Progress And Deficiencies Of Insurance Law Of2009in Protecting The Right And Interest Of The Insured

On February28,2009, Standing Committee of the National People’s Congress revised and approved the Insurance Law of the People’s Republic of China, which took effect on October1,2009. This time Insurance Law was subject to relatively comprehensive amendment for the purpose of emphasizing the protection of the disadvantaged groups, including the insurer and the insured under the conditions of socialist market economy. Despite the progress we have made, we are still lagged far behind from developed countries as the result of the insufficient intensity. This paper investigates the deficiencies of Insurance Law through the discussion about the legal texts and cases and puts forward the relevant thoughts and suggestions on the existing issues in Insurance Law on the basis of drawing upon the experience and related theories of developed countries and regions by means of literature retrieval, comparative analysis and summaries. The point of this paper will be demonstrated from four perspectives. Due to the little talent and learning of the author, some of the views proposed in this paper may be too immature and, thus necessitating the advice and comments from the scholars.The first investigates the progress made in Insurance Law of2009. First, it is reflected in the restraints of the liability scope of the insured."The insured shall take responsible under the conditions of general negligence" has been changed to "The insured shall take responsible under the conditions of gross negligence". Meanwhile, the free transferring system of the object of insurance has been established, allowing the insured to transfer the object of insurance without receiving the consent of the insurer. Second, it increases the obligations of the insurers, such as the explanation obligation of the standard terms, specifies the period and time limit of settlement of claims and establishes the stopple as well as waiver system. All these efforts demonstrate the progress in Insurance Law and embody the humanistic spirit in legislation.But there are some deficiencies in Insurance Law of2009. First is the issue of the blanking period of the insurance liability before the insurance contract takes effect. Second are the efficacy conflicts between subrogation right of the insurer and the damage claim rights of the insured. Third includes the undefined independent juridical status of the loss assessor. Fourth is the undefined insurability of the punitive compensation liability.On the basis of the deficiencies enumerated in the second part, it introduces the relevant foreign legislative experience and theories, including insurance traceability system, covering note system, full compensation system, priority compensation and principle of proportionality, loss adjusting system of foreign countries as well as American Insurance Law’s attitudes towards and practices of the insurability of the punitive compensation liability. The discussion about the foreign loss adjusting system could enlighten us, enabling us to draw upon their advantages and innovate.So, suggestions for improving the legislation of Insurance Law in China. Through discussing about the aforesaid questions and drawing upon the advanced systems from foreign countries, it also proposes suggestions for the legislation of Insurance Law in China. First, through the comparison of insurance traceability system and covering note system, it investigates the compatibility of transplantation of law and the intensity deficiency of covering note system in protecting the insured. By taking into account the actual situation of the insurance industry development in China, it also puts forward the idea of establishing the retrospective insurance system in property insurance as well as legal retroactive insurance system in personal insurance. Second, by putting forward the mixed complete compensation rules and principle of proportionality as well as the principle of preferential protection of the insured’s damage compensation claims rights, it also takes into account the interest of the insurer though proportional repayment approach. Third, it determines the legal status of the loss assessors and gives them the legal effect of loss adjusting reports. Fourth, in light of the ascendant of punitive damages in civil liability development, it suggests to recognize the insurability of partial punitive damages.