保险人法定解除权研究

【作者】 马海霞；

【导师】 张秀全；

【作者基本信息】 郑州大学 ， 民商法学， 2005， 硕士

【摘要】 保险合同法定解除制度是我国保险法的重要内容,它几乎囊括了我国《保险法》上解除制度的全部,且主要是指保险人对合同的法定解除。因为投保人的“退保”,依据大陆法系国家合同解除的一般理论,其实质是一种合同终止。无论是立法上的保险合同解除,还是具体到实务上保险条款中的合同解除,主要是指保险人的法定解除。因此,研究保险人法定解除权才更具有理论意义和现实意义。 我国《保险法》上的保险人法定解除制度,由于理论研究薄弱,存在诸多问题需要重新审视。本文立足于传统大陆法系国家关于合同解除的一般理论,结合保险合同自身的特点,系统地阐述了保险人法定解除权产生的条件、权利的行使和解除的效力,并对我国《保险法》的不足之处,提出了一些粗浅的修正建议,以期对我国《保险法的进一步完善有所裨益。 本文共分三部分。 第一部分,保险人法定解除权的一般分析。保险人法定解除权是指在保险法所规定的法定解除条件具备时,保险人一方所享有的合同解除权。产生条件法定和效力法定是保险人法定解除权的两大特征。与保险人的约定解除权相比,保险人法定解除权的行使是导致保险合同解除的主要原因所在。保险人法定解除权与保险人法定终止权有本质区别,不能混为一谈。二者权利产生的原因不同,且行使的效力也不同。保险人法定解除权的理论依据为诚实信用原则和对价平衡原则。根据保险人法定解除权的两个理论依据,笔者认为产生保险人法定解除权的条件有五个:①投保人、被保险人违反如实告知义务;②投保人、被保险人或受益人故意制造保险事故;③投保人、被保险人违反主观危险增加的通知义务;④投保人申报的被保险人的年龄不真实;⑤被保险人违反特约条款。为了切实保护投保人一方的利益,维护交易安全,笔者结合我国《保险法》的实际情况,通过与有关国家的保险法进行比较,从反面强调并论证了以下五种情形不适用保险人法定解除权:①投保人不按时缴纳保费;②投保人违反对保险标的安全保护义务;③投保人违反客观危险增加的通知义务;④被保险人或受益人谎称出险;⑤保险复效失败。 第二部分,保险人法定解除权的行使问题。保险人法定解除权是一种形成权。更多还原

【Abstract】 Insurance Contract Termination System, which mainly refers to the legal right of insurer to terminate the insurance contract, is one important part of Insurance Law, for it has embraced nearly all the contents of termination systems in Insurance Law. According to the basic theory in Continental Laws, the applicant’s request to terminate the insurance contract is actually one form of contract ending. However, to the author’s understanding, Insurance Contract Termination System should deal with the insurer’s legal termination right no matter in legislation or in practical affairs, so that there is theoretical and practical significance in studying this subject.Honestly, due to the lack of theoretical support, there are still some points that need to be further examined in Insurance Contract Termination System. This essay dwell systematically on the causes, the execution and the effect of the insurer’s termination right, based on the common theories of Continental Laws and given the characteristics of insurance contract. In addition, it further puts forward some suggestions on how to perfect our insurance law.The essay can be divided into three parts.The first part is about some common theories of insurer’s legal right to termination Insurance Contract. Researchers are always arguing about the effects of Contract Termination, but the writer insists that Contract Termination take effects from its beginning. The definition of insurer’s legal right to termination Insurance Contract, is that insurers execute the right of termination when legal reasons happen.. Insurance contract termination and insurance contract ending are basically different from each other and they cannot be mixed together. Because after the termination of the contract, the contract takes effects from its beginning and the obligations that have been fulfilled should return to the initial stage; while the ending the contract takes effect thereafter rather than from the beginning. Insurer’s legal right to termination Insurance Contract system is based on principle of credit and principle of making compensation for equal value.As far as the causes of insurer’s legal right to termination Insurance Contract,on the basis of the above mentioned two principles, the author attributes the termination of contract to the following five factors: 1. the applicant or the insured intentionally conceals facts; 2. the applicant, the insured or the beneficiary intentionally causes the occurrence of an insured event; 3. The applicant, the insured or the beneficiary does not notify the insurer in a timely manner of the fact that the risk of occurrence of insured event has become higher; 4. the applicant provides false information concerning the age of the insured; 5. the insured violates the special provisions. Considering the practical condition of China’s Insurance Law, the author emphasizes and analyzes why the following circumstances do not account for termination of contract: l.the applicant does not pay the premium in a timely manner; 2.the applicant does not perform the obligation of protecting the insured subject matter; 3.the applicant fails to perform the obligation of notifying the increased risks caused by objective existence; 4.the applicant or insured provides false information about the occurrence of the event ;5.the failure of the agreement between insurer and applicant about the insurance contract resumption ;and so on.The second part is about execution of insurance contract termination. The insurer, its insurance agent, heritage delegation and rectification supervisor shall have the right to execute the termination. The rights of the applicant, its heritage, and the beneficiary mutually agreed in the contract shall be terminated. The termination of contract adopts the form of a written notice which is to be sent to the other party as a previous procedure for judicial proceedings and arbitration. The insurer should execute its right within the given period; once beyond it, and the insurer can be viewed to waiver and estoppel, the insurer loses the right to terminate the contract. As far as the author is concerned, after insurance contract termination the applicant can ask for the return of insurance fee, and the insurer can ask for the return of what he has spend, and this can balance two parts benefits at the most degree. But effects of Insurance Contract Termination are not unalterable, the applicant’s honesty and the characters of different insurance contracts should be concerned at the same time. And according to this,-the insurance law should contain some special regulations.The third part is about the perfection of our country’s insurance law. TheInsurance Contract Termination System in Chinese Insurance Law lacks integrity. Conceptions of contract termination and of contract ending are not clear, so with the effects of contracts termination. The author views that clearing out the validity of the insurance termination and adding the principles way deadline of execution of the legal right to insurer’s termination in our Chinese insurance law. And in this part, some concrete legislation suggestions would be raised on the perfection of the insurance contract termination system in Chinese Insurance Law.更多还原