The Research On The Pattern Of Obligation Of Disclosure In Marine Insurance

The obligation of disclosure is one of the most important contents in marine insurance law. This paper discusses the obligation of disclosure, including whether to perform or not, pattern of performance and the meaning of fulfillment. To some extent, the selection of pattern of disclosure directly determines the scope of the obligation to disclose, even the material items which shall be disclosed. Therefore, the selection of pattern of disclosure is the core problem in terms of the duty of disclosure. In theory, there are two kinds of pattern, initiative disclosure and disclosure in response to the inquiry from the insurer.Initiative disclosure includes the following three aspects:first, the scope and content of disclosure would be determined by the insured; second, in case of anything shall be disclosed being missing or insufficient, the insurer may put forward their inquiry; third, the insurer’s inquiry does not waive or release any of the insured’s obligations of disclosure. Disclosure in response to inquiry by the insurer includes the following three aspects:first, the disclosure shall response to the question of insurer, and the contents shall be subject to the insurer; second, the insured shall disclose in line with the insurer’s inquiry; third, there should be reasonable scope of disclosure.The Insurance Law of P. R. China provides that the obligation of disclosure should be performed by way of answering the inquiry raised by the insurer, while the Maritime Code of P. R. China provides that the obligation of disclosure should be performed by initiative disclosure. At present, there are some problems in the judicial practice of marine insurance on the selection of the pattern of obligation of disclosure. The study on the pattern of disclosure also indicates the trend in non-marine insurance worldwide that initiative disclosure is steering to disclosure in response to the inquiry from the insurer. This paper discusses the value of pattern of disclosure, the natural conjunction between initiative disclosure and common law system, and the problems in judicial practice. On these bases, this paper explores the way to perfect the pattern of disclosure in marine insurance of China.Beside the Abstract and the Foreword, this paper is constructed by four chapters.The first chapter begins with the perspective of the relationship between obligation of disclosure and the principle of utmost good faith. This chapter analyzes the background of the obligation of disclosure in marine insurance, discusses the intension of the obligation of disclosure, and distinguishes the two different patterns of initiative pattern and disclosure asked for by the insurer. The theoretical values of the pattern of disclosure are raised based on the analysis above.The second chapter analyses the values of marine insurance legislation, held by initiative disclosure and disclosure asked for by the insurer. It clears the key value of the pattern of the performances is to achieve a sensible balance between the insurer and the assured during pattern selection of insurance legislation.The third chapter mainly summarizes the initiative disclosure in marine insurance of common law, and discusses the definition and test rules of the material circumstance and the range of disclosure under the initiative disclosure.The last chapter summarizes the different opinions and cases about the selection of the performance of disclosure in marine insurance practice. Based on both analysis of the foundation of the current law and initiative disclosure in Chapter three, this paper provides reasonable suggestions on the selection of the pattern of disclosure to promote the development of the practice in marine insurance of China.