Study On The Incontestable Clause Of Chinese Insurance Law

Incontestable clause, also known as indisputable terms, was first in the UK.U.S. life insurance companies in practice, in order to limit the insurer because the insured's breach of this obligation and have the legal right to terminate the contract Generated to develop.Terms of non-defense has gone from the voluntary provision of individual insurance companies to the general industry practice, to The statutory provisions of the long process of development.And in the process of development,continuously expand the functionality to extend the insurance.Non-defenseThe basic meaning of the terms from the effective date of the insurance contract, over a certain time (usually two years), the insurer shall be based on Insurer in the contract at the beginning of false statements, the grounds of violating the duty to defend.Its essence is to balance the insurer Between the insured and the interests of both parties, people's right of cancellation of insurance limit to protect the insured's reasonable expectations and trust Interests.In exercising the right of cancellation in limiting the provisions of which, there Waiver and estoppel system.Defense articles and non-functional And effectiveness are very similar. Waiver and estoppel are the common law to balance the interests of the insurance contract, the importance of the parties System.Abstaining is a system of contract law, refers to the insurer is expressly or impliedly, to give up right to terminate the contract and anti-Right of, their behavior will make a reasonable third person that he give up his rights.Estoppel is equitable Almost American Concept refers to the words and deeds of one of the parties to implement an act to mislead the other party and to cause damage, then the legal resistance.The only party to exercise the rights and deny the facts, which occurred can not be denied.Terms and waiver can not defend Although estoppel applicable.With the conditions and provisions during the insured person the awareness level of trust is very different, but all from the protection of the insured, the insured Trust perspective, limiting the insurer's right of cancellation.Terms of non-defense as one of the key provisions of the insurance contract in 2009, is a comprehensive introduction of the "Insurance Law" has become the fixed terms of insurance contracts.However, due to provisions are too general, making it a lot of problems.First, my new "Insurance Law" Article 16 provisions on non-defense provisions without any exceptions.Looking at the provisions of national legislation on non-defense, non-defense clause for the exception of the provisions are applicable.Terms of non-defense exception to the provisions of means will not produce a lot of omissions, such as the implementation of the insured or the insurer of fraud, even if the policyholder or the insured's fraudulent acts constitute a crime, as long as the defense of two years, the insurer should unconditionally undertake insurance liabilities, which is obviously unreasonable.Terms of defense need not be fraudulent, the contract is invalid and not have to fulfill the contract obligations and other issues related to exceptions.To balance the interests of the insured and the insurer to avoid the adverse consequences of overkill. Second, China's "Insurance Law" stipulates that non-defense provision applies only to insurers based on the insured, the insured did not truthfully inform the "important" and the false declaration of age, the right of cancellation arising.The right to terminate the contract only for the effectiveness of the insurance, and only in these two areas, does not involve coverage.This is largely a defense against the provisions of the legislation is not the original intention, is not conducive to protecting the legitimate interests of the insured parties, hindering the provision non-defense functions and role of the normal play.Throughout the national legislation, can not defend the terms of coverage, exclusions exceeded the scope of defense, has become the trend of national insurance legislation.China's legislation in the experience of other patients on the basis of national legislation on the insurance bad faith defense provision is not applicable to circumvent the situation, by strengthening the insurer of "exclusion" of the note obligations and to avoid non-defense recognized insurer agreed the terms for the "excluded responsibility "are malicious and other measures to avoid the mandatory provisions of law to be perfect. Third, non-defense provisions of the scheduled period of two years, two years after the insurer loses the right of cancellation.Not defend the right to terminate the terms of the scheduled period.This is a concrete manifestation of the value of security and order.But in China, "Insurance Law" requirement, the starting date for the scheduled period and recalculated after the reinstatement of the time is not specified.My analysis, not defense articles scheduled period should be from the insurer agrees to underwrite the start date of calculation.Contract is for two years, the insured does not exercise the right of cancellation, the insurance contract to determine the effectiveness of that, the right of cancellation is eliminated.The contract is effective undone the original contract, the calculation should not be a defense of the establishment of the date of the original contract. Fourth, China's "Insurance Law" Article XVI "deliberately or by gross negligence, the insured fails to perform the obligations, the decision could affect whether insurers agree to cover or increase the premium, the insurer has the right to terminate the contract..." this obligation system is a concrete manifestation of the principle of utmost good faith, information asymmetry is the legal course to truthfully inform the policy holder obligations.However, due to limited knowledge, the insured or the insurer is difficult to grasp what "facts" cause "sufficient to affect" and truthfully inform the specific range.First, determine the cause of the "could affect" the "important facts" in different types of insurance that should be identified differently.Decide whether the insurer agrees to underwrite the important facts in the life insurance, the insured's age, sex, history status, current health status, family history, occupation, income, hobbies, etc. are all of the important facts covered by the Underwriters; andIn property insurance, the insured property, properties, materials, and belong to the basic condition of the insurer decided to cover the important facts.Secondly, for the accurate disclosure of the scope of legal provisions should be fixed in the form, clear the scope of inquiry and informed, to set policy as detailed interviews with project, and thus the obligation to inform the insured to restrict the infinite.