Study On The Solution Of Dispute Caused By An Accident Before Commitment Of The Insurance Contract

In the process of entering into an insurance contract,the insurer usually charge premium in advance when the applicant submit the insurance slip.After the applicant submitted the insurance slip and the insurer underwritten the insurance slip,the insurer will make a decision whether their will accept the insure or not based on these facts.The accidents happened before the insurer make this decision is called the accidents before commitment.It is widely believed that the insurer should bear the insurance liability of the accidents before commitment.In 2013,the Supreme People's court issued the document called Interpretations of Several Issues Concerning the Application of The People's Republic of China Insurance Law(Two)(hereinafter referred to as "the interpretation Two of insurance law")and article four also accepted the idea that the insurer should bear the insurance liability caused by the accident before commitment.One precondition of the insurance liability is applicant must meet the CONDITIONS.In judicial practice,the court will usually think that the insurance contract has been established if the CONDITIONS are met,and the insurer should bear the insurance liability.When the CONDITIONS are not met,the insurer will not bear the insurance liability.But if the key components of the responsibility of contractual negligence are met,the insurer should bear this liability.Judging from article four of the interpretation Two of insurance law,there are problems exists in the existing settlement mechanism:when the CONDITIONS are not met,the interests of the applicant or beneficiary are not well protected.What's more,the insurer just return the premium charged in advance,and the fruits of it owned to the insurer,this fact leads to the Unjust Enrichment of the insurer.The interpretation Two of insurance law did not promise to make the system to solve the accident before commitment,resulting in the lack of standardization in practice.The subject of the judicial explanation is the Supreme People's Court,therefore this rule lack the support of the Host Law.From the point of the judicial practice,presumption established of the insurance contract has been established in our country.This approach is unreasonable in theory and practice.Aiming at the solve the problems mentioned above,this article put forward an solution of the dispute caused by accidents before commitment.This article including four parts:In the first part,this article introduced the origin of the accident before commitment and the existing settlement mechanism of accident before commitment.And put forward the problems exist in this mechanism.In the second part,this article introspected the reason of compensation based on the judicial decision and the theoretical achievements.After this,this article introduced three solutions of the accident before commitment:Temporary Insurance system,Retrospective Insurance system and Presumption of Established of the insurance contract,and analyzed the difference between these three systems.In the third part,this article deeply analyzed problems existing in the current dispute resolution mechanism of the dispute caused by the accidents before commitment,pointed out that the difference between legislation and judicial.At the same time,basing on the distinguish of whether the insurer delay in underwriting,this article pointed out that this mechanism is unreasonable in both situations.In the fourth part,this article puts forward the corresponding solutions:at first,the Insurance Law should establish the insurer's reply obligation,and explicitly stipulated in the Insurance Law.On the basis of this obligation,there are different solution of whether the insurer delay in underwriting.If the insurer delayed in underwriting,the insurance contract has been established,and the insurer should bear the insurance liability.If the insurer didn't delay in underwriting,the insurer should also bear the insurance liability based on the Retrospective Insurance system.But the insurer can demurrer under the situation of not meeting the CONDITIONS.In this condition,the insurer should return the fruits brought by the premium charged in advance.