Research On The Insurer’s Right Of Rescission Under The Background Of Insurance Fraud

Article of China’s "insurance law" stipulates that the insurer has the right to terminate the contract if the applicant intentionally fails to fulfill the obligation of truthful disclosure.This right of rescission is subject to the two-year period of rescission,and will be extinguished when the insurance contract has been established for two years.At this time,even if insurance fraud is found,the insurer still needs to pay the full amount of insurance premium to the applicant according to the provisions of China’s "insurance law".The system of insurer’s right of Rescission in China is relatively simple and easy to induce the moral hazard of the insured.How to improve this system and effectively regulate insurance fraud without damaging the legitimate rights and interests of the insured has become a hot issue in the theoretical and practical circles.This paper is divided into five parts.The first part defines the relevant concepts of the insurer’s right to rescind under the insurance fraud,expounds the way,time limit and obstacles of the insurer’s right to rescind,and points out that the current system of the insurer’s right to rescind is unreasonable,which easily leads to the moral risk of the insurer,provides an opportunity for insurance fraud and damages the legitimate rights and interests of the insurer.In the second part,it puts forward two disputes about the insurer’s rescission right under the background of insurance fraud.One is whether the insurer can choose to exercise the cancellation right in the civil law after the cancellation right is eliminated.The former thinks that the insurer should have the right of cancellation when there is fraud.The latter believes that the recognition of the insurer’s right to rescind fraud will destroy the basic framework of the system of the right to rescind insurance law and make the right to rescind void.In practice,the draft of judicial interpretation of Insurance Law(3)also listed two different views on this issue,but the final judicial interpretation deleted the relevant content.The second dispute is whether insurance fraud should be excluded when the exclusionary period rule is applied to the insurer’s rescission right.There are two kinds of views in the theoretical circle,namely "exclusion theory" and "application theory",which support and oppose the exclusion of insurance fraud respectively.The third part analyzes the above disputes and draws a conclusion.First,whether the insurer can apply the cancellation right.According to the principle that the special law is superior to the general law,the right of rescission and the right of rescission are consistent with the premise of applying this principle,and they do not belong to the five exceptions of the special law superior to the general law(the intersection of conflict resolution rules,the existence of directional clauses,etc.),The right of rescission of the insurance law and the right of rescission of the civil law are in accordance with the applicable conditions that the special law is superior to the general law.Secondly,whether the insurance fraud should be excluded when the exclusionary period rule is applied to the insurer’s rescission right.The exclusion of insurance fraud will lead to the insurer’s delay in performing the underwriting responsibility,which violates the original intention of Article 16(3)of the insurance law.Applying the exclusion period rule to insurance fraud is conducive to maintaining the stability of the insurance legal relationship,and there is no contradiction between the exclusion period rule and the regulation of insurance fraud.The fourth part,through the investigation of foreign legislation,drawing lessons from the rules of Germany,the United States and other more developed countries in insurance legislation,summarizes the enlightenment to improve the system of insurer’s rescission right under insurance fraud in China,including appropriately extending the period of exclusion,strengthening anti fraud efforts and paying attention to the protection of insurance consumers.The fifth part puts forward some suggestions to improve the system of insurer’s rescission right.First,extend the period from two years to five years.Secondly,the premise of applying the exclusionary period rule is that there is no insurance accident during this period.Thirdly,it distinguishes malicious fraud from general intention when the insured fails to tell the truth.Finally,it emphasizes the insurer’s obligation of explanation and underwriting,and the insurer can not exercise the right of rescission if it fails to fulfill the corresponding obligations.