Study On The Pre-contractual Obligations In The Insurance Contracting

The Insurance Law developed and implemented in 1995 has met the actual needs of the early-stage development of China's insurance sector. In October 2002, for China's accession to the World Trade Organization, we were forced to make hasty changes of this Insurance Code. China's insurance law theory and practice has not yet made sufficient preparatory work for this amendment; therefore, the necessary changes has been made in the insurance industry law, which was only suitable to the minimum requirements of the accession to the World Trade Organization, and no larger change directed at the omission of the insurance contract has been made. However, the many elements of China's insurance contract law are precisely perfected by the Legislation. For our country's economic recovery, such amendments could hardly adapt to the China's actual situation of the development for insurance industry, so China's first insurance code should carry out a large-scale amendment again. At present, China's relevant institutions are also being initiated to amend the Insurance Act, and to China's insurance law, the revision of pre-contractual obligations in insurance contracting rules is one of the important contents.In China's insurance law, pre-contractual obligations in the insurance contracting contain truthfully informing and illustrating the provisions of the rules and obligations. Informing obligation means that when the insurance contract is signed, the insurer should truthfully tell the insurant the relevant facts and situations of the insurance subject. Although the insurant has this obligation set forth in the contract, it is the statutory obligation in insurance law not agreed by the contents. Illustrating obligations means that the contractual parties should explain and clarify the contractual contents to each other when they sign the contract. In doctrine, informing and illustrating obligations, the important areas of insurance law are regarded as one of the specific performance in the legalization of the greatest integrity rules. Their implements are involved in the quality of the insurance contract, determine the future destiny of the insurance contract, and bring severe harm to those dangerous group members who want to spread the risks. According to the justice statistics in China's motherland and Taiwan, the dispute caused by the two obligations has a large proportion of the total number of the contractual cases. Therefore, whether the current insurance law of China's motherland is reasonable to the two obligations is critical for those dangerous group members who want to spread the risk and reduce the loss through the insurance contract. But, there are many omissions in the provisions of the two obligations of our current insurance law, which lead to an embarrassing situation that the legal norms on they can not adjust the contractual behavior of the parties reasonably and can not realize their purposes. The regulatory functions of the insurance law will be also affected accordingly. So, we need to reflect on both the rules of the two obligations as well as deepen their understandings.The core issues of this paper include the following four aspects:First, since the informing obligation is the performance in the legalization of the greatest integrity principle, its own inherent reasons are the economic considerations to the effective function of the insurance system and risks testing technology. This directly reflects the particularity of the subject matter in the insurance contracts.Second, the provisions about the subject of the informing obligation in China's current insurance law have significant omissions. In accordance with the allocation of the rights and obligations in the insurance contract, the insured party should be in the subject of the obligation.Third, because the provisions on methods of informing the truth in the China's current insurance law have omissions, the written legislative mode should be adopted during the future amendment of the Insurance Act.Fourth, the provisions of the party which contravenes the informing obligation in China's current insurance law do not have the necessary time limitation to insurant exercising the rights. In the future amendment of Insurance law, the necessary restrictions should be set to increase the order and time.Fifth, the provisions on the insurant's illustrating obligation in China's current insurance law have duplications with the contract law and have ignored the obligations of the consequences when the insurant contravene it. In the future amendment, current provisions should be added or deleted to adapt to the situation.This paper is divided into four parts:The first part is the theoretical basis of the pre-contractual obligations in the insurance contracting. This part explains that the function of pre-contractual obligations is to let the dangerous group members reveal the necessary information on the subject in the insurance contracting. The insurance party can complete the risk assessment only though the disclosure of the necessary information; the insured can make the knowledge, judgment and choose to what kind of methods to spread risk and reduce the loss only through the information about the contract revealed by the insurance party. The insurance system can be ensured to function effectively only when the two parties cooperate wonderfully and the basis is the greatest integrity rule.The second part is the pre-contractual obligations of the policyholders in the insurance contracting. This part explains the legal sense, nature and function of informing obligation. Firstly, this part analyzes the etymology and meaning of informing obligation and clarifies the particular significance of informing obligation in the insurance law. On the dispute existing in the nature of the informing obligation in the doctrine, analyzing various theories, assessing the gains and losses of the analysis, it points out the reasons why the informing obligation is unreal and analyses the implementing methods, time and other issues on the subject's informing obligation of China's current insurance law. Secondly, through the analysis of the omissions existing in the provisions to the subject, it points out that the scale of the subject of the informing obligation should be expanded and it is reasonable for the insurance party to be the subject.Thirdly, it inspects the standard-setting and other problems of other countries in the legal practice of the informing obligation and provides a guideline of legal definition of the future insurance law. Finally, in the basis of analyzing the subjects, the scope of the information and the implementation approach of informing, it focuses on the legal consequences when the subject contravenes the informing obligation.The third part is the pre-contractual obligations of the insurer in the insurance contracting. The exposition of this part mainly clarifies the legal sense, nature and function of the illustrating obligation. First, it explains the etymology and meaning of the illustrating obligation, clarify the specific significance of the illustrating obligation in the insurance law, discusses the disputes existing about the nature of the illustrating obligation in the doctrine, points out the reasons why the illustrating obligation should be unreal, and analyzes the implementation approaches, standards and legal consequences when the subject contravene the obligation, etc..The forth part is the legislative perfect of the pre-contractual obligations. This part mainly analyzes the insufficient provisions of the pre-contractual obligations in the insurance contracting in the China's current insurance law, and provides the specific design rules of the amendment to the insufficiency. First, through the analysis of the current situation of pre-contractual obligations in the China'insurance law, it points out many problems existing in the current obligation, the ideological norms of improvement and law existing measures. Finally, in view of the existing imperfect in the Article 17 and 18 of China's current insurance law, it raises the specific design of legal rules for its perfect and gives the legislators advice when the next amendment of the insurance law begins.