Third party motor vehicle third party liability insurance in the definition of the scope of

							Third party motor vehicle third party liability insurance in the definition of the scope
of
Third party motor vehicle third party liability insurance in the definition of the scope
of
And the insurance contract that recognized the validity of exemption clauses
Tianjin First Intermediate People's Court Lvhong Ning
[Basic facts]
Appellant (the trial the defendant): Ping An Insurance Company of Tianjin, China
Ping An Insurance Baodi Support Corporation (Baodi branch of Ping An Insurance
Company).
Appellee (plaintiff trial): yangshuling.
The trial court found, January 20, 2006 yangshuling Baodi support Ping An Insurance
Company third-party motor vehicle insurance comprehensive liability insurance,
insurance, vehicle age for subsidized AA9251 light trucks, the same day, Ping An
Insurance Baodi support insurance companies to accept yangshuling and issued its
policy. The period of insurance from January 21, 2006 to January 20, 2007, insurance
was 1386.60 yuan, the insurance amount of 50,000 yuan. The second part of the
insurance contract, the provisions of Chapter II Article III: "insured vehicle
following personal injury or death, regardless of whether the law should be insured by
a liability insurance per capita is not liable for: (a) the insured or permitted drivers and
their family members ... .... "Part IV of the insurance contract interpretation
of Article 2 as:" family members, including the insured's
immediate blood relatives and other relatives live together. "The third part
of the car insurance contract officers liability insurance provision with Article IV of
the articles "under the insurance vehicle by the responsible driver in the
accident, the car workers compensation liability insurance, subject to provisions in
excess of the amount of responsibility in the implementation of the accident, take full
responsibility for the deductible 20% ... ... "at 9:00 p.m. on the March 17,
2006 about yangshuling vehicle insurance, driving carelessly knocked down the wall,
bulk density, caused by his mother died. April 11, 2006 by the Tianjin Branch of the
Public Security Bureau Traffic Police Brigade Baodi mediation, yangshuling accident
damage be compensated accordingly, and mediation in an accident after the accident
insurance claims Baodi branch companies, but refused to claim. Another investigation,
yangshuling has been the separation of the other, their parents do not belong to the
same household.
[Results of First Instance]
The trial that the insurance contract is an agreement with the insurer rights and
obligations of the insurance agreement. Yangshuling such as a traffic accident about to
pay insurance premiums, and traffic accidents and accident compensation relative
reached mediation agreement, its losses are based on evidence. Insurance companies
refuse to yangshuling Baodi support claims on the basis that the insurance contract of
insurance the vehicle and the driver of the vehicle personal injury is a family member
exclusions. Yangshuling drive vehicles cause his mother died Insurance, Ping An
Insurance Company believes that the reason Baodi deductible support. Based on the
two sides yangshuling driving deaths caused by the fact that his mother was no
objection, the hospital to confirm this. Ping An Insurance company that Baodi support
such safe harbor provisions of the contract content will reduce the scope of third party
liability insurance, liability exemption clause did not clearly fulfill the obligation to
yangshuling, it refused to claim exemption clause does not comply with the law, This
shall not accept. Ping An Insurance Baodi support compensation insurance company
did not fulfill obligations, triggering the dispute, should take full responsibility. But
based on the insurance contract, Ping An Insurance company may deductible Baodi
branch insurance amount of 20% 50,000 yuan. Yangshuling advocates Insurance
Benefit Insurance Company Baodi support payments 40,000 yuan, with factual and
legal basis, thus ruling: Ping An Insurance Company Baodi support decision within
ten days after the commencement of compensation yangshuling insurance 40,000
yuan. Court costs 2,948 yuan, supported by the Ping An Insurance Company Baodi
burden.
Ping An Insurance Company Baodi support the appellant refuses to accept court of
first instance, to the Tianjin No. 1 Intermediate People's Court of Appeal,
request: first, according to withdraw Baodi District People's Court [2006]
Po-Min Chu Zi No. 1392 of civil judgments, remand or commuted according to
dismiss appellee's claim; Second, litigation costs borne by the appellee.
The reasons are: (1) appellee and the appellant signed the insurance contract defines
the rights and obligations of both parties, appellee did not raise objections in signing
the contract to fulfill the application process has not withdrawn. (2) insurance
companies are not the subject of insurance of all the risks have occurred in
compensation, but on the appropriate premium, the agreed compensation of specific
areas of risk. Safe harbor provisions of the insurance contract extension from the
underwriting risk on the specific definition, is the specific formulation of insurance
products, are not exempt under contract law, liability side, adding to the other
responsibilities of unfair terms. (3) the existing legal provisions and regulatory
policies are not the insurance third party liability insurance in the "third
party" to make clear the scope of the provisions of the insurance company
national insurance regulatory authorities according to relevant provisions of the
insured person's family members out of the third party, the is not illegal. (4)
the insured family members out of the third party, beyond a certain reasonable. In the
case of the common property system, the family members by accident or other injury
caused by negligence, shall bear civil liability which is equivalent to the common
property used as part of compensation to the common property of his, has no real
meaning, not eligible for compensation fill in the principles of philosophy. (5) the
appellant has stated obligations, the trial court upon the Supreme People's
Institute [2000] No.5 found appellant not entirely clear that the obligation to be wrong
because it is not legal or judicial interpretations, only applies to cases not universal,
can not serve as basis for case decision.
Appellee argued that: (1) June 15, 2000 IA Fa [2000] 102 articles on the interpretation
of motor vehicle insurance "private individual contracting vehicles for
family members divided by the independent account of economic
differences." Such as parents, brothers people separated from their separate
accounts, family members refer to each household member, not just immediate family
members are classified according to whether they are. This interpretation is consistent
with the principles of insurance contract interpretation, though has been abolished, but
not before the introduction of the new law, the interpretation is consistent with the
original intention of both parties signing the insurance contract should be held that, to
suit Adaptation of leakage outside of the management of insurance contrary. (2) The
appellant not entirely clear that the obligation, January 21, 2000 Supreme Court Law
Institute [2000] 5, approved the "Insurance Law" 18th Article,
"Contract Law" third 19 are complementary, So not entirely
clear that the appellant obligations, summary, appellant's appeal should be
dismissed a request by law to maintain the trial verdict.
[The second instance results]
Tianjin First Intermediate People's Court that: appellee yangshuling on all
its vehicles to the appellant insurance and pay premiums, the insurance contract is
established, the two sides should conscientiously carry out the insurance. Annex the
insurance on the insurance contract terms that: "insurance vehicle insured
or to allow the driver and their family members personal injury, regardless of whether
the law shall be liable for the insured, insurers are not responsible for
compensation" problems. "The People's Republic of
China Insurance Law," the 18th article: "the insurance contract
provides for exemption on the insurance provisions, the insurer in the conclusion of
the contract should clearly explain to the insured, are not clearly explained, the clause
does not produce effects." Highest People's Law Institute [2000]
5, interpretation of this clause: "For the insurance contract agreed upon in
the exemption clause, in addition to insurance policy holders on the prompt attention,
but also should be exempt from the provisions of the relevant concepts, contents and
its legal consequences, in writing or orally explain to the insured or agent to make the
insured aware of the terms of the true meaning and legal consequences.
"appellant and appellee entered into the insurance contract did not do
Disclaimer to the true meaning of the terms of the note obligations, the exemption
clause is not binding on the appellee. Appellant maintained that the two sides signed
the insurance contract clearly the rights and obligations of both parties, appellee did
not raise objections in the time of signing, due to lack of legal basis, its reasons for
claiming exemption can not be established, the Court will not support. Results of the
trial dealing with nothing wrong, the Court shall be maintained. In summary, the
"PRC Civil Procedure Law" Article 52, article 53 the provisions
of the first paragraph, may directly ruling as follows:
Dismissed the appeal and upheld the original verdict.
【Comments】
Case, the focus of controversy is the third party motor vehicle third party liability
insurance in the definition and scope of the insurance contract that recognized the
validity of exemption clauses.
First, third party motor vehicle third party liability insurance in the definition of the
scope of
At present, the court accepted the vehicle damage claims in cases in which the victim
can become a Motor Vehicle Liability Insurance (third party insurance under all that)
there is a big controversy of the debts of the object, the root cause lies in third party
dispute third party insurance on the scope of the definition. Specific to the present
case is whether the family members of third party insurance of a third party.
For motor vehicle and the driver's family members and whether the third
party third party insurance, there are three views:
The first view is that: In order to prevent moral hazard, vehicle fleet and
driver's family members do not belong to a third party; second point of
view: motor vehicle and the driver and family members in the car, not the first three,
in the car belonging to a third party; third view is that: as long as the driver is not
subjective intent, motor vehicle and the driver and family members should belong to
the third party. I agree with a third opinion. The following reasons:
First, China's existing laws and regulations are not to be insured or
insurance vehicle drivers out of the family members outside third party.
Laws of the Automobile Liability system aims to strengthen the motor vehicle
insurance was the responsibility of the driver's duty of care to improve in
order to reduce road traffic accidents. In view of this, in a motor vehicle should be
controlled, avoided the accident position with the driver to maintain and, in principle,
should be excluded from the scope of the third party, but may not violate laws and
Motor Vehicle Liability Insurance system for the establishment of the purpose of
legislation.
Sheli third party liability insurance to ensure that the third person (that is the victim)
because of unexpected incidents as personal injury Nenggou Chu Huodepeichang
from the insurance people, Bimian involving motor vehicles Baoyourenhe pilot
compensation capacity of Er Mei You get relief of the Qing Xing Wu Fa occurred.
Therefore, the motor vehicle third party liability insurance is not specific to the
interests of a third party entered into the contract, its meaning is not to be insured or
the insured vehicle the driver of the family members out of the third party, the existing
laws and regulations did not make such a provision.
Arbitrarily narrow the scope of a third party, will this car and relatives to be excluded
from a third party, will lead to the same people, the same accident, get a different
outcome is not only the social function of third party insurance can not be achieved ,
also goes against the principle of equality of our Constitution. The same is the victim
and the offender simply because the relationship between the different, not equal
protection under the law, inconsistent with the jurisprudence, it is not fair.
Second, the motor vehicle and the driver's family members and excluded
within a third party does not comply with international practice.
From the national legal provisions and judicial practice of view, countries are to
maintain Automobile Liability insurance, the principles of his nature, to maintain and
strengthen the responsibility of the driver while on the insured party and loss of the
actual control of the vehicle by the driver of injury, death, personal injury, and provide
necessary relief.
December 30, 1983 the European Economic Community (c.E.E) of "motor
vehicle insurance" 2 Directive Article 3: "The incidents that
person's liability and the liability under this Act 1 Article l, paragraph
insurance guarantees set by the insurance contract person, the driver and all other
relatives of people, who suffered damage to their relationship as the reason may not
be deprived of their insurance benefits. "The second explanation of the
reasons that made the book : "insurance contract people, drivers and all
other relatives of people, limited to human loss, the judge and the victim as to the
equal protection of third parties is appropriate."
In addition, the Korean case also sleep driving rotation of the victims who had
identified a rotation of drivers, "his humanity." Paul was the
common case of Japan, the vehicle owner, relatives, good intentions by those same,
supporting the driver, etc., "he Humanity" to run the interests of
the right and the actual control of the vehicle as a benchmark to judge.
It can be seen on the insured, maintained and drivers such as whether the victim can
be a third party, should be depending on the vehicle's control situation. The
second point to the car, car exotic distinguish a third party, not scientific, its normative
basis for another piece also inconsistent with existing laws has been repealed. In fact,
the main body of the third party coverage is not specific, but a concept of limit groups,
and only when the insurance after the accident, with a clear victim, a third party
Caibei of concrete and specific.
On first view, that the order to prevent moral hazard, should be the driver of motor
vehicle and family members to be excluded from a third party, whether in law or
moral level, the lack of adequate levels of support. There is no doubt; the car
personnel and their families together Pianbao moral hazard exists, but to prevent the
risk of Pianbao family members will range from a third party to be excluded in
advance, in fact insurers shift their business risk, is insured and their family members
as a pre-civil rights violation. The insurance contract terms need to be resolved is
when there Pianbao case, the insurer can do to, such as termination of the contract or
refuses to pay the insurance, rather than a piece of the child and the dirty water
drained. Otherwise, to impose undue detention of the insured, will eventually make it
into the position without risk to security.
Specific to the case, determined in accordance with the principles of the
aforementioned third party, appellee yangshuling's mother should not be
excluded from the scope of a third party.
Second, with regard to insurance contracts identified in the effectiveness of exemption
clauses
Currently, the vast majority of motor vehicle third party insurance contract, all
provisions of the insurance the insured vehicle, the car drivers and their families will
exclude personal injury exemption clauses, and generally in terms of Tixian format.
The effect of the exemption clause found in the understanding, also different.
"The People's Republic of China Insurance Law," the
18th article: "the insurance contract provides for exemption clause on
liability insurance, the insurer shall be made to the insured when the contract clearly
stated, unstated, that the clause does not effective." Highest
People's Research January 24, 2000 to the Higher People's
Court in Gansu Province "on (Insurance Law) Article XVII of
the" clearly "should answer to the question how to
understand" (Law Institute [2000] 5) This clause The Jieshi as:
"For insurance contracts the exemption clause in the agreement, in addition
to Zai Bao Xian Shan on the prompt attention 外 insured, Huan Disclaimer
concerned should the concept, content Jiqi legal consequences, etc., in written or oral
form to the insured or agent to explain to the insured by making clear the true
meaning of the terms and legal consequences. "
From the above legal provisions that, for the safe harbor provisions of the insurance
contract, the insurer in the conclusion of the contract should clearly explain to the
insured, that can be taken in writing or orally, so that the insured understand the true
meaning of the terms and legal consequences of that be. Two trial court case is to
enter into the insurance contract the insurer has not fulfilled the terms of exemption
clauses true description of the meaning of the obligation, to deny the validity of the
exemption clause. This processing result is undoubtedly correct, but for the exemption
clauses in insurance contracts does not seem to be of the effectiveness of this stop.
Motor vehicle third party insurance for the safe harbor provisions, some insurance
companies that claim to reduce the project risk to be passed on to set the insured and
the exemption clause, should be legally negative evaluation. Under the
"Contract Law" the 50th: the first paragraph of Article Fifth
violation of laws, administrative regulations, mandatory provisions of the contract
invalid, it shall be deemed null and void the exemption clause. Even if the insurance
company to fulfill the terms of the exemption "clearly"
obligations, will not relieve liability claims. It was also suggested, should be based on
China's "Contract Law" on the fourth 10
"provides the standard terms of its responsibility to remove the party,
adding to other responsibilities, excluding the rights of the other major, the clause
void" recognized as invalid the Disclaimer the terms of to fully protect the
format of the contract rights of vulnerable parties. Above point of view, than the
"clearly stated that" Section of the insurer's liability
to a more rigorous, more inclined to the protection of third parties.
The author believes that: the third party insurance to discuss the validity of the
exemption clause, can not discuss the nature of third party insurance. Different motor
vehicle third party liability insurance, this should be different.
1 May 2004 implementation of the "The People's Republic of
China on Road Traffic Safety Law" Article XVII: "The State
introduced Compulsory Motor Vehicle Insurance, Social Assistance Fund, set up road
traffic accidents. The specific measures by the State Council." March 21,
2006, the State Council promulgated the "Compulsory Motor Vehicle
Insurance Act," motor vehicle third party liability insurance to establish a
"dual track" mode. "Regulations" the 45th
article: "motor vehicle owners, managers from these regulations take effect
within 3 months from the date of the Compulsory Motor Vehicle Insurance insured;
the provisions of these Regulations has been a commercial motor vehicle third party
insurance liability insurance, the insurance expires, should cover the Compulsory
Motor Vehicle Insurance. "
This shows that the accident responsibility compulsory insurance (hereinafter referred
to Traffic Insurance) is a Chinese law expressly provides for compulsory insurance of
insurance, the legal basis for its existence is the first "Road Traffic Safety
Law" and the State Council, "the Compulsory Motor Vehicle
Insurance Ordinance ", but also by the" Insurance Law
"and" Contract Law "adjustments, but is a
compulsory business insurance, insurance. Traffic Insurance established for the
purpose is not to spread the responsibility of the insured risk, but rather damage to the
victim to provide the most basic protection, making traffic accident victims to obtain
timely financial Peifu and medical treatment. Traffic Insurance mandatory. Exclude a
certain extent the principle of freedom of contract in the field of motor third party
liability insurance applicable. For example, the Traffic Insurance underwriting
insurance and statutory obligations, the statutory limits of liability, statutory and
contractual terms and rates for the lifting of legal restrictions and so on. In addition,
the insurance company issued to the insured motor vehicle of any type of third party
liability insurance, can not be regarded as "Road Traffic Safety
Law" under Article XVII of compulsory third party liability insurance and
the State Council "mobile Car Accident Liability Compulsory Insurance
Regulations "section = article called" Traffic Insurance.
"
Therefore, under the "Road Traffic Safety Law," Article XVII
issued compulsory third party liability insurance, insurance companies, agreed the
case is similar to the exemption clause, regardless of whether the exemption clause to
make to the "clearly "obligations, were exempt from its claims
liability. In addition to the motor vehicle third party liability insurance contract, if
agreed upon the exemption clause, the insurance company to fulfill the terms of the
exemption "clearly" obligation, the responsibility of the safe
harbor provisions occurred accident, may be exempted responsibility for its loss.
?