Research On Insurer's Relieving Right When Disclosure Duty Is Violated

The focal point of this article is the insurer's right of relieving contract, which specially occurs when the insured violate the disclosure duty. So with the clue of the right of relieving contract, I expound the disclosure duty and its violation and some situations that hinder the right in detail. There are three chapters in this article: Chapter one is the disclosure duty and its violation. Disclosure duty refers to the duty undertook by the policyholder or the insured to disclose material facts about the subject property or the insured to the insurer according to facts. Its function is to offer believable information that important enough to influence the insurer to evaluate the risk. So the policyholder or the insured should disclose the facts he knows or should know subjectively and the facts important enough objectively. So-called "should know"should be measured follow the general insured standard. So-called "material facts"should have "decisive impact"to the insurer, depend on which the insurer decide whether to accept insurance or enhance the rate or not. The violation of disclosure duty should have subjective requirement and objective requirement simultaneously. That means that subjective psychological state involves with deliberation and gross negligence and objective requirement involves with the behavior of concealing the facts or disclosing the facts incorrectly. As for the causality between the facts and the occurrence, there are three regulation modes which are so-called Causality Theory, No-causality Theory and Proportion Principle Theory. I advocate that we should introduce the Proportion Principle Theory into our Insurance Law and improve it. Chapter two discusses the legal consequence of violation of disclosure duty. The law endows the insurer with right of relieving contract when the insured violate disclosure duty. In this chapter, I express my opinion on the nature and legal consequence of the right. The nature of disclosure duty is not-real duty, violate which do not lead to right of damage claim and the insurer can't enforce the contract either. The remedy for the insurer is the right of relieving contract, which is the main subject of my paper. The right is only possessed by the insurer pursuant to law. Its nature differs from the right of revoking contract. But if the insured violate the duty by fraud, the insurer has both the right of relieving the contract and revoking the contract and he can choose one of them to protect his interest. The right differs from the right of terminating contract. For I think the right of terminating contract is not retroactive but the right of relieving contract is either retroactive or not retroactive. The insurer's right of relieving contract when the insured violate disclosure duty has some special legal consequences. I have some innovate opinions about this problem. As for the situation of relieving contract before the insured accident occurs, there's no provision about the consequence of it in our Insurance Law. So according to the general theory of contract, insurance contract is one kind of continuous contracts, whose legal force is not retroactive. Thus the insurer does not pay compensation and does not return the insurance premium. As for the situation of relieving contract after the insured accident occurs, the legal consequence is distinguished with the subject psychological state of the insured according to our Insurance Law. In this situation, the force of relieving is retroactive. But if the insured are...