Feasibility Study Of Exclusion Of Application Of Irresistible Clauses In The Case Of Insured Fraud

At the early stage of the development of the insurance industry,due to the comparative advantage of the insurer,the insurance contract was cancelled at will,resulting in a serious loss of the interests of the insured party and an imbalance of trust between the insurer and the policyholder.In order to properly address the insurer’s credibility crisis and to ensure that the insurer and the policyholder are able to hold each other accountable,the incontestable clause was created.When the policyholder wilfully or through gross negligence fails to fulfill the obligation of truthful information,the insurer is given the right to terminate the contract by the incontestable clause within a period of two years,beyond which the insurer loses the right to terminate the insurance contract and is required to pay unconditional compensation to the policyholder for claims.It is true that the purpose of the incontestable clause is to balance the interests of the insurer and the insured,but with the use of incontestable clauses in recent years and the continuous development of the commercial insurance market,more and more insureds use incontestable clauses in bad faith to commit insurance fraud or to delay notice of insurance fraud until the two-year defensible period has elapsed,so that the insurer loses the right to cancel the insurance contract and can only pay the insured benefits.Fundamentally,the incontestable clause is,to a certain extent,contrary to its own value,the immunity from insurance fraud,resulting in huge economic losses forinsurers and not conducive to the healthy and stable development of the insurance industry.Therefore,this paper attempts to examine the feasibility of excluding the application of incontestable in the case of insured fraud.The article is divided into four parts,as follows:The first part is mainly to raise the issue,through the form of cases to raise the current insurance judicial practice in China insurance fraud in the application of the incontestable clause disputes and difficulties.The second part of the paper mainly defines the main body of the research and related concepts,defining the concept of insured fraud and insured fraud,and then defining the connotation of incontestable clauses.The third part is the core of the article and focuses on the analysis of the feasibility of applying the exclusion of incontestable clauses under insured fraud.First,based on the study of whether insurance fraud should apply the doctrine of incontestable clause combing,for insurance fraud exclusion of incontestable clause to provide the viewpoint support;second,from the perspective of the analysis of the legal basis,the balance of interests analysis and the perspective of extraterritorial comparative analysis,all-round argue that insurance fraud exclusion of incontestable clause is justified.Finally,expressly insuring fraud should exclude the application of the incontestable clause.The fourth part of the insurance fraud how to exclude the application of incontestable provisions,the author proposes three aspects of perfect thinking.