The burden of proof of whether the contractual obligations are fulfilled is borne by the performing party, and the obligation to explain the exemption clause belongs to the insurer, so the burden of proof of this matter is borne by the insurer. How to accurately and reasonably define the scope of the obligation to explain the exemption clause and the proof procedure, and how to prove that the insurer has fulfilled the obligation to explain the exemption clause clearly is an urgent problem to be solved in the judiciary. This paper expounds the exemption clause, the insurer's explanation obligation and the problems existing in insurance practice, so as to help determine whether the insurer fulfills the explanation obligation of the exemption clause in judicial practice. Key words: insurance contract, exemption clause, explanation obligation 1. Exemption clause and insurer's explanation obligation Exemption clause refers to the clause in the contract that the parties agree to exclude or limit future liability. This clause promotes the success of the transaction by decomposing risks, balancing the interests of all parties. Exemption clause is an indispensable part of insurance contract, which limits the risk liability that the insurer should bear, and clarifies the risks that the insurer does not cover and the situation that the insurer does not bear the liability for compensation. On the other hand, exemption clauses are often used by the providers of standard contracts to evade their responsibilities, expand the obligations of the other party or limit the rights of the other party, thus damaging the legitimate interests of the disadvantaged party in the trading relationship. Because of this, the application of the exemption clause by law is cautious and strict. The beneficiary of the exemption clause must attract the attention of the other party when signing the contract, and explain the exemption clause in the contract, otherwise the exemption clause will not take effect. Article 39 of China's Contract Law stipulates that if a contract is concluded with standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to draw the attention of the other party to the terms exempting or limiting its liability, and explain the terms according to the requirements of the other party. Article 18 of China's Insurance Law clearly stipulates that if the insurance contract stipulates the insurer's liability exemption clause, the insurer shall clearly explain it to the applicant when concluding the insurance contract. If it is not clearly stated, this clause will not take effect. Obviously, the obligation to explain the exemption clause is the insurer's legal obligation. If the insurer violates this obligation, the exemption clause will be invalid. The reason why the insurance law stipulates this is because insurance contracts are generally standard contracts provided by insurance companies, and the contract terms contain a large number of insurance clauses, which are difficult for the insured to understand. However, the insurance company bears the burden of proof in litigation, and should produce effective evidence to prove that it has fulfilled the above legal obligations, otherwise it will bear the adverse consequences of losing the case. Second, the problems existing in insurance practice In recent years, the public's awareness of insurance has been continuously enhanced, but the competition in the insurance industry is also rapidly intensifying. Especially after joining WTO, foreign counterparts will seize the domestic insurance market, which will have a great impact on the domestic insurance industry. In this environment, many problems of insurance companies that used to focus on large-scale expansion rather than profit have become increasingly prominent, especially in the field of business marketing. In practice, there are roughly the following problems around the exemption clause: 1. The wording and meaning of the exemption clause are not clear, which is easy to cause ambiguity and misunderstanding. This is the case. Article 4 1 of the Contract Law stipulates: "If there is any dispute about the understanding of the standard terms, it shall be interpreted according to the usual understanding. If there are more than two interpretations of the standard terms, an interpretation that is not conducive to the party providing the standard terms shall be made. " Therefore, as long as this problem exists, insurance companies are faced with the possibility of taking risks and losses that they do not have to bear. 2. When insurance companies sign insurance contracts with the insured, they often fail to fulfill the obligation to explain the exemption clauses, which leads to more disputes and lower reputation. In addition to their own employees, insurance companies have a large number of insurance agents. The overall business quality of these insurance agents is not high, but they are highly mobile, often mercenary, and will inevitably violate the exhibition industry. Sometimes in order to persuade customers to buy insurance products, they often don't take the initiative to mention exemptions to customers. Once the customer is out of danger, if it is an exemption in the insurance clause, the insurance company will be far from the customer's psychological expectation when invoking the exemption clause to refuse compensation, resulting in a huge psychological gap between the customers, which will lead to complaints and lawsuits. If the meaning of the exemption clause is very clear, the judge is likely to judge that the party has known the exemption clause and lost the case according to his signature on the insurance policy. But the ultimate victim is actually the insurance company itself, because doing so will lose credibility and lose customers. 3. Many times, the insurance company loses the case because it is difficult to prove that it has fulfilled the obligation to explain the exemption clause. Because some exemption clauses are vague. Very obscure, some are technical. The professionalism is too strong for ordinary people to understand. If insurance companies apply such clauses for exemption, it will easily lead to disputes. It is very unfavorable for insurance companies to encounter such claims, unless they can provide valid evidence to prove that these exemption clauses have been explained to customers when they apply for insurance. But in fact, it is difficult for insurance companies to provide evidence, even the testimony of staff, because of the interest relationship, the court will not accept it. There are many reasons why it is difficult to give evidence, such as the high mobility of insurance agents and the inconvenience for insurance companies to give evidence. However, the deep-seated reason is that insurance companies are not strong in risk awareness and weak in legal awareness. They only pay attention to the early exhibition industry without paying attention to the later management, and only pay attention to the initial premium income without paying attention to the potential litigation risks in the future. It is common that the procedure is not standardized and the procedure is not in place, not to mention the collection and custody of evidence in future litigation. Three. There are still some differences about the specific form of exemption clauses in insurance contracts, that is, how to identify insurance contract clauses as exemption clauses. Some people think that only the liability exemption part in the insurance contract can be recognized as the liability exemption clause; Some people think that the clauses on the scope of insurance liability in insurance contracts also belong to exemption clauses; Some people think that when the deductible agreed in the contract or the deductible fails to perform the obligations with the insured or the insured, all or part of the insurer's exemption clauses should be considered as liability exemption clauses; Some people think that the content of the insurer's exemption in the special agreement column of the insurance policy is the exemption clause. In my opinion, those clauses in the insurance clauses that clearly stipulate "exemption from liability" or "exemption clause" or "exemption from liability" are undoubtedly exemption clauses. What causes controversy and confusion in practice is another form of insurance clause. This kind of clause itself is not stipulated in the "exemption" part of the insurance clause, but is implied in other insurance clauses or appears on the front of the policy in the form of special agreement, but it does play a role in exempting the insurer from part or all of the claim liability. The key to confirm whether a clause belongs to the category of exemption clause is not whether the clause has exemption content, but whether the exemption agreement is beyond the cognitive scope of ordinary rational people and the basic provisions of the law. Therefore, the author thinks that the exemption clause or part of the exemption clause refers to the clause that the insurer does not have to pay compensation or insurance money or only bears a certain range of liability for the losses caused by the accident after the insurance accident occurs. It has the following characteristics: first, it is the contract clause, and the exemption or partial exemption clause is the premise and basis for exempting or partially exempting the insurer from liability. Second, the terms agreed or formulated by the parties in advance are concluded before the liability occurs and take effect after the liability occurs. Thirdly, the exemption clause or part of the exemption clause aims to exempt or limit the insurer's insurance liability for insurance accidents that may occur in the future, and has the function of exempting or limiting liability, which is the most important feature of the insurance exemption clause. Four. Discretionary standard for the insurer to perform the obligation of presentation and explanation; the clause exempting the insurer from liability is an integral part of the insurance contract. For insurers, there are still more vague problems to be solved in actual operation. Such as: the way of expression, the degree of prompt, etc. (I) Form of performing the obligation of presentation According to the provisions of the Insurance Law, the insurer shall make a presentation on the insurance application, insurance policy or other insurance documents that can attract the attention of the insured. If the prompt should have "display signs (such as bold, enlarged font, different colors, etc.). ) ".At the same time, the font of the exemption clause can be enlarged, black, bold, italic or printed in different colors, so as to reach the level required by the insurance law and attract the attention of the insured. (2) clearly state the performance standards of obligations. The current law in our country does not stipulate how to grasp the connotation of express. In this regard, the People's Bank of China and the Supreme People's Court have had three opinions successively: 1, and the People's Bank of China replied: "The insurer has completely and accurately printed the motor vehicle insurance clauses on the back of the motor vehicle insurance policy, which is regarded as fulfilling the obligation of informing stipulated in the insurance law. The signature of the insured on the insurance policy is the act of the insured recognizing the relevant contents of the insurance policy, that is, the insurance clauses, and accepting the agreed obligations. " 2. Reply from the Supreme People's Court Research Office: Clear explanation means that the insurer should not only remind the insured to pay attention to the exemption clause in the insurance policy, but also explain the concept, content and legal consequences of the exemption clause to the insured in written or oral form, so that the insured can understand the true meaning and legal consequences of the clause. 3. Article 1 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Insurance Dispute Cases stipulates: Clear explanation means that when signing an insurance contract with the insured, the insurer makes a prompt on the insurance policy or other insurance documents that can attract the attention of the insured, and explains the contents of the exemption clause to the insured in written or oral form. Comparing the above three opinions, China People's Bank has the lowest requirement, the Supreme People's Court Research Office has the highest approval requirement, and the requirements of the draft judicial interpretation are close to those of the insurance law. At present, it is generally believed that the second opinion is reasonable, and the opinion approved by the Supreme People's Court Research Office is basically adopted in the trial practice.

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