Article 2 of the Insurance Law of People's Republic of China (PRC) stipulates: "Insurance refers to the commercial insurance behavior in which the applicant pays the insurance premium to the insurer according to the contract, and the insurer assumes the liability for compensation for the property losses caused by the possible accidents agreed in the contract, or when the insured dies, suffers from disability, illness or reaches the age and time limit agreed in the contract." In order to prevent danger, the insured pays a certain premium to the insurer. In the event of a dangerous accident or the circumstances agreed in the contract, the insurer must pay compensation or insurance money to the insured or the insurance beneficiary in accordance with the contract. As an insurer, insurance companies spread risks and digest losses by establishing insurance funds. It can be seen that insurance is a commercial activity that spreads risks and absorbs losses, and its purpose is achieved through contractual legal acts. Insurance contract has the characteristics of "utmost goodwill", "double service, compensation" and "lucky shooting".
Since 1980 resumed the domestic insurance business, the insurance legislation has gone through a process from scratch, from coarse to fine, and gradually improved the relevant laws and regulations: 1983 implemented the property insurance contract regulations, 1985 issued the Interim Regulations on the Administration of Insurance Enterprises, and 1992 passed the Maritime Code. In order to better implement the Insurance Law, the People's Bank of China issued the Interim Provisions on Insurance Management, the Provisions on the Management of Insurance Agents (for Trial Implementation) and the Interim Provisions on Insurance Brokers (for Trial Implementation) on 1996, 1997 and 1998 respectively. These laws and regulations are of great significance to protect the legitimate rights and interests of the parties, promote the occurrence of insurance, solve insurance disputes and improve the construction of commercial legal system. However, there are still many immature and irregular places, and there is still a considerable gap compared with the perfect insurance system of other countries in the world, especially developed countries. Mainly manifested in the basic principles of insurance activities are not comprehensive enough, and the legislation regulating new insurance business is relatively backward. The following author tries to analyze the defects and deficiencies of China's insurance legal system from the aspects of the lack of "proximate cause" principle and the ambiguity of terms, so as to attract more attention:
First, the principle of proximate cause is lacking.
The Insurance Law stipulates that the basic principles of insurance activities are: the principle of voluntariness, the principle of checking credit and the principle of abiding by laws and administrative regulations. However, the principle of proximate cause, which is widely used in the international insurance industry, lacks applicable legal basis in China. The so-called "principle of proximate cause" refers to the causal relationship between the occurrence of insurance risk and the damage of the insured subject matter when the insurer assumes the responsibility according to the agreed scope of insurance liability. In the principle of proximate cause, the main and decisive cause of damage to the subject matter insured is proximate cause. Only proximate cause is an insurance liability, and the insurer bears the insurance liability. The lack of the principle of proximate cause is the root of the idea that the parties to an insurance contract, especially the insured, can get compensation when the interests of the insured are damaged, which leads to some unnecessary disputes. The principle of proximate cause, as an important principle that is often used to determine whether and what kind of insurance liability the insurer bears for the loss of the subject matter insured, is not expressly stipulated in China's Insurance Law and Maritime Law, which has to be said to be a major defect in China's insurance legislation.
Second, the ambiguity of the application of the principle of unfavorable interpretation.
The rights and obligations between the insured and the insurer are established through the insurance contract. As an attached contract, insurance contract, whether it is an insurance policy, an insurance policy or special terms, is mostly made by the insurer. When formulating, we must go through careful consideration and repeated deliberation. Most of the contents are beneficial to ourselves and have basically been formatted. The standard insurance contract is drawn up by the insurer, which rarely reflects the meaning of the applicant, the insured or the beneficiary. When concluding an insurance contract, the applicant can only accept or not accept the terms drawn up by the insurer. Furthermore, the format of insurance contract also realizes the specialization of contract terms, and the terms used in insurance contract are not understandable by ordinary people, which is objectively beneficial to the interests of insurers. Therefore, once the contract is established, the insured will be at a disadvantage if there is a dispute between the two parties. In order to protect the interests of the insured or beneficiary, countries have accumulated and developed the principle of adverse interpretation in the long-term insurance practice to show their relief to the insured or beneficiary. When the terms of a standard insurance contract are ambiguous or have multiple interpretations, an interpretation that is unfavorable to the insurer but actually beneficial to the insured shall be made. Article 41 of China's "Contract Law" stipulates that "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." Article 30 of the Insurance Law also stipulates: "When there is a dispute between the insurer and the applicant, the insured or the beneficiary, the people's court or the arbitration organ shall make an explanation in favor of the insured and the beneficiary." China's "Provisions on the Interpretation of Insurance Contract Terms" actually establishes the principle of unfavorable interpretation, which is consistent with international practice. This is of great significance for safeguarding the interests of the insured and the beneficiaries (the economically disadvantaged).
However, in judicial practice, due to the lack of uniform and clear standards and the non-recognition of the binding force of precedents, different types of insurance contract terms are interpreted by different courts, and there may be conflicting or even diametrically opposite conclusions about the correct meaning of the terms, the intentions expressed by the parties and the effects produced. However, due to the lack of uniform standards for the application of the adverse interpretation principle, which clauses can be applied, especially whether the basic insurance clauses approved and issued by the State Insurance Regulatory Bureau can apply the adverse interpretation principle, will directly affect the results of disputes between the two parties to the insurance contract. However, there are no corresponding provisions in China's insurance laws and regulations, and there are few cases and studies in this regard.
According to the provisions of Article 106 of China's Insurance Law. The basic insurance clauses of the main types of commercial insurance, such as the name and domicile of the insurer, the applicant and the insured, as stipulated in Article 18 of the Insurance Law; Subject matter of insurance; Insurance liability and liability exemption; Insurable value; The amount of insurance and other terms shall be formulated by the financial supervision and regulation department. Basic insurance clauses are insurance clauses applicable to major commercial insurance types; The main types of commercial insurance shall be approved by the financial supervision and regulation department; Where it is approved by the financial supervision and regulation department as the main type of commercial insurance, the financial supervision and regulation department shall formulate basic insurance clauses. The basic insurance clauses promulgated by the state shall be implemented by all insurance companies. The language used in such clauses is legally approved by the insurance management institution, and there should be no ambiguity. However, in real life, according to their own level of understanding, the insurer inserts basic clauses according to their own needs in order to maximize their interests, while the insured is powerless to compile the insurance contract, so it is often difficult to fully understand the nature and content of the insurance contract when signing the contract. There is no way to know which terms belong to basic terms, let alone make sense. For example, the definition of "cash value" in some insurance contracts is: "the sum of the guaranteed cash value of this contract, the cash value of all paid value-added insurance and accumulated dividends." Some insurance companies don't make any explanation at all, and the insured can only understand the word by himself, but in fact, the definition of the word "cash value" should be the amount after deducting the refund premium from the liability reserve, while the liability deposit refers to the amount obtained after deducting the death cost of the insured from the insurance premium accumulated by the insured and sharing the expenses incurred by the insurance company plus interest. Therefore, the disadvantage of the insured in concluding an insurance contract is obvious. Once the parties dispute the basic clauses, the court will feel at a loss whether to apply the principle of unfavorable interpretation, which will not only affect the interests of the insured and the commercial reputation of the insurer, but also adversely affect the unity of the national legal system and the authority of the court's judgment.
Third, the hidden contract trap
According to the provisions of the Insurance Law, the insurer and the insured shall perform their obligations and bear the responsibilities according to the contract, among which the main obligations and responsibilities of the insured are: the obligation to inform, the obligation to maintain (including the obligation to inform about the safety of the subject matter of the insurance contract and its risk increase), and the obligation to pay the insurance premium; The insurer's main obligations and responsibilities are: explaining obligations, timely compensation, lifting contract restrictions and bearing expenses. It can be seen that in terms of insurance premium delivery and compensation, the obligation and responsibility of the insured to pay insurance premium and the obligation and responsibility of the insurer to undertake compensation are independent of each other. Whoever violates this obligation will bear the corresponding responsibility. However, the obligations and responsibilities of both parties do not correspond, and the insured's violation of the obligation to pay insurance premiums does not necessarily lead to the reduction or exemption of the insurer's liability for compensation. However, some insurance companies (mainly property insurance companies) have made the following agreements when negotiating the payment and compensation methods of property insurance premiums with the insured by using standard contracts: with the consent of both parties, if the insured fails to pay the initial premium as agreed, the insurance contract will not take effect and the insurer will not compensate for the insured accident; If the insured fails to pay the second premium as agreed, and an insurance accident occurs within the scope of insurance liability, the insurer shall compensate or assume the insurance liability in one of the following ways: 1. Pay the compensation amount at a discount according to the proportion of the premium paid and the premium payable; 2. Calculate the insurance period according to the premium paid, and do not assume the liability for compensation when it expires. The above compensation method is to determine the insurer's liability according to the ratio of the actually paid insurance premium to the payable insurance premium. In fact, stipulating the liability of the insured for violating the payment obligation is the basis for reducing or exempting the insurer from the compensation obligation. Through the advantage of the insurer's formulation of the interpretation format clause, the insured's subject right to compensation is completely or partially deprived, and the insured's responsibility is aggravated, which obviously violates the fairness principle of the contract law and the legislative purpose of the insurance law. Moreover, this compensation method also hides the contract trap that is difficult to find if you don't pay attention. According to the method of 1, when the insured has paid the first premium and the second payment obligation has not been fulfilled, once an insurance accident occurs, even if the insured has not violated any contract, only partial compensation can be obtained. According to the second method, the insurer is actually given the right to unilaterally change the insurance period according to the insured's payment, or even exempt from liability, and does not bear any responsibility for the insured accident. The insurer skillfully uses the standard contract to set a trap that can make him evade part or all of his obligations and make the insured or beneficiary lose interest, which fully shows that the insurer has seriously violated the principle of good faith when drafting this standard contract. The application of such clauses violates the most basic principles of fairness, honesty and credit in civil legal relations in modern society, and harms the interests of many insured persons. Insurance regulatory authorities should actively intervene according to their functions and powers.
Fourth, it is not easy to grasp the obligation of clear explanation.
Article 16 of the Insurance Law specifies in detail the obligation of the applicant to explain the subject matter of insurance or the insured and the obligation of the insurer to explain the insurance clauses, and Article 17 specifies the obligation of the insurer to clearly explain the exemption clauses. Although the above two paragraphs describe and stipulate the insured's obligation of "telling the truth" and the liability for violating this obligation in detail, there is no corresponding form for the insurer's obligation of "telling the truth", which makes it extremely flexible and uncertain in practice. Literally, Article 16 gives the insurer the right to terminate the insurance contract, not to assume the responsibility of compensation or payment of insurance premium, not to return the insurance premium or to return the insurance premium as appropriate. However, there is no provision for the insurer's failure to specify the liability of the insurance clause. The consequence of the insurer's failure to specify its liability exemption clause is that the relevant clause will not take effect. By comparison, it is not difficult to see that the responsibility of the insurance law on this issue is obviously heavier than that of the insurer, which is suspected of violating the principle of equality of rights and obligations of both parties in civil subjects. As an insurance contract known as "the contract of utmost good faith and utmost good faith", in real life, there are many examples of disputes arising from different understandings of the language used in the contract during the performance of the insurance contract, which may be related to the strict restrictions on the above obligations of the insurer in the insurance law. In addition, due to the imperfect provisions of the Insurance Law on insurance intermediary organizations and the immature domestic insurance industry system, there is no professional insurance agency or brokerage company in China at present, and some insurance companies employ a large number of individual agents (strictly speaking, they can only be used because there is no labor relationship between insurance companies and individual agents). Although there are many such personnel, their quality is uneven and their mobility is great. In order to get the commission, when they explain some contract terms that may affect the policyholder's decision, it is inevitable that they will intentionally make vague or even opposite explanations for their own interests, so it is not surprising that there are disputes.
Five, the lagging guarantee insurance legislation
With the increasingly active socialist market economy, there are many new trading methods in the process of commodity circulation, and the trading methods based on credit are increasing day by day. Especially with the emergence of installment payment, a modern consumption mode, there are more and more problems involving guarantee insurance, and many insurance companies have started this kind of business. However, when the Insurance Law determines the business scope of property insurance in Article 9 1, it does not involve guarantee insurance except credit insurance. As a special property insurance contract, guarantee insurance contract is an insurance contract established by the insurer to provide guarantee for the insured (debtor) to the insured (creditor). When the insured pays the insurance premium to the insurer, if the insured suffers losses due to the debtor's non-performance, the insurer shall be liable for compensation. The status of the insurer is equivalent to the guarantor in the guarantee contract, so it can also be said that the guarantee insurance contract actually belongs to the category of the guarantee contract, but it adopts the form of insurance. In the guarantee insurance contract, the insurable interest is the creditor's right, and the creditor's right belongs to the property right. Therefore, guarantee insurance is still property insurance in nature. The provisions of the Property Insurance Law can also be applied to guarantee insurance in principle, but it is significantly different from general property insurance. The risk of guarantee insurance is the subjective damage caused by the insured's bad credit, which has obvious credibility. Because the guarantee insurance evolved from the guarantee system in the Guarantee Law, it has both characteristics, and it is the integration of the guarantee system and the insurance system. Its parties (related parties) have multiple identities in law, so it is difficult to completely break away from the guarantee contract.
Because the insurance law does not clearly stipulate the guarantee insurance contract, and there are disputes about the nature of the guarantee insurance and the relationship between the guarantee insurance and the guarantee, the parties often only consider their own interests when concluding the contract. In addition to considering the insurance premium, insurers often conclude many exemption clauses in the guarantee insurance contract, but the insured thinks that once insured, everything will be fine, so it is not surprising that disputes arise. Since guarantee insurance involves both guarantee and insurance, is insurance law or insurance law applicable to such disputes? Because the guarantee insurance contract is often related to another contract, such as automobile sales contract and loan contract. However, an insurance contract is generally a subsidiary contract of a sales contract or a loan contract. When a dispute arises, it involves two contracts and three parties, and how the creditor or the insured can sue is controversial. In judicial practice, it is also easy to characterize the dispute of guarantee insurance contract as a guarantee contract dispute, which leads to confusion and mistakes in the application of law.
To sum up, due to some legal gaps and defects in China's insurance legislation, the existing insurance law with obvious brand of planned economy system has become increasingly unsuitable for the development of the insurance industry itself and the changes in the insurance business environment, and cannot meet the actual needs of social development. Especially after China's entry into WTO, China's insurance market will gradually be in line with international standards. 1At the end of 1997, 70 WTO members, accounting for more than 95% of the global financial services trade, reached the Financial Services Agreement on the basis of the General Agreement on Trade in Services. Among them, there are six basic principles applicable to the opening of insurance industry in developing countries: 1, the most-favored-nation treatment principle; 2. Transparency standards; 3. Guidelines for greater participation of developing countries; 4. Guidelines for national treatment; 5. Market access standards; 6. Guidelines for gradual liberalization. Any of these basic standards will pose an obvious challenge to China's current planned insurance system, and the implementation of any standard will have an impact on China's current insurance system. How to seize the opportunities and challenges faced by the insurance industry, strengthen the construction of insurance legislation, adjust, revise and formulate insurance laws and regulations that meet the requirements of w to as soon as possible, optimize the legal environment of the insurance market, guide and ensure the healthy development of the insurance industry in China, which is still in its infancy, and make it run on a standardized track is particularly urgent. Here, the author only expresses his personal views on how to improve China's insurance laws and regulations.
The first is to improve the basic principles of insurance activities. On the basis of further improving the principles of voluntariness, utmost good faith and compliance with laws and administrative regulations, insurance legislation should clearly stipulate the principles of fairness and proximate cause which are generally applicable in the international insurance industry, and give full play to "utmost good faith" and "utmost good faith" in insurance contracts. In addition, according to the agreement reached by WTO members and the development trend of insurance market, we should standardize market access policy, cancel preferential treatment for foreign capital, implement national treatment and gradually liberalize it into the legislative vision, establish a basic insurance legal system in line with international practice as soon as possible, and promote the standardized development of domestic insurance industry in order to better participate in competition and meet challenges.
The second is to standardize the obligations of insurers and increase the protection of the legitimate rights and interests of policyholders. It is mainly to strengthen the obligations and responsibilities that the insurer should perform when concluding an insurance contract, such as explanation and notification. , and the provisions of excess insurance and double insurance shall be included in the special remarks clause of the insurance contract, and the obligation to make provisions and explanations in good faith shall be fulfilled. When the insurer fails to fulfill the above obligations, it should give the insured the right to modify or terminate the contract, so that the rights and obligations of both parties to the insurance contract are equal, so as to protect the legitimate rights and interests of the insured in a weak position. In addition, a confirmation system can be implemented. Both parties shall sign two copies of the obligation of informing and explaining, as proof that both parties have fulfilled their respective obligations, so as to implement the principle of utmost good faith in the insurance contract. It can not only maintain the stability of the insurance contract, but also avoid the situation that both parties can't prove when there is a dispute.
The third is to strengthen the functions of regulatory agencies and improve the level of supervision. Insurance regulatory authorities should strengthen the supervision and management of non-material clauses and insurance rates in commercial insurance contracts while checking the obligations, financial status, capital utilization and solvency of insurance companies, and take the initiative to investigate and deal with contract clauses that have contract traps, evade laws and regulations and increase the obligations and responsibilities of the other party according to their functions and powers, order them to make corrections within a time limit, and give certain economic penalties. At the same time, some widely used and ambiguous insurance terms, such as "cash value", are interpreted in a unified and standardized way and incorporated into relevant contract terms as mandatory standards to avoid unnecessary disputes and promote the healthy development of the insurance industry.
Fourth, gradually establish a system of insurance laws and regulations in line with international practice. By drawing lessons from the advanced insurance system of developed countries and combining with the actual situation of China's insurance industry development, we will further improve the relevant laws and regulations on insurance investment, control the investment ratio through legislation, expand the investment field, refine the norms for the use of insurance funds, improve the profitability of insurance investment, and create conditions for insurance companies to improve their return on investment; Improve the laws and regulations of insurance intermediary organizations, strengthen the management of insurance agents, insurance brokers and related organizations, and standardize the responsibilities and rights of insurance intermediary industries and their employees; Accelerate the construction of supporting laws and regulations such as actuarial report, asset management of insurance institutions and takeover of insurance institutions, and establish a set of insurance legal system with China characteristics and in line with international practice.