Category: Insurance tips Release Date: 2006-08-01
China's "Civil Law" under the impact of contractual reasons, equally applicable to insurance contracts, but the insurance contract is a contract of utmost good faith. To implement the principle of utmost good faith implementation of the national insurance legislation also guarantees makes provision for this and other factors.
1 to inform
Inform the insured in the insurance contract should be entered into the relevant key facts truthfully explain to the insurer, known as the obligation of disclosure. This is not a contract, since before the establishment of this exists in the contract did not exist between the rights and obligations of insurance contracts. Therefore, the insurer can not force the insured to fulfill this obligation, the insured did not fulfill the obligations of the damage caused, unless the fraud constitute infringement, does not enjoy the right to request damages.
On the notification form, may be based on the actual situation, using both written and oral form. For this content, subject to a different national insurance legislation, first, take an objective doctrine, that is, inform the content of the law no certainty provides the insured with the dangerous situation on the fact that all the relevant circumstances have an obligation to truthfully inform the insurer. Second, is to take subjectivism, that is insured only for the insurer asked questions about the obligation to truthfully inform, to ask the question away from the live notification obligation. In other words, that is, the insurer a written inquiry to determine as a matter of risk and insurance-related "important facts", as long as the insured truthfully answered the insurer's inquiry, that is, that fulfilled the obligation of disclosure. Inform the insured of the fact that there are three, one insured known to determine the existence or the occurrence of the facts; Second, the insured hope or believe the facts occurring in the future; third, unrelated to the insured from the third person at the situation that convey to the insurer of the facts. There exists an obligation to inform the insured in the contract before the insurance contract, once established, the rights and obligations between the parties had determined that the insured even if they know the important information, nor has a notification obligation, as increased risk, notification Chuxian such notification obligation, we are not here call notification obligation. But the conclusion of the contract terms after the amendments to the contract, the insured person in respect of the relevant facts should be honest to inform the insurer.
A breach of this obligation There are two main types, one informed uncertainty, second, failed to inform. This uncertainty means that the insured the contents of this inconsistent with the facts. This is not true may be based on the insured who willfully, it may be caused by the fault based on the insured. But in any case, as long as the insured does not really inform the content of an important fact, resulting in a wrong estimation of risk insured, then constitutes a breach of this obligation. Accordingly, the insurer may discharge the insurance contract. At present, the national insurance legislation and insurance practices of the insured in this respect not true, should be relaxed. First of all, the insured against the insurer a written or oral response to inquiries, so long as consistent with its subjective honesty, that is, when the policyholder inform the content of this right can be sure of. Second, the policyholder inform them of their hope or believe in the future happen, unless constitute a warranty or fraud, even if the facts inform the content and the future does not constitute a false tell. Again, the insured to the insurer quoted from the unrelated third party at the information received, unless the quoted error, although later proven otherwise, the content is not true that the insurer can not lift the insurance contract accordingly. Finally, this is not real, if not out of malicious deception by the insured, the insurer may also take other treatment methods, such as premium rate corrected to reduce the amount of compensation, etc., would not have to cancel the contract.
Refers to the insured failed to inform the key facts about the failure to inform the insurer, failed to inform can be divided into two kinds: one is hiding, refers to the insured knew the key facts about the situation, but deliberately did not inform the insured persons; second omission, I wonder if the insured is the result of negligence or, having knowledge of the situation but did not recognize it as important facts or, having recognized its importance but inadvertently been omitted from this to the insurer. Whether hidden or omitted, as long as the content does not tell the essential facts, and the estimated risk of errors caused by the insurer entered into a contract constitutes a breach of this obligation.
In different types of insurance, the requirements of the degree of this obligation is different from marine insurance contracts are generally more stringent requirements imposed on the obligation of disclosure, as long as there is the fact that violations of this obligation, the insurer can cancel the contract or refuse to bear the liability insurance. In other insurance contracts, the insured as long as the breach of this obligation is not willful, and the consequences were not serious, the insurance can not serve as grounds for terminating the contract.
For the legal consequences of breach of this obligation, national insurance legislation inconsistent with the provisions, some countries in order to fulfill the obligations of the entry into force of the elements of the contract, breach of this obligation, then the insurance contract void ab initio. Some countries to inform the breach of the obligation to lift the reasons for the contract, that insurers have right of cancellation within a certain period, either exercise the right of cancellation lift the insurance contract, they can give up right of cancellation, while the other approach, such as changes in insurance premiums rate or the amount of such insurance, insurance contracts remain in force. According to China's relevant laws and regulations, the insured party breach of this obligation, the insurer the right to cancel the contract or liable.
Second, to ensure
Guarantees are generally in the insurance contract be clearly defined in written form. Assurance and this is different from this is the establishment of the insured before the contract obligations; and constitutes a guarantee is an integral part of the content of insurance contracts. In addition, for the authenticity of the contents of the insured informed, is still subject to the insured to prove, and the breach of this obligation to the insured a certain degree of restriction, and only up to a certain extent, the insurer in order to lift the insurance contract; while the insured is presumed to ensure the contents of the that it was true and, if violated, whether intentional or negligent, and whether or damage to the insured, the insurer has the right to cancel the contract or refuse to bear the liability insurance.
Whether the matter under the bond does exist, to ensure recognition can be divided into assurance and guarantee. Recognized guarantees are insured against the particular facts of a past or present existence or non-existent guarantee. For example, a person life insurance policyholders to ensure that in the past five years, never suffering from a cold. As for the future are suffering from a cold, then do not ask. Committed to ensuring that it is a given fact that now exists or does not exist and continue until the future or in the future, the fact that the presence or absence of a guarantee.
According to ensure that there is in the form of guarantees can be divided into express warranty and implied warranties. Express warranty is in the insurance contract specified warranty. Implied warranties is although not specified in the insurance contract, but the habits that are insured under insurance or the insurer should ensure that certain matters. Implied warranties generally applicable to marine insurance, the main three: First, seaworthiness of the ship has the ability; 2 is not changed voyage; three are legitimate voyage.
Since the guarantee of the terms of the insured and the insured person requirements are very strict, such as the abusive use of the insured and the insured person at a disadvantage. Therefore, the terms modern insurance law to ensure multi-restricted, mainly as follows: ⏿the content must be important to ensure the facts; ⏿must be clearly set out in the insurance contract, if it is contained in attachments such as in a single insured, the insurer shall be issued by the insurance policy be recognized; ⏿the insured or the insurer breach of warranty obligations, the insurer should send written notice before they can lift the insurance contract.
3, waiver, loss of power and inter reprimand during
Abstain from voting, losing power and exclusion of the period except for the protection of bona fide interests of the insured, the insurance man-made laws to limit the rights of the insured against requirements.
I abstain. Means the insurer or insurers to give up because of the insured obligation or breach of this warranty arising from the right of confrontation. Such as contractual right of cancellation, refusal to bear the liability insurance rights. Against the insurer to give up the right to act, you can explicitly or implicitly expressed in two ways. Insurance agent for the waiver, said the consequences borne by the insurer. Insurers are to give up against the right to re-claim is precluded.
Ii lost power. The insurance contract of insurance a person who knowingly defective or the insured and the insured person who contravenes this obligation or guaranteed the right to enjoy confrontation, but in order to enable the insured or the improper conduct of the insurance contract that insured flawless, then the insurer against the loss of Right. Loss is the difference between right and abstain from voting, which is based on the insurer's intention as a legitimate act, the former is the result of a certain subject of law to deprive the insurer of the right of confrontation, so by the insurance agents as a waiver, it should examine its agency authority, the agent only if the agency within the purview of the waiver for the conduct of insurance professionals binding. In the loss of the right occasion for the job as long as the insurance agent's behavior, even if the insurer is not authorized, nor for its binding force, should bear the consequences of loss of the right.
Iii In addition to reprimand during the period. Against the insurer the right to be exercised within a certain period only, more than the right during the extermination, no further claims. In addition to reprimand during the mandatory insurance law generally provides that the parties shall not agree to change. However, some countries also allow the parties to agree to an insurance contract "non-compete clause" of the period, the legal recognition of their effectiveness.
In short, where the duration of the insurance contract, because from the beginning or later there things that affect the effectiveness of insurance contracts, resulting in the effectiveness of insurance contracts in an unstable state, by abstaining, lost power and stability in addition to exclusion of the period to make it in order to ensure that insurance valid subsisting contract.
