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 Inspiration
(A) inform the obligation Elements of subjective criteria
China's "Insurance Law" under Article XVII can be seen, our legislation under the conditions that constitute violations of this obligation to take a subjective fault standard.
Is generally believed that the insurance contract, breach of this
obligation to the criteria simply be classified as intentional or negligent both cases, the insurance contract can not reflect the particularity of the greatest integrity of the contract. Insurance Law in China in the next revision and perfection, we should learn from
objectivism on the issue advanced than. This obligation should be adopted in China constitutes a no-fault standard, due to intentional and negligent without informed or not informed of these cases actually placed in contract law of fraud, may cancel the contract or the contract can be changed to adjust the system so that our obligation to inform the system really fall within the scope of its unique role to play, but worthy of the name into the inherent system of insurance law. Reposted elsewhere in the
paper for free download http://
(B) inform the scope of the obligations of the judicial confirmation of the
China's "Insurance Law" 17th Article 54th stipulates the obligation of informing our system of insurance law. From 2 we can see that our
country adopted this doctrine is to ask the scope of the system.
Yao Baoren in determining the matters to be informed whether the major events or important facts must be in accordance with the insurance of the types and content of individual insurance contracts or purpose, objective point of view the insurance technology to be evaluated. Insurance legislation in modern technology and ideas in the legislation
has undergone major changes, on the one hand, the insurance supervisory
authority stand quasi-judicial status; the other hand, by the "automatic declaration of doctrine" to the "replied asking doctrine" evolved to limit the insured's informed scope; and in order to avoid difficulties in the future event of a dispute the burden of proof, legislative requirements in writing as necessary; one step closer to who the insured to inform the major issues instructions to limit the scope of what is on major issues, if not the insurance experts and can not be clearly aware of . China's
current "Insurance Law", there is no obligation to inform the British Insurance Law, the core content - "important facts" concept. For the
important facts of the provisions are too simplistic, did not identify the specific content standards to their requirements, in particular, there is no requirement on the statutory exceptions, for any facts required by the abstract criterion to judge, virtually for specific insurance disputes solution of an obstacle. In our view, should be in our country, "Insurance
Law" to introduce the "prudent insurer" is an objective judging criteria.
(C) breach of this obligation legally binding
This obligation in the nature of prior contractual obligations, that is, the occasion of the conclusion of insurance contracts in accordance
with the basic principle of good faith and the description of place to inform, collaboration and other obligations. The obligation exists in the offer comes into effect, before the establishment of insurance contracts.
For its violation of persons, the establishment of negligence on the parties.
On the legal consequences of breach of this obligation, China mainly uses the "termination-ism" model legislation, that is, the insurer may choose to cancel the contract or through a surcharge or reducing the
amount of insurance premiums so that insurance contracts remain in force. Prior to the lifting of the exercise, insurance contracts, the establishment and effective. According to the article, for breach of this obligation applies to withdraw the system more appropriate. Breach of this obligation is a kind of prior contractual obligations that affect the true meaning of the insurer, said that flaws constitute a means to revoke the law on the way to the relief of innocent parties to revoke the contract,
the two sides back to the insurance before the state. In addition to revocation of the contract, China should adopt damages as a remedy? We believe that our current insurance law for the breach of this obligation has not been the remedy of damages, nor should adopt such a provision.
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 Jiang Chao-Guo. "Insurance Law Essays" (1), Taiwan swee Book Company, 1993. Reposted elsewhere in the paper for free download http://