Research On The Legal Issues Of The Duty Of Notification Of Risk Increase

The risk status of the subject matter insured is always in dynamic change.When the risk degree of the subject matter insured by the insurance contract increases significantly,the premium paid by the applicant or the insured is out of balance with the risk insured by the insurer,and the principle of consideration balance in the contract is damaged.Based on the principle of utmost good faith,the insured shall have the obligation to notify the risk increase.To solve a series of problems caused by dangerous information asymmetry.Article 52 of the Insurance Law of the People’s Republic of China(hereinafter referred to as the "Insurance Law")sets the obligation to notify the insured of increased risk,At the same time,in 2018,the Interpretation of Several Issues Concerning the Application of the Insurance Law of the People’s Republic of China(IV)(hereinafter referred to as the Judicial Interpretation of the Insurance Law IV)was issued to specify the criteria for determining the significant increase in risk degree by enumeration.Through the retrieval and reading of relevant cases,the following problems are summarized: first,the nature of the obligation of notice of increased risk is controversial,and the judge tends to explain the failure to perform the obligation to protect the interests of the insured through the prompt;Second,the criteria for determining whether the significant increase of risk belongs to the "significant increase of risk" are not uniform;Third,is the occurrence of the insured accident caused by the significant increase in risk? Whether there is a corresponding relationship between the two caused and caused is difficult to identify;Fourth,the provisions on the legal consequences are not comprehensive,the insured "slack" to fulfill the obligation of notification of the legal consequences of the absence.Through the analysis of the reasons,it is not difficult to find that the root cause of these problems lies in the ambiguity of relevant legal provisions,and the guidance and normative function of the theoretical basis of the system has not been fully played,and the lack of judicial determination process.In this regard,the obligation to notify a significant increase in risk should be defined as a legal obligation,that is,for objectively occurring situations,the insured should perform the corresponding notification obligation on the premise of a "significant increase" in risk.If there is no "significant increase" in the risk,there is no obligation to give notice,even if such a situation exists in the terms of the insurance contract;For the judgment of the significant increase of risk,the three elements of "importance","continuity" and "unpredictability" are introduced,the uncertain legal concept is concreted,and the problem of judicial application is solved by analogy application and consideration of legal principles.It is also necessary to classify the significant increase of risk,analyze the liability of the insurer and the insured from subjective and objective perspectives,and judge causality by reasonable use of the recency principle.In addition,it is necessary to distinguish different legal consequences according to whether the insured’s corresponding notification obligation has been fulfilled.The insurer has the right to terminate the contract or increase the premium in the case of performing the notification obligation.In the case of not performing the notification,whether to distinguish different liabilities through causation.It is also worth noting that although the rule of notification obligation of increased risk is stipulated in the insurance contract,it is not limited to this scope in practice.Whether it is life insurance or property insurance,the change of risk degree is the common feature of the insurance contract,so it is more appropriate to place the clause of significantly increased notification obligation of risk in the general provisions.