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Discussion on the Incontestable Clause in the Insurance Law

Author: LiShuMei
Tutor: SunXueZhi
School: Jilin University
Course: Legal
Keywords: Insurance Law Non - defense Terms Legal basis. Judicial Application
CLC: D922.284
Type: Master's thesis
Year: 2011
Downloads: 227
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Abstract

Insurance Act of 2009 revised the terms of the introduction of non-defense, that is, Article 16, paragraph 3. According to the provisions, the insurer based on the insured when the insured party in violation of the principle of utmost good faith failure to fulfill the obligation of truthful disclosure to enjoy the right to terminate the contract, have lifted the day that are the subject of more than 30 days from extinguished if not exercised self-insurer know. From the date of the establishment of the contract over two years, the insurer shall not terminate the contract; insured event occurs, the insurer shall be liable for compensation or insurance payment responsibility. The terms of limiting the insurer abuse of rights, the protection of the interests of the insured party is significant, and also make up for the shortcomings of China's Insurance Law Amendment obligation system being truthfully informed previously. However, practitioners and even academic understanding of the terms of the non-defense discrepancies may lead to a different understanding of judicial application of using different criteria to decide cases. Therefore, we intend to discriminate and define the connotation of the non-defense Terms, to be studied and explained its legal basis, its possible problems in the judicial application of comparison and analysis, further refinement for non-defense provisions of the Insurance Law in China perfect to provide comments and suggestions. Text of this paper is divided into four parts, the main contents are as follows: The first part of the \non-defense provisions of the historical origins and legislative status quo. Not be a defense the prohibited defense rules and abstaining rules on terms and conditions different from the insurance law, the conscious behavior stems from the insurer to solve the crisis of the integrity of the insurance industry, experienced from the terms of the contract to the transmutation of legalizing forced Terms eventually become the world insurance law generally stipulates a system. Common Law or civil law, the vast majority of countries are required to statute law in the form of the terms of the non-defense are peremptory norms, not because of the agreement between the parties exclude the application. The second part of the legal basis of the terms \Of non-defense provisions based on the principles of honesty and credibility, weigh the insurance contract after the interests of both sides, the rationalization of the rights of the parties to make configuration, the parties in the legal status of equality and fair. Non-defense provision also reflects the principle of protection of the reliance interest, looking forward to the interests and trust interests of the insured and the beneficiary for the insurance contract is more stable. Not be a defense Terms of the scheduled period is set by the Insurance Act, the right to terminate the contract against the insurer, makes the validity of the contract earlier been determined to prevent abuse of the legal right to terminate the contract insurer can effectively curb the risk of the insured person's moral, reflects the prohibition abuse of rights principle. The third part of the judicial application of the terms of \can not be a defense-related terms and conditions applicable to the insurance period of the insurance contract, the insurance contract period is shorter than the scheduled period, only to negate the contract for non-defense provisions may not negate the \should apply to all insurance products, including property and casualty insurance. Insured party fraud insurer the right to terminate the contract, due to non-defense Terms and loss, can also be based on the right to revoke the provisions of civil law to exercise the right to revoke the right to revoke the insurer's right to terminate the contract and civil law can apply . As to whether the fraud for non-defense clause, I agree to distinguish between the claims of serious fraud and general fraud treated separately. Part IV, \China's Insurance Law provisions on non-defense terms exist: unknown defense provisions of the date of commencement of the period for non-defense terms; provide for non-defense unknown; unknown fraud applicability of non-defense provisions. The author argues that should change the law or to develop judicial interpretation, and further improve the terms of the non-defense: clearly stipulates that the Serious Fraud does not apply to non-defense clause, general fraud applicable to non-defense Terms; increase in the provisions of non-defense terms apply to the preconditions, the insured is not in arrears insurance premiums as non-defense the premise terms apply; explicitly applies to non-defense during the terms of the dangerous condition, provisions for more than two years may be a defense during the dangerous condition, in order for non-defense clause.

Discussion on the Incontestable Clause in the Insurance Law

Abstract

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