Research On Judicialapplication Of Specification Obligation Of Insurance Contract Format Clauses

An insurance contract consists of a large number of standard clauses and a small number of non-standard clauses.The unilateral determinacy of the standard clauses in advance leads to the fact that the parties to the insurance contract are not completely equal,so it sets the obligation of prompt and explanation for the insurer in order to realize the substantive fairness of both parties to the contract.Among them,the "wake-up" function of the obligation of explanation includes the prompt function of "wake-up" to a certain extent.Therefore,by focusing more on the obligation of explanation,the provisions of the Civil Code and the Insurance Law are compared,and the problems of the obligation of explanation are found through case studies.The obligation of explanation is divided into general obligation of explanation and explicit obligation of explanation in Insurance Law.Because of the nature of general obligation of explanation,the academic circle focuses on explicit obligation of explanation.The scope of performance of explicit obligation is not clear,and there are different ways for the court to determine the explicit obligation of prohibitive clauses.I think it is necessary to measure whether it needs to be clearly stated according to the degree of insurance knowledge of the insured party.There are also disputes about whether the special agreement clauses,such as the waiting period clause,belong to the scope of exemption clauses,so it is necessary to clarify how to identify the exemption clauses.The author thinks that the exemption clauses should be discriminated by taking substantive standards and combining with the provisions of the Civil Code on the obligation of explanation.Secondly,in practice,the performance standard of explicit obligation is also vague,and there are two different viewpoints in academic circles:objective theory and subjective theory.How to clarify the performance standard of insurers needs to be solved.In the field of litigation,it is not uncommon for the insurer to provide evidence.The distribution of burden of proof should not be limited to the insurer,but also involve the insurance intermediary.We should pay attention to the traces of evidence and improve the problem of difficulty in providing evidence from the way of clearly explaining the performance of obligations.Through the introduction of cases,the above three key issues are analyzed in combination with relevant judicial interpretations and the Civil Code,and based on the interpretation theory,the solutions to improve the explicit obligation are put forward,with a view to making a modest contribution to the insurer’s disclosure obligation system.