Study On The Judicial Judgment Standards For The Performance Of Insurance Contracting Obligations

Judging from the judicial cases which are judged and settled within one year after the implementation of Interpretation II to Insurance Law of the People's Republic of China,the local courts still execute different standards in judging whether the obligors perform the duty of disclosure in insurance contracting or not,and the majority of cases are in the second instance,which causes litigation exhaustion and jeopardizes the public credibility of the judiciary.Judging from the domestic theoretic studies on insurance law,the studies on the duty of disclosure in insurance contracting were mainly conducted before the promulgation of the Insurance Law in 2009,the system and social environment many researches were based on were greatly changed,many new issues and situations occur,and the studies cannot adapt to the realistic demand.But regarding the foreign countries,they have greatly reformed their systems about the duty of disclosure in insurance contracting in the legislation in recent years,mainly including Britain's Consumer Insurance(Disclosure and Statement)Law in 2012 and Insurance Law in 2015,Germany's Insurance Contract Law in 2008,Japan's Insurance Law in 2008,and Restatement of European Insurance Contract Law in 2014.Making studies based on the current environment to solve the issue of different standards in judging the performance of the duty of disclosure in insurance contracting is of certain theoretic value and realistic significance.The paper mainly adopts the empirical study,comparative jurisprudence,and jurisprudence study methods to study the judicial standards to judge whether the duty of disclosure in insurance contracting is performed.Regarding various expression that the judicial standards to judge the duty of disclosure in insurance contracting are different,the paper draws lessons from the foreign legislative experience of the duty ofdisclosure in insurance contracting,and reexamines and collates the current standard systems of the duty of disclosure in insurance contracting from the two aspects of the legal elements for performing the duty of disclosure in insurance contracting and those ambiguous concepts.The main contents are divided into four chapters.Chapter I is the outline of the duty of disclosure in insurance contracting.The Chapter is the basis for studying the judicial standards to judge the duty of disclosure in insurance contracting.It is mainly about the grounds,legal nature,historical evolution,development trends and also the latest foreign legislation of the generation and development of the duty of disclosure in insurance contracting.The Chapter is characterized by the comments of the five universal generation theories and three legal common theories of the duty of disclosure in insurance contracting.It points out the shortcomings in China's duty of disclosure in insurance contracting and briefly introduces the latest foreign legislation.Chapter II states that the judicial judgment standards are lacking for the duty of disclosure in insurance contracting.The Chapter aims to raise issues in a targeted manner.The studies on twenty tree typical insurance judicial cases directly show the judicial chaos in judging the performance of the duty of disclosure in insurance contracting;it makes an in-depth analysis on three cases among them,and the root of judicial chaos in judging the performance of the duty of disclosure is the defect that China's current standard system values the performance results over the performance judgment.The different judgment standards for courts are mainly from the disputes in the following two aspects: the first one is the basic performance elements of the duty of disclosure in insurance contracting,and the second one is the important concepts relating to the duty of disclosure in insurance contracting.Chapter III is the judicial judgment standards for the basic elements of the duty of disclosure in insurance contracting.It conducts the comparative and empirical studies on the disputes about the performance subjects,ranges,methods,time,and also the subjective and objective elements in theory and judicial practices.Chapter IV is about the judicial judgment standards for key controversial issues in the performance practice of the duty of disclosure in insurance contracting.It discusses about the identification andeffect judgment standards of “material facts”,“agency” and “general provisions”,and also about the correlation among the insurer's obligation of explanation,underwriting and the performance judgment of the duty of d isclosure in insurance contracting,and conducts the comparative and empirical studies on the disputes about them in theory and judicial practices.And the last part is conclusion.The author points out that it is necessary to balance the contracting parties' interests,and revise and perfect the standard systems of the duty of disclosure in insurance contracting to fundamentally solve the current status of different judicial judgment standards,and also raises law amendment suggestions.