An Analysis of Insurance informed the obligation to
【Papers Key words: insurance; insurance contracts; this obligation
【Abstract】: Insurance obligations under this system is the core issue of the insurance law, national insurance legislation are all
concerned about this system right for me. China's current "Insurance Law" was enacted, relating to the obligation of disclosure of the litigation continued, the article seeks to inform the obligations of the nature, content and other issues in-depth study and reflection, with a view to make it more operational.
1 to inform the legal obligations of property
This obligation is that before the establishment of the insurance contract, the insured person's examination of insurance incurred by
description or statement of obligations.
(A) the obligation of disclosure is a statutory obligation to
There are also in the general contract the obligation of disclosure problems. Obligation of informing the insurance contract is clear that a
special insurance law, which is in other types of contracts do not have.
This obligation is a legal obligation, but the obligation can be waived by mutual agreement, is a controversial issue. Some scholars
believe that "the obligation of disclosure is required by law to be parties to insurance contracts for a certain obligation of conduct, obligations, can not refuse to perform, but can not hinder each other in performing, the two sides can not exclude that the contract obligations."
Private opinion, this obligation is To achieve the technical requirements of the insurer's obligation to set up. This doctrine in the infinite mode, if the insured person that according to their own understanding of the situation enough to calculate premium rates, you can remove the obligation of informing the insured; in inquiries, a Marxist manner, asking outside the terms of the content, as the insurer partial exemption of the obligation of informing the insured, the insurer is not listed ask if the
terms can be regarded as insurance, were all relieved of this obligation to the insured.
(B) inform the accompanying duty obligations
This obligation despite the Insurance Act stipulates that the obligation, but in a specific insurance contract, the insured fulfill the obligations of the contents are very different, and its contents to determine the main basis for good faith. In addition, this duty can not sue for performance, that is, can not sue for a discharge incidental
(C) the obligation of prior contractual obligations
"Obligation to inform the indirect obligations (the so-called
indirect obligations of persons, is subject to the law provides for certain acts without whom too, the law classes of no interest, in order to close an indirect effect of those who forced their behavior also)." Therefore, this obligation beyond the insurance contract obligations, is the first of a contractual obligation to inform the terms of the
obligation is not the terms of the contract, but should be outside the terms of insurance contracts.
Second, the evolution of this system of obligations
(A) Elements of this obligation to the issue of subjective criteria
to the traditional "objectivism" return to
Originated in the common law obligation of informing the historical development and adopted the "objectivism" principle, modern history, there had been stressed that the insured must have the subjective intent or
negligence of its constituent elements as the "subjective" tendency. But then, it also found that the traditional "objectivism," tends to be more reasonable. So, which led to the traditional "objectivism" in return.
(B) advise on the scope of the obligations of the judicial
confirmation from the traditional "infinite inform doctrine" to the "limited this doctrine" Evolution of
In the scope of this doctrine, the traditional principle of "unlimited obligation of disclosure doctrine", also known as "automatic
declaration of doctrine", its meaning as an initiative of the obligation, that is a voluntary full and accurate to each other informed of the subject matter of the insurance all the essential facts, regardless of whether the fact that people asked about the insurance. The "limited duty of disclosure" doctrine, also known as "inquiries, a doctrine" that insured only the subject of insurance the insurer asked to make a statement of the real situation, ask other than the fact that there is no
obligation to inform the insured. In this issue, the common law of the obligation of disclosure with the most advanced and most developed system of research, the formation of the "important facts (Material Fact)", "prudent insurer (Prudent Insure)" concept whereby the content of this obligation to define for the "important facts" of the misrepresentation, to the fact that the importance of standards and prudential standards for insurers, as elements of the specific content of this obligation.
(C) in violation of this obligation to be legally bound, from the traditional "invalid-ism" to "termination doctrine" Evolution of
"Termination-ism" is "invalid-ism" corresponds to, is in breach of
this obligation, the insured is not of course the insurance contract null
and void, but given the relative rights of people to remove.
Third, the insurance obligation to inform the system of legislative