The Understanding And Application Of Article 16(3) Of The Insurance Law

Modern society is a typical risk society.As a social risk dispersion mechanism,Insurance plays a decisive role in the prosperity and stability of modern society.As a balance between the insurer and the insured person’s interest in the system construction,the irresistible clause demonstrates the value of the law.However,China ’s insurance law provisions of the provisions of the irrefutable is too simple,causing a lot of disputes,but also lead to judicial referee is not uniform.This paper analyzes two typical cases of insurance disputes from the Supreme People’s Court,combined with the last two insurance law judicial interpretation of the drafting process of the dispute,summarizes the argumentation logic and referee inclination of the Supreme People’s Court.Focus on the case controversy,this article analyzes the irresistible clause in the interpretation of the application of practical disputes,explained the institutional basis behind the institutional differences,economic rationality and value choice,to sort out the normative system to which the rules of the indisputable clause apply and guide the insurance case trial practice,to achieve the expected stability of the law and social fairness and justice,with the case study method、functionalism comparative law and the study of the doctrine of law doctrine.In the specific content arrangement,this article is divided into three parts:The first part is the case brief of two typical cases to lead the case to the controversial focus.This part summed up the current practice on the irresistible clause three controversial focuses,through the basic facts of the two cases,the comparison between the court referee and the logic of the argument:1.Can the circumstances in which the accident occurred within two years of the establishment of an insurance contract apply to irresistible clauses?2.Can "fraudulent insurance" exclude the application of non-defensible terms?3.The applicable boundaries of the non-defensible clause.What is the applicable relationship between the indisputable clause and the establishment of the contract,the scope of coverage,and Abstaining and Prohibiting Rules?The second part analyzes and demonstrates the three controversial points.In this part,two typical cases of focus analysis and insurance theory can be drawn: The prerequisite for the application of the irrefutable clause is that "the insurance contract has been established for two years and the insurance accident has not occurred";fraudulent insurances do not preclude the application of non-defensible provisions,whether fraud is intentional or gross negligence.In the use of non-defensible provisions focused on the protection of insurance relative,Insurance law set up other border norms to safeguard the legitimate interests of insurers.It is necessary to adjust the order of the basic search for the right to claim,and to explain the application of the provisions of Article 16,paragraph 3,of the Insurance Law.The third part is the evaluation and summary of the court decisions of the selected cases.Comparative analysis found that,The Supreme People’s Court has shifted from protecting financial consumers to curbing insurance fraud.However,the turn of the substantive justice referee coexists with the bad legal argument.At the end of the article,the rules of irrefutable clauses and their surrounding norms are rationalized,which can help to realize the reunification of judicial decisions and justice,based on the doctrine of dogmatism and the analysis of the basis of the right of claim.