Research On The Application Of The Insurer’s Right Of Rescission In Article 16 Of Insurance Law

The obligation of truthful disclosure is an important legal system to regulate the behavior of the parties to insurance contracts and purify the insurance environment.Article 16 of China’s Insurance Law stipulates that the insurer has the right to terminate the contract when the applicant violates the obligation of truthful disclosure.At present,due to the imperfection of this provision,the following disputes are faced: First,there are differences in the determination of the constituent elements on the premise of application.Second,the key point of application is whether the insurer can apply the right of contract cancellation in case of insurance fraud.Thirdly,there are differences in the scope and effect of the application of the non-defensible clause.In this regard,combining with the basic theory and drawing on the experience of extraterritorial systems,we should improve it from the macro system and the micro norms.In the macro system,first,it should be clear that the insurer’s cancellation right excludes the application of the contract cancellation right;Second,add an exceptional application mechanism of the right to rescind "fraudulent insurance";Third,we should build a supporting moral hazard protection mechanism.In terms of micro-standards,the applicable rules of Article 16 of the Insurance Law should be optimized.First,the identification rules of the obligation of disclosure of the insured should be clarified;The second is to refine the criteria for determining the constituent elements of the violation of the obligation of truthful disclosure;Third,expand the scope of application of the incontestable clause and limit the premise of application;The fourth is to adjust the traditional "all have and nothing" rule and adopt the principle of proportional payment to improve the legal effect of the insurer’s exercise of the right of rescission.