Whether The Insurer Terminates Or Rescinds The Contract When The Insurant Is In Fraudulent Misreprestention

The insurer has the right to terminate the insurance contract, in the case that the insurant conceals facts deliberately and refuses to perform the obligations of making true representations or fails to perform the obligations of making representations due to negligence that would be enough to affect the insurer from making the decision of whether or not to agree to accept the insurance or raise the insurance premium. Where a party makes the other party enter into a contract against its true will by means of deceit,the injured party has the right to rescind the contract. The insurer has the right to terminate or rescind the contract at the same time if the insurant makes fraudulent misrepresention. How do the rights of termination and rescission concurrence? Which right is applicable? The two questions are the all content of this article.This article consists of five parts. Part I is about raising the question of concurrence.There are two similar cases that involve the concurrence of the two rights, however the cases have the very different judgements. Part II focuses on discussing the general principle of the concurrence of termination and rescission, which is aiming at solving the questions above. In this part, the writer analyzes the purpose of statute, constituent elements and legal consequence about the rights of termination and rescission deeply.And the writer finds out that the two rights have the subjective elements and the objective elements in common, which makes the concurrence. Part III is learning from foreign countries about Germany, Japan and the United Kingdom of resolving the concurrence or the attitude to fraudulent misrepresention. Part IV introduces the theories and legislation in China that makes the article have an overall understanding about the right of termination, incontestable clause and the three kinds of solutions. Part V suggests that insurer can rescind the insurance contract just in the serious fraudulent misreprestention as the way to solve the concurrence, and completes the right of rescission from the substantive law and the procedural law, so that we can implement the principle of equal consideration and maintain the benefit between the insurant and insurer evenly.