The System Construction Of Group Insurance Contract

Group insurance,which was born in the early twentieth century,is an innovation and upgrade of individual insurance.In the mechanism of group insurance,the group is the dangerous unit and the mode of "post underwriting" is adopted.In terms of mathematical mechanism,the average rate system and the empirical rate system are adopted,showing a considerable economies of scale.In the form of contract,the main contract and insurance certificate coexist;In the purpose and function of the contract,it has the color of employee welfare and livelihood security,which is obviously different from the individual insurance.Therefore,no matter its system design and arrangement,or legal interpretation and application,group insurance should be different from individual insurance.In view of the relevant provisions of China’s current insurance legal system,the legal norms of individual insurance are overemphasized,while the legal norms of group insurance are insufficient.Although the insurance benefits and beneficiaries of "enterprise-employee" group insurance were solved by adding clauses in Articles 31 and 39 when the Insurance Law was revised in 2009,the above legislation is fragmentary and lacks systematicness.The Notice on Promoting the Healthy Development of Group insurance issued by the former China Insurance Regulatory Commission(CIRC)in 2015 not only focuses on the supervision of public law,but also has a low legal rank.Therefore,there is still the problem of insufficient supply of group insurance contract system in China.This paper focuses on the construction of group insurance contract system.On the basis of sorting out the differences and disputes in theoretical and practical circles,it is hoped that the following problems can be solved by using the methods of law and economics,legal hermeneutics,empirical analysis and comparative law: How to set the eligibility requirements of the insured group based on the consideration of controlling adverse selection? Whether the current insurance law on insurable interest can meet the need to prevent moral hazard,whether it is necessary to improve,and how to improve? Given that group insurance covers most of the insured with a single policy,should the information supplying-duty of group insurance contracting be different from individual insurance? In order to realize the function of group insurance employee welfare and people’s livelihood security,how to construct the corresponding system to protect the rights and interests of group insurance insured employees? And so on.Firstly,based on the consideration of controlling adverse selection,it is appropriate to set qualified requirements of the insured group to ensure the normal operation of the group insurance mechanism.Examining the eligibility requirements of foreign insured groups usually includes the limitation of the purpose of the establishment of the insured group,the minimum number of the insured group,the minimum proportion of the insured group,the prohibition of part-time members from participating in insurance,participating in insurance only after trial period,the requirement of participating in insurance during the qualified period,and the insured members working normally on the job,etc.Considering the current norms and the needs of the development of group insurance in China,on the basis of defining the purpose of the establishment of the group and the minimum number of the insured group,we should list the types of the insured group clearly.At the same time,we should incorporate into the eligibility requirements of the prohibition of part-time members from participating in insurance,the requirement of participating in insurance during the qualified period,and the insured members working normally on the job.As for the minimum proportion of the insured group and participating in insurance only after trial period,these restrictions should be empowered to be determined by the parties through contract negotiation,and should not be set as the statutory eligibility requirements of the insured group in order to adapt to the flexibility of the transaction.Secondly,in terms of moral hazard prevention and the improvement of insurable interest rules,we should face up to the fact that our current insurance law only solves the problems of insurable interest and moral hazard prevention in enterprise-employee group insurance.For non-enterprise-employee group insurance,there are still some hidden worries about the lack of insurable interest and the task of moral hazard prevention.In the fact that China’s insurance law adopts the "three-division method" in the structure of rights and obligations of insurance contracts and the mixed legislation of "interest doctrine" and "consent doctrine" in the insurable interests of enterprise-employee group insurance,taking into account that the moral hazard of group insurance is relatively small and it is not only inefficient or even impossible to obtain the consent of each group member,we should improve our insurable interest system from the following two perspectives in order to meet the special needs of group insurance.One is to exclude the application of the agreement rule of the insured in the field of group insurance.Second,on the basis of the legislative model of "interest doctrine",expand the types of insurance interests through legal fiction,and take the responsibility or obligation of the group to its members as the boundary of insurance interest expansion,so as to achieve the balance between moral hazard prevention and contract transaction cost control.Thirdly,on the disclosure of group insurance contracting information,the paper mainly analyzes the applicant’s duty of disclosure and the insurer’s obligations of presentation and explanation.China’s Insurance Law stipulates that the subject of the duty of disclosure is the applicant,and the object of the insurer’s obligation of presentation and explanation is the applicant.However,the academic circles generally believe that the subject of the duty of disclosure should also include the insured,and lots of scholars believe that the object of the insurer’s obligations of presentation and explanation should also include the insured.Based on the fact that the insured is the object of risk assessment and the subject of insurance contract,the above viewpoint is quite reasonable in the field of personal insurance,but it is inappropriate to apply it to group insurance.The dangerous unit of group insurance and underwriter are group,and information such as important facts that determine the size of the group’s risk is held by the group,not usually be known to the insured.Accordingly,with different of individual insurance,the subject of the duty of disclosure in group insurance ought to be limited to the applicant.Only when the insured group is small,it is necessary to ask the insured.Moreover,from the cost and feasibility of asking the insureds by the insured,group insurance is different from individual insurance,especially when the insured group is large.Similarly,the insurer of group insurance contract is required to fulfill the obligation of presentation and explanation to each insured,especially when the insured group is large,it will damage the cost advantage of group insurance,even in the group insurance contract that the insured has not been determined at the time of signing contract,it has no performance at all.Therefore,it is more reasonable to limit the object of performance of group insurance contract’s obligation of presentation and explanation to the insured if we consider the factors such as the high standard of the obligation itself and the promotion of the trading status of the applicant in group insurance contract.Finally,in terms of the protection of the rights and interests of the insured employees in group insurance,the rules of partial validity,the rules of restriction the applicant’s right to terminate the contract arbitrarily and the insured’s right to contract conversion are discussed.In terms of partial validity rules first,although civil law theory has partial invalid rules of contract,it still differs from the partial validity rules in group insurance contracts.Moreover,General Principles of The Civil Law of The People’s Republic of China and Contract Law of the People’s Republic of China do not expressly stipulate the constituent elements and judgment criteria of the partial invalid rules of contract.In view of the group insurance contract in the form of a policy to cover more than one insured,in order to achieve a single insured’s right of insurance protection is not affected by the behavior of other insured,the partial validity rules in group insurance contracts should be established.In terms of the restriction of the applicant’s right to arbitrarily terminate the insurance contract second,due to the difference in interest demands between the applicant and the insured,a reasonable restriction should be made on the applicant’s right to arbitrarily terminate the contract in order to satisfy the needs of employee welfare provision of group insurance.On the restriction path,considering the theory of dissolution and termination of the contract in the general contract,including the third party beneficiary contract,the applicant’s enthusiasm promoting the development of group insurance,and the cost of getting insureds’ agreement,it is more appropriate to abandon the theory of the insured has the right of dissolution and the theory of the insured’s consent,and to adopt the theory of the insured’s should be notified.At last,in order to make up for the shortcomings of group insurance,especially group periodic insurance,realize the purpose of providing the insured with sustained insurance guarantee,and enhance the function of group insurance in protecting people’s livelihood,the insured should be given the right to claim individual insurance without providing proof of insurability when the insured loses the group insurance guarantee due to the termination of the contract and other reasons.The insurer provides him with a personal insurance policy.Furthermore,we can set up a convenient transition channel between group insurance and individual insurance,which can not only enhance the welfare function and attractiveness of group insurance,but also provide the insured with continuous insurance protection.Based on the above research,it is proposed to add "group insurance" section in Chapter II "insurance contract" of the Insurance Law of China in order to complete the systematic regulation of group insurance contract system,and draft the legislative proposal for the special section of group insurance contract as the conclusion and suggestion of this paper,with the hope of perfecting the legislation of group insurance in China,guiding the operation of group insurance,and being beneficial to regulate the development of group insurance.