Research On Retrospective Insurance Rules In Japanese Insurance Law And Enlightenment To China

As the saying "no risk no insurance” says,risk is not only the prerequisite for the emergence and development of insurance,but also reflects its significance.So what is risk? It is generally believed that risk refers to the uncertain state of the loss caused by an accident or force majeure.Usually,people who hate the loss will find ways to avoid risks.Therefore,insurance appears.In another word,insurance is a risk-transferring mechanism.That is to say,the insured,who formally transfers the loss caused by accident to the insurer through the insurance contract,essentially disperses the risk to the risk group through the insurer which acts as an intermediary.But in fact,not all of the risks can be avoided by insurance.The ones that can be transferred through insurance are called insurable risks.It is said that the insurable risks are the ones which are pure,accidental,universal,future and can cause significant losses.Here “future” means that the insurable risk is the one which has not yet occurred and belongs to the future.According to China’s insurance theory and practice,it is believed that the time when the insurance contract becomes effective comes on or after the date the contract is established;and the contract’s taking effect means that the insurer has to take the obligation to bear the risk.Apparently the theory above matches with future nature of insurable risks.As to the risks which have already occurred before the contract was signed,whether it is proper to judge that the contract isn’t established or valid just because the risk lacks of the nature of future? It is clear that this approach is so arbitrary,especially for the parties who didn’t know the fact that the risk has occurred,that we can admit that it is unfair to exclude it out of the scope of the insurable risk.In fact,we regard the insurance,which retrospects the insurer’s obligation to the point that is earlier that the beginning of the insurance period,as retrospective insurance.Retrospective insurance derives from the marine cargo insurance.There is also a similar provision in China’s "Maritime Law”,“Article 224 Where the insured was aware or ought to be aware that the subject matter insured had suffered a loss due to the incidence of a peril insured against when the contract was concluded,the insurer shall not be liable for indemnification but shall have the right to the premium.Where the insurer was aware or ought to be aware that the occurrence of a loss to the subject matter insured due to a peril insured against was impossible,the insured shall have the right to recover the premium paid.” However,there is not any provision regarding retrospective insurance in China’s “Insurance Law”.Obviously,under current law system,people can not fully achieve the purpose of transferring risks through insurance especially for the retrospective insurance;and meanwhile it also impedes the development of China’s insurance industry.In contrast,there are considerable provisions regarding retrospective insurance in current “Insurance Law” of Japan.Meanwhile,researches on the theory and practice of retrospective insurance have reached to a relatively mature state.All of those can be used for reference for China’s further research and legislative activity.The main purpose of this topic is that,by focusing on the research of Japan’s retrospective insurance theory,practice and legislation,to summarize the differences between China and Japan’s theory and practice upon retrospective insurance,and deepen the understanding of the retrospective insurance and its significance to insurance practice,furthermore find out the revelation to our nation’s legislation,legal interpretation and practice.