The Comprehension And Application Of The Exemption Clauses In Insurance Contracts

Human are faced with various risks from nature and society every second in life. In order to spread the risk of damage to the individual, and actualize the good management of social risk and maintenance of modern financial and social security system, the insurance industry has become an important means and component. In China, because of the Reform and Opening up Policies, the insurance industry has developed rapidly, especially since the mid-1990s. From 2007 to 2012, insurance premiums of Shanghai grew 48.26 billion Yuan(RMB) to 82.06 billion Yuan, and the growth rate was close to 100%. But with the enhancement of people’s consciousness of the insurance, the insurance contract dispute also gradually increased, the dishonesty of insurance industry is the most important cause. It is widely Known that "Insurance is much easier than claim", which directly makes people lose trust in the insurance. The reason of such social phenomenon is largely due to the insurance disputes, which caused by insurers using the exemption clause of insurances to reject the insured’s claims after insured accidents have occurred. So the insured deem insurance exemption clauses as imparity clauses, which allow the insurers to evade their own liability and to damage the interests of the insured.However, the exemption clause of insurance contract has its particularity. It’s reasonable that exemption clauses can not only balance the contract litigant consideration paid, compliance with contractual requirements of the principle of fairness, but also maximize the prevention of the insured, insured moral hazard potential. How to use legal system to balance the two sides, which means to ensure both the policyholder’s and the insured’s legitimate rights, and the balance and justice of the insurance contract at the same time, has become the main research field of insurance law direction in every country. Research by the definition of the exemption clause in insurance contracts and the legitimacy of its existence, this paper analyzes and sorts out the theoretical basis and legal principle regulations of exemption clauses in insurance contracts, then profound considers the lack of the seventeenth article of existing "insurance law" and gives suggestions for improvement, in order to find the suitable regulation of exemption clause in insurance contracts for our country.The first chapter of this paper discourses upon the legal basis and the legitimacy of the exemption clause of insurance contracts, trying to clear the exemption clause of insurance contracts, and its difference from insurance coverage. And through to the insurance industry, the insurance contract operation mode analysis to the nature of the shot, the exemption clause in the insurance contract is an important guarantee to prevent the moral risk balance consideration.In the second chapter, the author discusses the necessities of the exemption clause of insurance contracts and the main principles of law from the opposite. On one hand, insurance contracts are mainly made up of standard terms, and the insurer is absolutely in dominant position, the policyholder and the insured facing the exemption clause have no choice but to "either accept, or go away". On the other hand, because of the information asymmetry between two parties to the insurance contract, it is difficult for the insured to understand the specialized vocabulary of insurance as easily as the assurer. Therefore, we must regulate the exemption clause of insurance contracts through properly controlling of content and process.The third chapter compares with the present regulations on exemption clause of insurance contracts in different major countries of different genealogy of law. The author hopes to get inspiration from it, and find a suitable way for the development of China’s insurance industry.The fourth chapter analyzes on the insurer’s explanation duty system according to the seventeenth article of new "insurance law". The author considers that it is the short of detailed provisions of the performance way, evaluation standards and the legal consequences for "remind sufficient", so that insurance disputes can not be unified judgment. Thus it gives some suggestions for improving the exemption clauses in insurance contracts in our country.