A contract (also called a contract) is an agreement that the parties of equal subjects agree to establish, change and terminate their rights and obligations in order to achieve a certain purpose.
Article 10 of the Insurance Law of People's Republic of China (PRC) stipulates that "an insurance contract is an agreement between the applicant and the insurer to stipulate the insurance rights and obligations." According to the insurance contract, it is the insurer's basic right to collect insurance premiums, and it is the insurer's basic obligation to compensate or pay insurance premiums. Accordingly, it is the basic obligation of the insured to pay the insurance premium, and it is the basic right of the insured to claim compensation or pay the insurance premium. The parties must strictly perform the insurance contract.
Effective conclusion
That means that the insurance contract is legally binding on both parties, and the parties must strictly perform the insurance contract, otherwise they will be liable for breach of contract except for legal exceptions. Therefore, the effective conclusion of an insurance contract actually includes two aspects: first, the terms of the insurance contract have been agreed by both parties, that is, the insurance contract has been established; Second, the insurance contract is legally binding on both parties, that is, the insurance contract takes effect. However, in the theory and practice of China's insurance law, there are many disputes about the establishment and entry into force of insurance contracts. On the one hand, the connotation of the establishment and entry into force of the contract needs to be clear. On the other hand, the elements involved in the establishment of the contract are closely related to practical issues such as insurance premium payment and insurance policy issuance. Especially in insurance practice, it is often difficult to unify the standards due to technical problems in legislation, which leads to many compensation disputes. In view of this, this paper will briefly discuss the effective conclusion of insurance contracts. [ 1]
Contract subject
The subjects of insurance contracts are divided into three categories: insurance contract parties, insurance contract parties and insurance contract assistants.
Parties to a contract
1. An insurer, also known as an insurer, refers to an insurance company that engages in insurance business, concludes an insurance contract with the applicant, collects premiums, organizes insurance funds, and compensates the insured for losses or pays insurance money after an insurance accident occurs or the insurance contract expires. Insurers have the following characteristics: (1) Insurers only refer to insurance companies engaged in insurance business, and their qualifications can only be obtained in strict accordance with the law; (2) The insurer has the right to collect insurance premiums; (3) The insurer has the obligation to bear the insurance liability or pay the insurance money.
2. The applicant, also known as the "insured", refers to the person who has entered into an insurance contract with the insurer and has the obligation to pay the insurance premium according to the contract. In a life insurance contract, the applicant must have an insurable interest in the insured; In a property insurance contract, the applicant must have an insurable interest in the subject matter insured. The applicant must meet the following two conditions: (1) having capacity for civil rights and capacity for civil conduct; (2) Undertake the obligation to pay insurance premiums.
Contract related party
1. The insured, commonly known as the "applicant", refers to the person who is guaranteed by the insurance contract and has the right to claim the insurance money. The insured has the following characteristics: (1) The insured is the person who suffered losses when the insured accident occurred. In life insurance, the insured is a person who suffers direct loss of life or health due to the occurrence of dangerous accidents; In property insurance, the insured must be the owner or other obligee of the property; (2) The insured is the person who has the right to claim insurance money; (3) The qualifications of the insured are generally unrestricted, and the insured can be the insured himself or a third person other than the insured; The insured can also be a person without civil capacity, but in life insurance, only parents can insure the person without civil capacity on the condition that the insured dies.
2. Beneficiary refers to the person who has the right to claim the insurance money specified by the insured or the applicant in the life insurance contract, and the applicant, the insured or the third party may be the beneficiary. Beneficiaries have the following characteristics: (1) Beneficiaries have the right to claim insurance money; (2) The beneficiary is designated by the insured or the applicant. (3) Generally, there is no qualification restriction on the beneficiary, and the beneficiary does not need to be restricted by civil capacity or insurance interests; However, if the insured handles life insurance for people who have labor relations with him, he may not designate anyone other than the insured and his close relatives as beneficiaries.
Contract assistant
1 Insurance agent An insurance agent is an agent of an insurer, which refers to a person who collects remuneration from the insurer according to the insurance agency contract or power of attorney and independently operates insurance business in the name of the insurer within the prescribed scope. Insurance agency is a special agency system, which is manifested in:
(1) An insurance agent and an insurer are legally regarded as one person;
(2) If the insurance agent knows, it is presumed that the insurer knows;
(3) Insurance agency must be conducted in written form. An insurance agent can be a unit or an individual, but it must be approved by the competent department of the state and be qualified as an agent.
2. Insurance broker An insurance broker is a person who provides intermediary services for the insured and the insurer to conclude a contract based on the interests of the insured and collects labor remuneration.
3. Insurance assessor An insurance assessor refers to a unit entrusted by the insurer to engage in the assessment, inspection, valuation and loss adjustment of the subject matter insured.
Object of contract
(1) Insurable interest is the subject matter of an insurance contract.
Object refers to the object that the subject points to when enjoying rights and performing obligations in civil legal relations. The object becomes the object in the general contract, that is, things, behaviors, intellectual achievements, etc. Although the insurance contract belongs to the category of civil legal relationship, its object is not the subject matter of insurance itself, but the legally recognized interest of the applicant or the insured, that is, the insurance interest.
(2) The subject matter insured is the carrier of insurable interest.
The object of insurance is the property that the applicant applies for insurance and its related interests or personal life and body, and it is the basis for determining the insurance contractual relationship and insurance liability. In different insurance contracts, the insurer clearly stipulates the scope of the subject matter insured, that is, which can be underwritten, which can not be underwritten and which can be specially underwritten under certain conditions.
Establishment of contract
meaning
According to the theory of contract law, the so-called contract formation means that the contract exists objectively because it meets certain conditions, and its concrete performance is to transform the unilateral expression of the offeror into the unanimous expression of the two parties.
Judging whether a contract is established is not only a theoretical issue, but also of practical significance. First of all, judging whether the contract is established is to judge whether the contract exists. If the contract does not exist at all, a series of problems such as its performance, alteration, transfer and dissolution will not exist. Secondly, judging whether the contract is established is also to determine the effectiveness of the contract. If the contract does not exist at all, there is no question of validity or invalidity of the contract, that is, the establishment of the insurance contract is the prerequisite for the insurance contract to take effect.
Institutional elements
An insurance contract is a civil act as well as a contractual act. Therefore, insurance contracts should be adjusted not only by insurance law, but also by civil law and contract law. Therefore, the establishment of an insurance contract must conform to the elements of civil legal acts and the establishment of the contract.
Article 13 of China's contract law stipulates: "The parties conclude a contract by offer and acceptance." Article 13 of China's "Insurance Law" stipulates: "The applicant requests insurance, the insurer agrees to underwrite, and the insurance contract is established." According to this provision, the establishment of an insurance contract generally requires three elements: first, the applicant makes an insurance request; Second, the insurer agrees to underwrite; Third, the insurer and the insured reach an agreement on the terms of the contract. These three elements are essentially the process of offer and acceptance stipulated in contract law. Therefore, in principle, an insurance contract should be established when the parties reach an agreement through offer and acceptance.
Contract content
Insurance clauses: basic clauses and additional clauses.
The insurance contract signed by the applicant and the insurer mainly includes the insured's information about the subject matter of insurance, the insured value and amount, the insurance risk, the insurance premium rate, the liability for breach of contract during the insurance period and the dispute settlement method, as well as the obligations and rights of both parties.
A. Name and domicile of the insured: Defining the name and domicile of the insured is the prerequisite for signing an insurance contract. There are several points to be explained here: when the insured is not a person, it should be listed one by one in the insurance contract, and an insurance policy should be issued after the insurer approves the underwriting. In addition to the insured, whether there are other insured or beneficiaries in the insurance contract needs to be explained; In cargo transportation insurance, there is a special agreement: there are two types of cargo transportation insurance contracts: indicative and bearer. In the indicative contract, besides the name of the insured, the words "other designated persons" are also included, and the third party can transfer it through the endorsement of the insured. In a bearer insurance contract, the third party is transferred with the transfer of the subject matter insured, without specifying the name of the insured.
B. Subject matter of insurance: The subject matter of insurance refers to the rights and obligations of both parties to the insurance contract, which is the subject matter of insurance and the material form of insurable interest.
C. Insurance risk: it is a risk factor for the insurer to bear the liability for loss compensation or payment of insurance benefits to the insured, and it must also be clearly stipulated in the contract.
D. Insured value and insured amount: Insured value refers to the actual value of the subject matter insured when the applicant applies for insurance, and insured amount refers to the insured amount of the subject matter insured or the insured value written in the insurance contract, which is the basis for the insurer to calculate the insurance premium and the maximum limit for the insurer to bear the liability for compensation or payment.
E. insurance premium and premium rate:
F. Payment of insurance compensation or insurance premium:
G. duration of insurance:
H. Liability for breach of contract and dispute settlement: Liability for breach of contract refers to the legal liability that the parties to an insurance contract must bear because of their own fault, which makes the insurance contract unable to fully perform or violates the obligations stipulated in the insurance contract.
I. Rights and obligations of both parties to an insurance contract.
Validity of contract
Entry into force of contract
1. The meaning of a valid insurance contract
In insurance contracts, "insurance contract comes into effect" and "insurance contract is established" are two different concepts. The establishment of an insurance contract means that the parties to the contract reach an agreement on the main terms of the insurance contract; The entry into force of an insurance contract means that the terms of the contract have legal effect on both parties, requiring both parties to abide by the contract and fully perform their obligations under the contract. There are two relations between the establishment and entry into force of an insurance contract: first, once the contract is concluded, it will take effect immediately, and both parties will begin to enjoy rights and assume obligations; Second, the contract does not take effect immediately after it is established, but only after the conditions for the insurance contract to take effect are established or the time limit is reached.
China adopts "zero-time insurance system". That is, the contract will take effect at 0: 00 the next day, or the conditions are established or the time limit reaches 0: 00 the next day.
2. Elements for the entry into force of an insurance contract
Article 55 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates: "A civil juristic act shall meet the following conditions: (1) The actor has corresponding capacity for civil conduct; (2) the meaning is true; (3) It does not violate the law or the public interest. " Article 9 of People's Republic of China (PRC) Contract Law stipulates that "when concluding a contract, the parties shall have corresponding capacity for civil rights and capacity for civil conduct". Therefore, in order to conclude an insurance contract effectively, the parties must have the corresponding contracting ability and express the truth on the basis that the contents of the insurance contract do not violate the legal and social interests.
invalid contract
Invalid insurance contract means that the insurance contract concluded by the parties is not legally binding because it does not meet the effective conditions stipulated by law. The characteristics of invalid insurance contracts are: 1, illegality, that is, violation of laws, public order and good customs; 2. It is invalid from the beginning, that is, it has no legal effect because it is illegal; 3. Invalidation does not need to consider whether the parties advocate or not, and the court or arbitration institution can take the initiative to review and confirm that the contract is invalid.
Reasons for invalidation of insurance contract
1. The contract entity is unqualified. The loss of subject qualification means that the qualifications of the insurer, the applicant, the insured, the beneficiary or the insurance agent do not meet the legal requirements. For example, the applicant is a natural person with limited capacity for civil conduct who has no capacity for civil conduct or cannot independently conduct contracting activities according to law; The insurer does not meet the statutory requirements and is not established according to law; An insurance agent does not have insurance agency qualification or insurance agency right. If the above-mentioned subjects conclude an insurance contract, the contract is invalid.
2. The intention of the parties is untrue. In the process of concluding a contract, any party makes the other party make a declaration of will against his will by means of fraud, coercion or taking advantage of others' danger, which constitutes that the declaration of will is untrue when concluding a contract. Fraud here refers to the behavior that the actor fails to fulfill the obligation of telling the truth, deliberately conceals the true situation or deliberately tells the false situation, and induces him to make a wrong expression of his will to the Lord. For example, when concluding an insurance contract, the applicant lied that there was a risk knowing that there was no risk, but lied that it did not happen knowing that the risk had occurred. Coercion refers to the behavior that one party forces the other party to conclude an insurance contract with himself by threatening to cause damage to the person, property, reputation and honor of the other party or people related to the other party. Threat is to determine the possible behavior, which is enough to make the other party enter into an insurance contract against their will.
3. The object is illegal. If the applicant and the insured have no insurable interest in the subject matter insured, the insurance contract concluded by them is invalid.
4. The content is illegal. If the risks insured by the applicant are illegal, such as violating the public interests of the state and society and the mandatory provisions of the law, the contract is invalid.
Characteristics of insurance contract
Paid contract
A paid contract refers to a contract that must pay a certain consideration because it enjoys certain rights.
Bilateral contract
A bilateral contract refers to a contract in which both parties enjoy rights and assume obligations.
Speculative contract
A lucky contract refers to a contract whose validity is uncertain at the time of signing, that is, one party to the contract may not perform the payment obligation, and only perform the payment obligation when the conditions agreed in the contract are met or the events agreed in the contract occur.
Attached agreement
Echo contract refers to a contract whose content is not drawn up by both parties through consultation, but drawn up by Party B first, and the other party only expresses whether it agrees or not.
Good faith contract
Due to the asymmetry of information between the two parties, the requirement of good faith in insurance contracts is much higher than that in other contracts.
form
An insurance contract is signed in the form of an insurance policy and an insurance certificate. Attachments specified in the contract and documents, telegrams, charts, etc. related to the modification of the contract agreed by both parties through consultation are also an integral part of the contract. Insurance contract is a necessary contract, but the insurance policy is only a written proof of the insurance contract, not a necessary condition for the establishment of the insurance contract. Usually, an insurance contract consists of an insurance application, an insurance policy (or a temporary insurance policy, an insurance certificate) and other relevant documents and attachments. Among them, insurance policy, temporary insurance policy, insurance policy and insurance certificate are the most important.
An insurance policy, also known as an insurance application, is a written offer submitted by the applicant to the insurer. After the insurer promises, the insurance policy becomes one of the components of the insurance contract. Insurance policies are generally printed by insurers in a unified format in advance, and the items that the insured should fill in the insurance policies generally include: ① the name (or company name) and address of the insured; (2) the name and location of the subject matter insured, (3) the type of insurance, and (4) the insured value or determination method and the insured amount; (5) Insurance period; ⑥ Date of insurance and signature, etc. In insurance practice, for some types of insurance, in order to simplify the procedures and facilitate insurance, the applicant does not need to fill in the insurance application form, but only needs to verbally make an offer and provide relevant documents or vouchers, and the insurer can issue an insurance policy or insurance certificate.