The Theoretical Research Of The Retrospective Insurance System

The retrospective insurance system stems from the "lost or not lost" clause, it was fully documented in the United Kingdom "Marine Insurance Act,1906" in paragraph 6:"Where the subject-matter is insured’lost or not lost’, and the loss has occurred before the contract is concluded, the risk attaches unless, at such time the assured was aware of the loss, and the insurer was not ". The retrospective insurance system only applies to marine insurance at first, with the expansion of the field of the insurance, its scope of application is also expanding. Britain, Germany and Japan, whose insurance industry is developed, set up the perfect insurance system, and provision the retrospective insurance system.Our country doesn’t make clear law about the retrospective insurance system and the insurance law theory rare to its introduction. On the contrary, there are more and more disputes caused by retrospective insurance in the practice. It was because there are too much insurance companies in our insurance market, in order to attract customers, some of them apply the back period then expand insurance period. Although the Supreme Court in China has issued the judicial interpretation to solve back case, however, at present, its scope is limited to Marine insurance, and can’t cope with the various back cases.Given the back case has no legal basis to resolve in our country, this paper proposes the retrospective insurance system should be built in our country in learning its development course and other country’s retrospective insurance law and theory. Firstly, this paper discuss the summarization of the retrospective insurance, and compare it with two similar act-back-dated policy and open cover, then define it: Refers to the special provisions by law or in accordance with the contract both sides agreed, the insurer of insurance contract is concluded in the insurance period before but damage occurred assume insurance responsibility.Secondly, this paper response the question whether the retrospective insurance should be built in the insurance theory. It believes the retrospective insurance has legal basis. The first, it conforms to the principle of party autonomy because its built and content is decided by the insurer and policy-holder. The second, it conforms to the principle of fair because it is fair to all the people. The third, it has the nature of speculation, because the insurer and policy-holder both not sure whether the insured accident will happen. The fourth, it has the formation of the foundation--the applicant and the insured has an insurable interest in the subject matter of the insurance.Since the legal basis of the retrospective insurance system has been proved, then this paper discusses the special effect of the retrospective insurance. For the time aspect, it mainly requires that the insurer is concluded in the period before but damage occurred assume insurance responsibility; for the parties, it is mainly requires goodwill of both the applicant and the insured.Writing at the last the paper proposes the retrospective insurance system should be built in our country and suggests that our country should not only carry on the legislation and shall ensure that its implementation in practice. First, in terms of legislation, the paper makes clear its constitutive requirements, concept, scope of application, legislative cases and so on. It also suggests it should be widely applied to the whole insurance field, and should be put forward as a general rule as set forth in the general insurance law. Secondly in terms of practice, the paper suggests that we should increase economic freedom in our market, trains the faithful insurer and policy-holder and trains professional insurance intermediaries, create a good legal regulatory environment. Especially about the problem of the insurance period of blank the paper suggests the clear time limitation should be make for the policy-holder and insurer to abide in order to prevent the production of the dispute of insurance and provide legal basis for dispute resolution.