Obligation To Inform The Insurance Law Study

The duty of disclosure comes from the early marine insurance. Theobject is often in policyholder or under the insured's control. They are theclearest of the relevant dangerous fact, The insurer only relies on theinsured's disclosure to understand the statement of the object, and truststhe policyholder or insured's statement, therefore, the insured has the dutyto disclose the dangerous condition of the object. This is the descriptionof the state that the insurer is in the early marine insurance. But sincemodern times, with the science and technology progress, the humancivilization development as well as, has insurance experience graduallyaccumulated, the insurer guarantee method isn't like early marine insurersuch sole, in other words, The insurer is not ignorant like the early timemarine insurer. The time that only relies on the policyholder or theinsured's disclosure to appraise risk already ended. Facing such change,we question that, since the basis and premise of the duty of disclosure hasalready changed, the duty itself has the necessity and the rationality toexist? If the answer is affirmative, how remolds this system to meet thenew time's need? With these questions, this article takes" theory basis ofthe duty of disclosure—who fulfill the duty—the content of the duty ofdisclosure—the consequence of violate the duty of disclosure" as theprimary line, using comparison analytic method, economics analyticmethod to study the duty of disclosure systematically, The full textdivides into four chapters altogether. The first chapter limits the nature and the theory basis of the duty ofdisclosure. This chapter starts from the implication, limits the differencebetween the duty of disclosure and other duties (notice, explanation);thefollowing closely limited its nature, recognized the duty of disclosurebelongs to first contract duty; it is unreal duty. Finally limits the basis ofthe duty of disclosure, through analyzing unfairness and the flaw of eachtheory, proposed that we should explain theory basis of the duty from theangle of economics and law: from economics, to avoiding muchtransaction cost, should stipulate the policyholder the duty of disclosure ;from law, based on the benefit balance consideration, law stipulates theinsurer the duty of explain, at the same time, should stipulate thepolicyholder the duty of disclosure. The second chapter researches the body of the duty of disclosure.This chapter solves the problem that who fulfills the duty. First,comparing the legal regulation among German,France and Taiwandistrict of our country, and standing in the benefit balance angle, Whenthe policyholder and the insured are inconsistent, who discloses includenot only policyholder, but also the insured and policyholder's agent—insurance broker. About the relative person's question of disclosure, theauthor recognized the relative persons include: insurance agent, insurer'sclerk, physical examination doctor. The third chapter researches the fulfilling of the duty of disclosure.This chapter solved the question "type of the duty", this chapter throughseeking correlation legislation, the theory and the legal precedent of thetwo legal system, analyzed the date, the way and the content of the dutyof disclosure. Propose the following basic positions: Based on synthesisconsideration to the present situation of our country insurance businessand the benefit balance of the policyholder and the insurer, consummatesthe related rule about duty of disclosure. Consummating the way offulfilling of the duty, stipulating the policyholder must disclose in thewritten form, establishing "the written inquiry ", consummating the scopeof the duty, specially the rule about avoiding the duty, affirming " the itemwhich the insurer already know, the fact which the insurer should knowand the item the policyholder is unable to learn about" are not in thescope of the duty of disclosure. The fourth chapter analyzes the legal consequence of violates theduty. This chapter unifies legislation of two legal systems and theanti-insurer's right...