Application Of Incontestable Clause In Insurance Law Under The Circumstances Of Insurance Fraud——

In personal insurance,the insured deliberately conceals important insurance items when insuring,has obvious fraudulent and malicious,has moral hazard of adverse selection of insurance,and may even constitute a criminal offence.Elisor is the last line of defense to maintain social fairness and justice.Therefore,during the judicial practice,it is necessary to regulate it.Article 16 of China’s revised Insurance Law in 2009 marked the formal formation of the incontestable clause of China’s Insurance Law.However,the current provisions are too and there are obvious loopholes.When it is applied,there is a great controversy in the academic circles.In the judicial practice,due to the lack of uniform guidance,judges are also faced with confusion when applying the insurable provisions of the Insurance Law.From the perspective of value balance,insurance fraud should not apply to the incontestable clause of the Insurance Law.At the legislative level,drawing on the extraterritorial legislative system,there are several viable options to exclude the incontestable clause,such as extending incontestable term,adding exception applies,clearly that the application should be limited to new insurance accidents after two years of insurance,applying the revocation right in the Contract Law.In the case of legislative blanks and imperfections,it is an ideal and correct solution to solve the dilemma of the incontestable clause of the Insurance Law through legal interpretation.And during the judicial practice,for some types of fraud insurance disputes,our courts have formed some trial opinions through legal interpretation.In addition,there is still space for legal interpretation regarding the relationship between the contestable clause of the Insurance Law and the revocation right of the Contract Law.In practice trials,through legal interpretation,judges can also interpret as not the relationship between special law and common law and thus the revocation right of the Contract could be chosed to apply,with the result that the problem of the legal application of the incontestable clause could be fundamentally solved.