a whole,and then uses the method of splitting characters to discuss how to identify "malicious" and "improper claims" separately."Malicious" includes both intentional and gross negligence in subjective form.The determination of "malicious" should be based on a combination of subjective and objective criteria.There are various manifestations of "improper claims settlement",which can be summarized into four manifestations by summarizing the existing judicial cases.The second part discusses the necessity of constructing the insurer’s malicious and improper compensation liability,which mainly includes three reasons.First,because the insurer has malicious and improper claims due to the trend of interests.The second is that the insurer’s obligation to settle claims in good faith indicates that it should be held liable for its malicious and improper claim settlement.Third,my country’s current legal system cannot effectively regulate malicious and improper claims settlement by insurers.In the third part,on the basis of the second part,it discusses what kind of responsibility construction model should be adopted for the bad-faith and unfair claims settlement of the insurer.The bad-faith and unfair claim settlement of the insurer is essentially the concurrence of liability for breach of contract and liability for tort.Countries with more mature insurance development mainly have two models,one is the traditional expanded liability model for breach of contract,and the other is the malicious tort liability model.Chinese scholars have put forward three theories on the basis of absorbing foreign experience: the expanded liability theory for breach of contract,the malicious tort liability model.Tort liability theory and normative effect-oriented liability construction theory,among which the third theory is the best.The responsibility structure cannot stop at the choice of the responsibility model.The insurer’s compensation liability is the core of the insurer’s malicious and improper compensation liability.The insurer shall compensate the insured for property damage such as insurance money and indirect losses and non-property damage including compensation for mental damage and punitive damages for its malicious and improper claims settlement.Specifically,the insurance money includes insurance money plus interest for delayed payment,and the indirect losses are mainly lawyers’ fees,and the expenses are limited to a reasonable range,which mainly depends on the discretion of the judge.When the insured is seriously disturbed by the behavior of the insurer,he can request compensation for mental damage,and the specific amount should be determined on a case-by-case basis in combination with various factors.The application of punitive damages in the insurance industry is indeed appropriate.In the transition phase of the application of punitive damages,punitive interest rate relief measures can be considered.