On The Incontestable Clause Of Insurance Law

Chinese people’s awareness of risk prevention is increasing,and people pay more and more attention to share their own risk through insurance.Insurance law plays an important role in people’s daily life.Due to the inherent stability and hysteretic characteristics of the law,there are often some controversial issues in the application of the relevant provisions of the Insurance Law of the People’s Republic of China(hereinafter referred to as the Insurance Law),one of which is the incontestable clause in the Insurance Law.For a long time,the judicial practice and theory of insurance law have been discussing and studying the incontestable clause of insurance law,but still have not solved some problems in application.Incontestable clause,waiver and estoppel are all important provisions in insurance law.They have their similarities and characteristics.Our country formally established the incontestable clause of insurance law in 2009.The incontestable clause is located in the "general provisions" section of the insurance contract in the Insurance Law,and the discussion on the types of insurance applicable to the incontestable clause has never stopped.In practice,the incontestable clause is generally used to solve the problems of life insurance.Health insurance and life insurance are both branches of personal insurance,and can also be applied with reference.Property insurance,casualty insurance and group life insurance each have their own reasons that the incontestable clause cannot cover them.The contents of relevant provisions of the incontestable clause in the insurance law are not specific enough,and the applicable prerequisite and exception are not clearly stipulated.Whether the applicant has insurable interests and whether he/she pays premiums will affect the validity of the insurance contract.The prerequisite for the incontestable clause to restrict the cancellation right of the applicant is the existence of the cancellation right,that is,the contract is established and takes effect.Therefore,the applicant should have insurable interests and pay premiums on time as the prerequisite for the application of the incontestable clause.In practice,there are different opinions on the situation of insurance accident occurring within two years but delayed to claim after two years.In judicial practice,there are different judgments in the same case.From the perspective of preventing the moral hazard of the insurance applicant and maintaining the order of the insurance market,the occurrence point of insurance accident applicable to the incontestable clause should be clearly after the expiry of the contestable period.There is no explicit provision in the insurance law about the insurance applicant’s fraudulent insurance,and there has been a controversy over whether the incontestable clause should be applied to fraudulent insurance.The fraud can be differentiated into general fraud and serious fraud,and the serious fraud of the insurance applicant is set as the exception of the incontestable clause.The contestable period stipulated in the law of our country is two years.Compared with the contestable period of Germany’s longest ten years and Japan’s five-year period,the length of time set in our country seems to be somewhat harsh to the underwriter.Combining with the economic and social development situation of our country,we consider to use more flexible,longer span of time to change the contestable period to current provisions,in addition,detailed and specific provisions can be made on how to continue to apply the incontestable clause to the suspended contract after its reinstatement.