On The Influence Of Open Environment On The Construction Of The Legal System Of China's Insurance Regulation

There are many chances provided for progress of our insurance industry in such an open environment at present together with the great pressure that we never met, and the insurance regulation of China has been burdened with pushing the development of our insurance market. In order to study the legalization of China's insurance regulation which is very helpful for the development of our insurance market, this dissertation will be focused on the study of the challenges that our insurance regulation will meet, and analysis the advantages and disadvantages brought by such pattern of government-leading insurance regulation based on the review of the insurance regulation system in western countries and the development of that in the international society.The review of the WTO Regulations and China's Commitments give us a rough comprehension of the open environment of our insurance regulation. The review of the insurance regulation system in western countries and the development of that in the international society helps us to get an understanding of the direction of the development of China's insurance regulation, meanwhile, by comparing we will get to know the gap between our country and developed countries of the market industry and insurance regulatory system and the great stress on us in the open environment.In the open environment the tight regulation of China will change into a minimum regulation that emphasizes particularly on the regulation of solvency, and that means, the regulator should unfasten the regulation of what they shouldn't regulate such as contract terms and rates and fasten what needs to regulate such as the control of risks. Notwithstanding the point of view insisted by many scholars and the Insurance Regulatory Committee of China, the author stresses that our regulator has be used to pay too much attention to the regulation of market behavior and regulates much what they shouldn't regulate much, which results in the waste of resource of regulation, and in such circumstance, we shall emphasize on the regulation of solvency.In the open environment it is impacted on the sector regulation as well. As to the sector regulation, there is a big problem of regulating domestic and overseas mixed operating financial holding corporation that are developing rapidly. Wether to set up integrated regulation institution by revising the law or to strengthen the connection between the regulation of sectors to cover the leak and prevent the refrain of regulation shall be tested by the practice, and the criterion of the test is whether leak and refrain of regulation exist. If the object can be reached through sector regulation, the integrated regulation will be of not too much importance.There are two tasks imposed on China's insurance regulation that are supervising and developing our insurance industry. The regulator has made much contribution, but there still exists many problems of such government-leading pattern both in theory and by demonstration, so to prevent the abuse of power when government playing a positive role is the main subject of our insurance regulation.In the open environment the insurance regulation needs to be legalized. WTO Regulations requires that WTO contractors shall abide by the principle of legal regulation, and China has promised. Marked-oriented reform requires the administrative intervention substituted by legal regulation, and the government-leading regulation should be legalized to avoid the administrative power running out of line. The dissertation states that with orientation the regulator may abuse the power to benefit the insurance company and damage the interests of consumers when performing their duty. If there are not enough limitations on the discretionary power of the regulator, the regulator may abuse its unlimited discretionary power. Since our legal system still needs to be revised, many times the law assigns the obligation of legislation to the insurance regulator or the government, or the government will resign its obligation of legislation to insurance regulator. Accordingly the regulator not only plays the role of judges and coaches, but also establishes rules. The regulator's power can be restricted only by the way of legalization. Besides, legalization is the key to solve problems brought by the existence of government failure and the influence of regulation on economic efficiency and it is helpful to decide the direction of our insurance marketed-oriented reform.The first step of the legalization of insurance regulation is legislation which is also the core step since legislation is the origin. We shall pay attention to the following issues. Firstly, although The Insurance Law of PRC has constituted the principle of freely setting insurance contracts clause and rates, this principle hasn't been abided by well since the law left much room for the over-interference of regulator. Secondly, regulation on forms of insurance companies cannot accord with the demand of the developing society and other forms including insurance cooperation should enter the sight of insurance legislator. Thirdly, it is enacted a high standard to the market access and it's too strict for the examination and approval of insurance companies'application for establishing branches. As to insurers who fail to operate in the market any longer the law should offer them the exit mechanism, and to set up the safeguard funds may solve problems brought by the exit of insurers from the market. Fourthly, the power of regulators is short of necessary restriction and there are too much room of their power when examining and approving the establishment of companies, taking over insurance companies and running insurance safeguard funds. Then, to the insurance capital, although the legislation is softening the control of it as a whole, it still needs to be softened much more. Moreover, the restriction to the regulator of legislation is too little to restrict its delaying of legislation and refrain of authorization when authorizing the regulator to draft laws, and many problems have been caused in the practice. At last, the legislation of regulator should be examined whether its validity.There exist some conflicts between insurance regulations, such as conflicts of issues on the regulators of competition between the Insurance Law of PRC and the Anti-Unfair Competition Law of PRC, and conflicts of provisions of vehicle traffic accident responsibility force insurance between the Insurance Law and the Law of The PRC On Road Traffic Safety. The conflicts between administrative regulations, local regulations and laws should be amended abide by the principle of legal force graded.The following step of legalization of insurance regulation should pay attention to regulation of the execution of law. The demonstration analysis on the regulator's examination and approval of the liability limit of vehicle traffic accident responsibility force insurance verifies the core viewpoint of this dissertation that the government regulators may abuse their power when performing their duty and their performance of duty should be supervised and restricted. Moreover the legalization of insurance regulation cannot be implemented without legal regulation to supply the gap of legislation, supervise administrative regulation and solve problems left in former steps.The innovation of this dissertation consists in its unique angle of research.Most studies on insurance regulation presently are economic and even law scholars cannot break away from base point of view of the system economics when studying legal issues on insurance regulation. Normally in their research just some particular issues are mentioned and they have not discussed insurance regulation with legal angle systematically. Present researches of insurance regulation looks like the appendix to research of the insurance. Nevertheless it is discussed that in the open environment the insurance regulation of China has been burdened with tasks of regulating and pushing improvement, and thus the regulator in the government-leading insurance regulation pattern becomes the leading strength of the development of out insurance market, and the following statement of the dissertation carries on about the construction of legal system of China's insurance regulation.Novel angle of research leads us to a new field of research, and eyes on insurance regulation should not only be put on the relationship between the regulator and ones to be regulated, but on how to be shifted from that how the regulator to regulate effectively to that how to make the regulator to regulate effectively, that is to say, how to regulate the regulator effectively. To this question, the answer is legalization in this dissertation and it is indicated the signality of legalization to China's insurance regulation and steps and ways of reach the legalization. These researches have filled up the gap of research on the legalization of China's insurance regulation.With the new angle we can find new ways to solve many problems argued for long time as well. For example, our market of insurance agency develops slowly and many problems are mainly caused by the breach of rules exists, and traditionally respects of the thoughts of scholar and policies adopted by our regulator to solve problems in this market are mainly how to regulate the insurance agencies more effectively and they all consider strengthening the regulation as fundamental ways to develop the market. However in this dissertation, the author takes the view that these views have only disclosed the external appearance while not the reality. And it is stated that the main reason of underdevelopment of insurance agency market is that the insurance companies have not taken its right position and the regulator has not taken available measures to intervene this problem. Furthermore available measures have been discussed in the following contents.