New _quot;Insurance Law_quot; on the protection of consumer interests

							New "Insurance Law" on the protection of consumer interests
????The existing "Insurance Law" enacted in 1995, 2002, had
done for the implementation of some WTO commitments change. In recent
years, the insurance industry to adapt to the external environment and
internal structure of the profound changes in the seventh meeting of
the Eleventh National People's Congress on February 28, 2009 voted to
adopt a revised "Insurance Law." The "Insurance
Law" is a comprehensive change, not only in the order of chapters
made adjustments, such as life insurance contracts to adjust to the
front of the property insurance contract, etc., but also delete or
modify the relevant provisions, and the original "Insurance
Law" from the 158 added to the new "Insurance Law" 187.
Amendments from the main content of this analysis, a prominent feature
is to enhance the consumer is mainly the interests of policyholders
and the protection of the insured, the insurance activities of the
parties to further clarify the rights and obligations. Protection of
the interests of consumers is divided into two levels, the insured and
the insured on the overall interests of protection; the second is the
insured and the insured the protection of individual interests.
????One of the insured and the insured the protection of the overall
interests of
????Of the insured and the overall interests of the insured
protection, mainly reflected in the legislative purpose of the
insurance law, basic principles and the Insurance Supervision Law of
the specific principles and systems.
????(A) the legislative purpose of the Insurance Law
????The newly revised "Insurance Law" Article 1 in 2002,
"Insurance Law" stipulates that the content based on the
addition of "maintaining social and economic order and public
interests" of the contents of the insurance law, the purpose of
legislation is more comprehensive, also highlighted the insurance law,
particularly Insurance Supervision Law of the nature and function,
that is, properly handle the protection of the legitimate rights and
interests of the insurance activities and maintain social and economic
order and social public interests, the specific system of insurance
law and norms of development and the understanding and application of
important guiding Insurance Law effect.
????(B) the basic principles of insurance law
????The basic principle of insurance law insurance law and basic norms
of the subject throughout the entire system of insurance law and norms
in the formulation, interpretation, implementation and study based on
insurance law and the starting point. The basic principles of
insurance law reflects the legislative intent and policy of lawmakers,
with legislation to establish standards, codes of conduct, regulatory
standards, guidelines and other judicial functions, the parties
engaged in insurance activities, the behavior of insurance activities,
but also insurance regulators must follow the basic guidelines . Only
by grasping the basic principles of insurance law, in order to better
understand the "Insurance Law" the basic spirit of the
proper application of specific norms and insurance law system. In view
of our "Insurance Law" by Insurance Law and Insurance
Supervision Law of the harmonization of legislation of the model, and
the insurance contract law relationship, and insurance regulatory law
relationship are two different legal relationships, we believe that,
in determining the "Insurance Law" the basic principles of
should be divided into the Insurance Contracts Act and the Insurance
Supervision Law applicable to the basic principles of the common,
basic principles of insurance contract law and insurance supervision
and management of the basic principles of law. On Insurance Law and
the Insurance Supervision Law of the basic principles of the common
application of the newly revised "Insurance Law" in the
principle of legality and the principle of good faith, based on the
new addition of "the principle of not harming the public
interest." China's newly revised "Insurance Law"
Article 4: engage in insurance activities must abide by laws and
administrative regulations, observe social ethics, not harm the public
interest. The public interest is the common interest of all members of
society, to a certain extent, can be said that the insured and the
overall interests of the insured is the public interest. Therefore,
establishing the principle of not harming the public interest, is to
protect the insured and the insured as a whole. We believe that the
"principle of not harming the public interest" was
established as the "Insurance Law" the basic principle is
the "Insurance Law" a concrete manifestation of the
legislative purpose. Therefore, in the insurance activities, to
properly handle personal interests and public interests. In other
words, engaging in insurance activities must first follow the
principle of legality, on this basis, to respect the ethics and shall
not harm the public interest. Respect for social ethics, the principle
of safeguarding the public interest, understanding and application of
the "Insurance Law" starting point. In the insurance
contract law, mainly at the expense of public interests of the
insurance contract should be determined to be invalid contracts
according to law. Supervision and management in the insurance
industry, law, embodied in the insurance regulatory authority
supervision and administration of the insurance industry, the
insurance market to maintain order and public interests under the
premise of protecting policyholders, the insured and the beneficiary's
legitimate rights and interests .
????(C) of the Insurance Supervision Law of the basic principles and
specific system
????Insurance Regulatory Act establishes the protection of
policyholders, the insured and the beneficiary interest. China's
"Insurance Law" Section 134 provides: "insurance
supervision and administration in accordance with the provisions of
this Law and the State Council the responsibility to follow the law,
open and equitable principles of supervision and administration of the
insurance industry, maintain insurance market order and protect the
insured, the insured and the legitimate interests of the
beneficiaries. "of the insured, the insured and the overall
interests of the beneficiaries of protection, but also reflects the
Insurance Supervision Law of the specific system, first, establish and
improve the insurance companies deal with market exit mechanism. Life
insurance operations of the insurance company is revoked or declared
bankrupt according to law, its life insurance contracts and contract
reserves must be transferred to other business in life insurance
business insurance company; can not be reached with other insurance
companies for sale agreement, the insurance regulatory authority by
the State Council shall designate a life insurance company to accept
the transfer of the business. Transfer or by the State insurance
regulatory agency designated to receive the transfer of the preceding
paragraph and responsibilities of reserve life insurance contract, it
shall maintain the insured, the beneficiary's legitimate rights and
interests. Insurance companies should also pay the insurance
protection fund, and the insurance company is revoked or declared
bankrupt, the insured, the insured or the beneficiary to provide
relief. Insolvent insurance company, compensation or insurance money
takes precedence over general insurance company owed taxes and
bankruptcy claims. Second, the insurance company should also be under
the protection of the interests of the insured to ensure the solvency
of the principle of the responsibility to extract the reserves. Third,
requiring the company to the State Council shall, in accordance with
the provisions of the insurance regulatory authority, fair and
reasonable development of the insurance terms and rates shall not
prejudice the insured, the insured and the beneficiary's legitimate
rights and interests. State insurance regulatory agency approval,
should follow the protection of public interest and prevention of
unfair competition principles. Insurance companies should also be in
accordance with the insurance contract and insurance law in a timely
manner to fulfill obligations for compensation or insurance payment.
????Second, the insured and the insured the protection of individual
interests
????Of the insured and the insured the protection of individual
interests mainly in the insurance contract law specific system design.
????(A) constitute the subjective element of liability established on
the intent and gross negligence
????Principle of fault liability is to determine the civil liability
of the most important responsibility principle. The concept of fault
has always been a controversial issue, mainly subjective and objective
fault, said fault, said two theories. Subjective fault, said that the
perpetrators of civil wrongs is the psychological state should be
subject to criticism and does not include the external behavior of the
perpetrator. Fault that the objective is that the behavior should be
some objective criteria to determine whether the fault of the
perpetrator, the perpetrator is not the fault of the subjective mental
attitude has to be subject to criticism, while that act should be
subject to condemnation of, acts of human behavior if meet certain
standards of behavior is the fault. We believe that the fault is a
combination of subjective and objective elements of the concept, is
the dominant actor in the legal and moral condemnation should be
subject to intentional and negligent acts of the state, that the
perpetrator through the violation of legal and ethical behavior shown
subjective state. Can be divided into intentional and negligent fault.
The so-called intentional, is the perpetrator foresaw the consequences
of their actions, or laissez-faire outcome is still hope that happens.
The so-called hope, is the behavior of the perpetrator through the
pursuit of certain behavioral consequences, the consequences of
efforts by the act occurred. The so-called laissez-faire, the
perpetrator is the consequences of their actions while not wish to
happen, but it does not take measures to avoid the consequences on
behavior, resulting in a kind of permanent damage. The so-called
negligence, the perpetrator is the consequences of their actions,
should be foreseen or could have foreseen and unforeseen, or it is
foreseen that such results can be avoided but credulous. In other
words, act in violation of his due care obligations. Fault can be
divided into fault or gross negligence and ordinary negligence of two
light. Gross negligence is completely not pay attention, or "lack
of skills or attention to alarming levels." Negligence is
relative to the light in terms of gross negligence, fault light is
divided into abstract and concrete light fault. Abstract light fault
is the lack of a legal notice. A good manager in accordance with
standards of due diligence, if the perpetrator fails to fulfill the
duty of care, that is, the abstract light fault. Specific fault is the
lack of light "to handle their own affairs with the same
attention." Insurance Act of 2002, the insured, the insured or
the beneficiary breach of statutory duty to set the subjective
components of the fault to fault or not as a constituent element of
the newly revised "Insurance Law" put the insured, the
insured or the beneficiary breach of statutory duty of the subjective
components established as the intentional and gross negligence. First,
the obligation to truthfully inform the insured's breach of the
subjective components from the intentional and willful negligence and
gross negligence revised. Second, the insurance accident notification
obligations, in 2002, "Insurance Law" stipulates that, based
on the increase does not comply with the insurance accident
notification obligations of the subjective components, notification
obligations of the exempt circumstances and legal consequences, that
is, except the insurer in other ways already know in time or should
know that the insurance of the accident in time, the intentional or
gross negligence, not timely notice of the accident caused the insurer
to the nature, cause, and so difficult to determine the extent of
losses, the insurer can not determine the part of, not liable for
compensation or insurance payment responsibility. The third is on the
insurer to exercise the insurance subrogation right of the insured's
obligation to assist, in 2002, "Insurance Law" stipulates
that: due to the insured's fault caused the insurer can not exercise
subrogation right to compensation, the insurer may deduct premium
payments, The newly revised "Insurance Law" put the
"fault" to "intentionally" or "gross
negligence", he incurs the insurer intentionally or by gross
negligence caused the insurer to subrogation can not exercise the
right to compensation, the insurer may deduct or require return the
appropriate insurance.
????(B) limit the right to terminate the contract the insurer,
additional rules of insurance contract can not defend
????Duty to Inform the provisions of the insured, the insurer clearly
the exercise of the Right to cancel the contract period, provided that
the insurer discharged from the subject, more than 30 days of the
exercise of right of cancellation, and its right of cancellation
eliminated; reference to international practice, the addition of
non-defense rules, clearly defined from the date the contract is more
than 2 years, the insurer shall not terminate the contract, the
insurance contract after 2 years, that is not a defense, the insurer
shall not fulfill the obligation to the insured is not grounds to
terminate the contract . A waiver of insurance law and can not defend
set rules, an insurer in a timely manner conducive to supervise the
exercise of right to terminate the contract and stable relationship
between the insurance contract, especially life insurance contract for
long-term interests of the insured under the protection of great
significance. In addition, draws on the common law system of estoppel
to require the insurer in contract when the insured did not already
know the situation truthfully inform the insurer may not cancel the
contract, shall not relieve the insurance liabilities, both to reduce
the obligations of the insured burden, but also limits the rights of
the insurer's defense.
????(C) specification standard terms and protect the interests of
insurance consumers
????Terms of format and repeated use by the parties are prepared in
advance and did not enter into the contract terms negotiated with the
other party. National laws are restrictions on the format of contracts
to correct the imbalance of interests. China based on the revised
insurance law protecting policyholders, the interests of the insured
persons, improve the description of the obligations of the insurer,
that insurance contracts entered into by insurers to provide the
standard terms, the insurer has provided insurance to the insured
shall be attached to a single terms of format, the insurer shall
explain to the insured the contents of the contract. Insurance
contract that exempts the insurer from liability, the insurance
contract should be in the application form, insurance certificate or
other insurance policy holders to make enough to cause the prompt
attention, and the contents of the articles written or oral form a
clear description of the insured; not be prompted or explicitly
stated, the terms have no effect. Also draw on the relevant provisions
of contract law, in particular the addition of a specific contract on
the terms of the insurance invalid format which provides that
"the format provided by the insurer's terms, the insurance
contract are exempt from an insurer's obligations, or increase the
insurance person liability of the insured, or to exclude the insured,
the insured or the beneficiary's rights according to law provisions
null and void. "
????(D) clearly defined the insurer claims the procedures and time
limits, the insured in order to facilitate realization of the right to
insurance claims
????For the practice of existing claims is difficult, the new revised
"Insurance Law" to increase the insurance people to
"timely one-time" notification to provide additional
information and clear to the approved time frame, that is, insurance
after the accident, under the insurance contract claim for insurance
indemnity or insurance payment, the insurer by the contract that the
insured, the insured or the beneficiary of the insurance can be
provided to provide its insurance accident and confirm the nature,
cause, extent of losses and other relevant evidence and information
does not complete one-off shall promptly notify the applicant, the
insured or the beneficiary supplement. Unless otherwise agreed, the
insurer receives the insured or the beneficiary of the compensation or
insurance payment request should be approved in a timely manner; the
case of complex, should be made within 30 days of approval. After
approval by the insurer according to the law, do not belong to
insurance liability, it shall be made within 3 days from the date
approved by the insured or beneficiary to refuse to issue or refuse to
pay insurance compensation notice of the reasons.
????(E) reducing the insurer waived the subject of statutory duty
????2002 "Insurance Law" to the insured, the insured or the
beneficiary intentionally insured and the insured, the beneficiary the
insured intentionally caused the death, disability or illness, as a
statutory duty to waive the insured subject matter. The newly revised
"Insurance Law" is limited to the insured, the insured
person deliberately insured the insured intentionally caused the
accident and death of the insured, disability or illness, not the
beneficiary intentionally insured insurer to terminate the contract
and not as a assume responsibility for statutory subject matter
insured, the beneficiary is only the loss of beneficial interest. We
believe that the deliberate creation of the beneficiary is not insured
as the insurer's statutory exemptions are reasonable, because the
beneficiaries are not parties to the insurance contract, to the
deliberate creation of an insurance accident as exemptions, insurance
contract will lead to imbalance of interests.
????(F) Limitation on insurance contracts
????2002 "Insurance Law" for the insured or the beneficiary
to the insurer a request payment of the insurance statute of
limitation is not very clear, generally considered the claim
limitation, in judicial practice as a limitation of action is often
treated. However, we believe that although the claim limitation and
the limitation is eliminate the right time, but they are different.
The right to claim limitation is the physical elimination of aging,
but does not eliminate Prescription entity the right to request that
only the right people lose the court proceedings in accordance with
obligatory right to fulfill the obligations. If by 2002,
"Insurance Law" statute of limitations on the claims
provisions, there is cross-claim limitation and the limitation of the
phenomenon. That is, in some cases, the insured or the beneficiary of
the limitation of action has been completed and the claim limitation
is not complete. In this case, if the insurer based on the principle
of good faith performance of compensation or insurance payment
obligation, but also with the law. Prescription is not eliminated
because the substantive rights. After the expiration of the limitation
of action, obligations, who voluntarily meet their obligations,
rights, still have the right to take delivery. However, in some cases,
it may be insured or the beneficiary of the claim limitation has been
completed, while the statute of limitations because of suspension,
termination or extension of other reasons is still in its period,
although the insured person or beneficiary entitled to request the
court litigation by mandatory obligation to fulfill the obligations
process rights, but have been eliminated because of substantive
rights, the insurer is liable for the damage or insurance payment,
lose the legal basis for the obligation. To perform according to the
principle of good faith in nature into a gift, subject to many
restrictions. The newly revised "Insurance Law" is clearly
time for the proceedings to modify. We believe that the claim
limitation Insurance Act is amended as more scientific limitation,
generally speaking, but also conducive to protect the interests of the
insured and beneficiaries.
????(G) on the death of the payment of the insurance contract and the
insured commits suicide
????According to the 2002 "Insurance Law," according to the
conditions of death as the payment of insurance contracts, without the
written approval of the insured amount of insurance, the contract is
invalid. The revised insurance law "written consent" to
"agree." We believe that this change insurance law
consistent with the actual situation, also in line with the
legislative intent of the article. The reason for the death of the
Insurance Law to the conditions for the payment of insurance contract
requires the insured, "written consent" or "agree"
and accepted insurance amount, its purpose is to control the moral
hazard. In this sense, only the consent of substance, form element is
not important. The written consent of the revised agreement, such
contract would not be writing this because of the lack of formal
requirements to be invalid, is conducive to protecting the interests
of the insured or beneficiary. For the insured person died as a
condition of payment of insurance contracts, China 2002
"Insurance Law" provides only two years since the
establishment of the contract, the insured commits suicide, the
insurer does not assume responsibility for payment of the insurance,
the insured does not provide the subjective components of suicide. The
newly revised "Insurance Law" to make up for this
shortcoming of the insurance law, suicide is not clearly defined
capacity for civil conduct is excluded.
????(Viii) transfer of insured property and casualty insurance
contracts and the continuation of the effectiveness of succession
????China 2002 "Insurance Law" does not recognize the
transfer of the subject matter insured caused by the transfer of
insurance contracts, of course. For a long time, when the transfer of
the subject matter insured (for example, used cars), the assignee can
enjoy the protection of the original insurance contract, a different
understanding, has been controversial, some believe that this
requirement is too cumbersome, increase social costs. The newly
revised "Insurance Law" learn from foreign experience in the
relevant legislation, recognize the transfer of the subject matter
insured caused by the transfer of insurance contracts, of course, that
is the subject of the transfer of the insurance, insurance, the
assignee of the subject insured shall succeed to the rights and
obligations. But provides for the transfer of the subject matter
insured caused a significant increase in risk insurers have the right
to terminate the contract and the insured, assignee does not perform
notification obligations of the consequences, which the insurer does
not take insurance. The system design is conducive to balance the
relationship between the parties, reduce social costs, comprehensive
protection of the interests of the insured.
????(I) increase the risk insured obligation to notify the insured
????The insurer shall be borne by the insurance contract and the
insurance premiums, the insurance is the insurance contract is the
subject of the state and degree of risk as the standard sure.
Therefore, increasing the degree of risk insured, the insurer assumes
the risk increases. If the subject of the insured risk in the
insurance increase is not timely notify the insurer, the insurer can
take the necessary measures, the insurer's interests will be damaged.
Therefore, the national insurance laws require increased risk insured,
the insured shall promptly notify the insurer. China 2002
"Insurance Law" Article 37 provides: "In the life of
the contract, increasing the degree of risk insured, the insured in
accordance with the contract, promptly notify the insurer, the insurer
may increase premiums in accordance with the contract or terminate the
contract. Is insurer fails to perform the notification obligation,
because the degree of risk insured increase the occurrence of insured
accident, the insurer is not liable. "newly revised insurance law
of the" increased risk "to" significant risk increase
", while increasing the insurer to terminate the contract
provides for the treatment that the insurer shall have the premiums
collected, according to deduct from the contract starting date of the
insurance liability the date of termination of the contract due in
part, the return insured.
????Third, the protection of policyholders, the insured and the
beneficiary understanding of the principle of interest
????From our "Insurance Law" content, the highlight in many
places on the insured, the insured and the protection of interests of
the beneficiary. If the applicant does not perform the obligations of
the subjective components from the "fault" to
"deliberate and gross negligence", and established the rules
and not abstaining during the defense and so on. However, the
insurance contract law in China highlight the protection of the
amendment to the insured, the insured and beneficiary interests, can
not be understood as the establishment of the insurance contract law
to protect the insured, the insured and beneficiary interests
principle should be interpreted as the original insurance contract in
China Law of the insured, the insured and protect the interests of the
beneficiary is not enough, leading to imbalance of interests.
Highlight the protection of policyholders the insurance contract law,
the interests of the insured and the beneficiary of the amendment,
only to correct the imbalance of interests. In this sense can be said
to modify the insurance contract law embodies the interests of balance
between the principle parties to insurance activities. For this, from
the legislative purpose of insurance law can be illustrated. China's
"Insurance Law" Article 1: "In order to regulate
insurance activities, protect the legitimate rights and interests of
insurance activities, to strengthen supervision and management of the
insurance industry, maintaining social and economic order and social
public interests, and promote the health insurance industry
development of the . "visible, mainly of insurance law and
insurance contract law does not establish the protection of the
insured, the insured and the beneficiary interest principle. Because
of the principle of fairness is the basic principle of insurance
contract law, which entered into insurance contracts, should be
consensus on principles of equity in defining the rights and
obligations. Protection of the insured, the insured and the
beneficiary principle and the principle of equity interests of the
conflict. But protection of the insured, the insured and the insurance
interests of the beneficiary principle of the basic principles of
supervision and management methods. Note that, even if the principle
is also the basic principles of insurance contract law, its meaning is
not the same. Because the relationship between insurance contracts and
insurance supervision and management of legal relations are two
different legal relationships. Relationship in the insurance contract
law, emphasizing autonomy, to "individual rights"-based,
"the insured, the insured and the beneficiary interest"
should be "individual interests." The insurance regulatory
law relationship is a relationship between macro-control, and the
insurance contract between equal entities are fundamentally different
relationship should be based on "social responsibility" as
the standard, "the insured, the insured and the beneficiary
interest" should first the "whole", followed by
"individual interests." Or to protect the "individual
interest" only a means, in order to protect the "whole"
purposes. In addition, the "protection of the insured, the
insured and beneficiary interest principle" as the Insurance
Supervision Law of the basic principles of contract law to the
Insurance and the Insurance Supervision Law of the basic principles of
the common application of the guidance and subject to the constraints
that properly handle the protection of the insured, the insured and
beneficiary interests and public interests. In any case, shall not
harm the public interest. The only way to properly implement the
protection of the insured, the insured and beneficiary interests
principle, application and enforcement of the norms of the insurance
laws and systems.
????[References]
????[1] The Trends Miao, Li Li. China's Insurance Law and Case fine
solution for [M]. Law Press, 2008.
????[2] Wang Liming, Cui far. New Theory of Contract Law General [M].
China Politics and Law University Press, 2000.
????[3] Yang Huabo. The new "Insurance Law" s [J]. Insurance
Practice and .2009, (2).
?
????[Author] Li Li, LL.M., lawyer, associate professor of Beijing
Normal University Institute of Government Management; The Trends of
seedlings, JD, lawyers, accountants registered in China (CPA), is
currently China Life Insurance Company Vice President Legal and
Compliance Department .
????[Source] Insurance Research No. 5, 2009