The Performance Guarantee Insurance Contracts

The bonds, especially performance bonds play an important role in the world where the credit system will be perfect gradually. This system not only builds up the debtor's credit, but also promotes the transaction of the goods and benefits the perfection of the insurance. However the performance bonds in China fall behind with that of America both in theory and practice. In theory, the researchers focus on the meaning and nature of the bonds. In insurance practice, the performance bonds develop slowly and have some shortages, such as managing slack. In the legislation and judicatory practice, different courts will use different laws to deal with the same dissension of performance bonds because our insurance law lacks provisions about it. In the view of these phenomena, this article tries to study performance bonds in the round. During the course of writing this article, the methods, such as the analysis of demonstration, are used. Referring to the datum which I have found, the article defines the meaning and nature of the performance bonds at first. Basing on the contracts' clauses of the performance bonds which belong to few big insurance companies and the cases existing in the judicatory field, this article studies the construction of system and the disposal of the dissension, trying to giving some flimsy advice to perfect the performance bonds. In details, this article, which covers a preface, consists of four parts.The first part, the nature and merit of performance bonds. There are three standpoints, which are broad sense, narrow sense and eclecticism, about what's the performance bond. The article regards the performance bonds as one part of credit insurance, and discusses the relation among performance bonds, guarantee contracts, credit insurance and liability insurance. In the nature of the performance bond, the author believes that the performance bond, which has the nature of insurance, is a branch of credit insurance, basing on the existing three standpoints. In order to give prominence to the status of performance bonds, the author introduces the category of performance bonds, and analyses the merit of it. With the development of market economy, the field of performance bonds will be expanding.The second part, the system construction of performance bonds. The performance bond develops slowly in China, which was initiated by insurance company, such as PICC, in 1990s. In order to regulate the new business, insurance companies set down detailed provisions of it. Basing on related provisions and theories, this part not only clarifies the right and obligation of the insured, the insurant and the insurer, but also studies the insurance interest, the insurance object and the insurance liability of performance bonds. In the aspect of the rights and obligations, the insured should pay the insurance premium and inform the insurer according to the facts. The insurance company both accepts the insurance premium, and assumes the insurance liability. And the insurant, who should assume the obligations , such as investigation , has the right to ask for insurance proceeds. About the insurance interest and the insurance object, the insurance interest belongs to the insurant, but the insurance object is the insured's fulfilling. About the insurance liability and excluding liability, the provisions about them of insurance company tend to ignore the benefit of the insurant and the insured, so it is urgent to amend these provisions.The third part, dealing with the dissension of performance bonds. In this part, aiming at two cases existing in judicatory field, the author states the status of performance bond's dissension, the position of the contract's body in lawsuit, and the right of insurance subrogation. The dissension in performance bonds, which have self-governed position, isn't subject to other contracts. Accordingly, the insured usually is the third party in lawsuits. The insurant mostly is the plaintiff, and the insurer is the defendant. Once the parties of contracts make some special stipulation, which doesn't break the law, they should obey their promises. There are two contrary standpoints about the right of subrogation in performance bonds. Considering the credit risk which is accepted by insurance company, the author insists that the insurer doesn't have the right of subrogation when the debtor can't perform the contract impersonally, and it has the right when he is unwilling to performing the contract.The forth part, the problems and countermeasures of performance bonds in China. There are limits to performance bonds both in theory and practice, because it is fresh for us. After all, there aren't related provisions in our insurance law. Because of Lack support of corresponding system, judicatory practice is in disorder. The Supreme People's Court takes it for granted that the performance bond has the nature of guarantee. And in insurance field, it doesn't develop smoothly neither. During the course of operation, insurance company often determines its nature wrongly, distributes the risk unequally, and credit system is unhealthy. In order to solve these problems, this article gives some shallow advice. At first, we should amend the insurance law and add related provisions to it. Secondly, the insurance company should set down perfect provisions to balance the relationship among contract's bodies. Thirdly, our country should strengthen the construction of credit system to reduce the risks.