| A warranty means a promissory warranty, according to Britain’s Marine Insurance Act 1906, by which the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the existence of a particular state of facts. As a legal institution, warranty has went through a long history of over two hundred years since its birth and its content is enriched constantly and hence has formed a very complete system. The origin purpose of warranty is to protect the insurer’s interests. It is regarded as an important part of the principle of utmost good faith and widely used in common insurance contracts. Warranty has to be strictly complied with, any breach of warranty will void the policy regardless of its graveness and its actual effect. Due to the excessive harshness caused by this institution, warranty has received extensive criticism, especially the strict performance principle is so severe that it causes the imbalance of distribution of interests between the insured and the insurer.However in China, warranty did not receive enough attention:seen but not perfect in maritime law, completely absent from general insurance law, when applied to actual cases, misunderstood by people and somehow abused by the insurer. As a result, many insurance contract disputes and insurance fraud are arising from the insurance warranty contradiction. To solve these problems, there have been no ready answers in China’s insurance law, therefore we need to learn from the established rules in other countries to perfect our warranty clause. In view of this, this paper attempts to analyze and research the reasons for the lack of warranty, using the methods of literature research, case study and comparative research, and put forward our own establishment and perfection of the understanding and recommendations.This article includes five parts: The first part introduces the general theory of insurance warranty, including the definition, classification, origin and development, comparison with other correlation system, and the nature and characteristics of warranty.The second part ensures the status and defects of warranty in China from the perspective of theory and practice, to illustrate the serious consequences of the lack of warranty, two insurance cases are brought in and carefully studied, respectively with marine insurance and non-marine insurance.The third part emphasizes on analyzing the reasons for the lack of warranty in China, which mainly caused by their harsh nature and the incomplete legal system in China.The fourth part compares domestic and foreign insurance warranty, including the United States, Britain, Canada, Australia and other developed countries and regions, and based on the above discusses what inspirations China can absorb from the comparison.The last part proposes the establishment and improvement of warranty in insurance contracts from the aspects of legislation, regulation, practice and education. |
