A Study On Abstaining And Prohibiting Anti - Esteem System In Insurance Law

Under the impact of global economic crisis, how to spread risks has been widely attractedconsumers’ attention. This pushes the insurance business, but also brings more disputesconcerning insurance contracts. In2012, according to statistics, courts at all levels acrossour country have been dealt with more than7600cases, almost three times in2008. In these cases,nearly70%was about the comprehension of the Article16of the Insurance Law, which regulatesthe disclosure obligation of the insurant and insured. Last June, The Second Judicial Interpretationof Insurance Law has been issued. One third of the judicial interpretation explains how tocomprehend and apply the article16of the insurance law, which formally introduces Waiver andEstoppel system into our insurance law at the first time.The paper falls into three chapters as follow:The first chapter is the overview of Insurance Waiver and Estoppel, including its original andconception. As for the conception of Insurance Waiver, the paper holds the opinion that Waivercannot base on the agreement of the both parties, as well as that the element “consideration” is notnecessary. As for the conception of Insurance Estoppel, the author holds that we must take twoimportant parts into account, which are the Estoppel of contract law and the characteristics ofinsurance law.The second chapter is about the skeleton of Insurance Waiver and Estoppel. The skeleton ofInsurance Waiver has four components: the insurer or insurance agents, the subjective aspect, theobjective aspect, and typical behaviors. Besides, the application of Insurance Waiver must withinthe limits of public interest, objective facts, coverage of the policy, and non-waiver agreements.The skeleton the Insurance Estoppel contain four elements: the unreasonable conducts of insurer orinsurance agents, the subjective aspect, the reasonably bona fide reliance of the policy holder orinsured, and potential damages. What’s more, Insurance Estoppel just can just be used as a shieldand not a sword.The third chapter is about the Waiver and Estoppel in our Insurance Law. This part mainlyintroduces content and loopholes of he paragraph3and paragraph6of Article16in our InsuranceLaw, as well as the Second Judicial Interpretation of Insurance Law. In addition, the author makessome suggestions about how to build the system of Waiver and Estoppel in our Insurance Lawboth on theory and legal practice.