Study On The Insurance Libaility During Insurance Blank Period

In the case of "Sun Xiao v.Citic-Prudential Life Insurance LTD." that happened in Guangzhou,2001,the insurer collected the first period of premium from the applicant,but did not agree to accept insurance application because of undertaking underwriting,during which the insured was killed.Should Citic-Prudential Life Insurance LTD.assume responsibility for insurance? As one of the general public,the insured person believes that he has fulfilled the contractual obligations he has paid for the premium,corresponding ought to get insurance guaranteed.The insurer believes that the advance payment of premiums is an insurance industry practice,and that underwriting is an indispensable part of the insurance business process.It is impossible to directly underwrite without the underwriting.As long as the insurance contract has not been insured,there is no compensation.At the same time,it is an industry’s usual practice that some kinds of insurance such as Compulsory Mobile Traffic Incidence Liability Insurance stipulates the time when the insurance contract becomes effective comes on or after the date the contract is established.It also makes a insurance blank period of hours or days from the advance premium payment to the insurance contract comes into effect.In the event of an insurance accident during this period,disputes between the parties have been commonplace.Not only did the parties plead guilty to the courts,but they also accused each other.On the one hand,the underwriter receives insurance cost in advance is based on its own interest,Even if it is not reasonable,it has formed an industry practice and it is difficult to correct it atone time.At the same time,in order to prevent the occurrence of adverse selection,the insurer should not be deprived of the right of underwriting.On the other hand,out of the protection of the insured’s weak position,based on the basic principles of insurance law such as balance of interests and maximum integrity,the insured has already paid the premium without any insurance protection,which is obviously unfair.Moreover,because there is no uniform legal basis,the decisions made by local courts are varied and highly localized.For example,the quite different judgments made in the first and the second instances of the court in the "Guangzhou Citic-Prudential." made the public stunned.In this case,the supreme people’s court issued judicial interpretation ii of the insurance law in 2014,article 4 of which stipulates the blank period of insurance in order to solve the problem of liability bearing in the blank period.The promulgation of the judicial interpretation established the settlement mechanism for the blank period insurance accident,unified the referee standards for the national court to deal with the insurance blank period,and greatly safeguarded the judicial authority,but it still has problems such as the lack of theoretical foundation,incomprehensive guarantee and unclear recognition standard.The author discusses the basic theoretical issues such as the cause of the insurance blank period,the validity of the blank period insurance contract,and the nature of the blank period insurance liability.At the same time,the author analyzes the legislative and judicial experience of solving the insurance blank accident dispute at home and abroad.Insufficient legislation in the current insurance blank period,explore the system construction in line with China’s national conditions,in order to benefit the further improvement of relevant legislation in the insurance blank period.This paper consists of four parts:The first part reviews and analyzes the typical case,"Guangzhou Citic-Prudential",of compensation dispute in the insurance blank period and other cases of "zero-time guarantee" that causes a large number of lawsuits,summarizes the contradiction focus of the opposing parties,and leads to relevant problems of insurance blank period.The second part studies the basic theory of blank period insurance liability.First,to review the blank period insurance liability,including the establishment process of the insurance contract and the general theory of the establishment of the insurancecontract,the trajectory of the insurance blank period,the relationship between the premium payment and the effective conclusion of the insurance contract.Secondly,to discuss the theoretical basis of general believing that the insurer should bear the academic basis of the blank period insurance liability,and define the nature of the responsibility.Finally,the paper analyzes and compares the origin,development and status quo of the liability in insurance blank period abroad,in order to inspire the construction of China’s blank period insurance system.The third part discusses the relevant systems for the regulation of the insurance blank period in China in detail.Since the " Guangzhou Citic-Prudential." caused a sensation in the country,with the frequent occurrence of similar cases,the local courts began the corresponding judicial exploration.However,due to the lack of uniform legislative guidelines,local standards are different.The Supreme People’s Court finally issued the "Judicial Interpretation II of Insurance Law",which unified the standards of the referee and safeguarded the judicial authority.However,there are still some problems in the judicial interpretation,such as lack of theoretical foundation,incomplete protection,and unclear identification criteria.The fourth part is to construct a more perfect system for the problems existing in China’s current insurance blank period dispute resolution mechanism: firstly,it should put forward a relatively clear and reasonable underwriting period for the insurer’s underwriting behavior,and establish presumption criteria of insurance contract.Under the premise that the insurer collects the premium,the insurer is required to provide temporary insurance coverage for the insured by introducing a compulsory temporary insurance system.During this period,an insurer will be liable for temporary insurance.If the insurer does not respond within the insured period,that is,in the case of deferred insured,the insurance contract is presumed to be established,and the insurer is responsible for the formal insurance liability.At the same time,the contents of the temporary insurance contract,the initial and medium term,and the exemption are further discussed.