Insurance Fraud In Personal Insurance And The Application Of Incontestable Clause ——Case Study Of 90 Dispute Judgments Of Personal Insurance In China Judgements Online

The Incontestable Clause is an important clause in the field of insurance law.It has a history of more than 100 years in countries with developed insurance industries such as Britain and the United States,and the theoretical basis and practical significance behind it are even more complicated.Since the introduction of the Incontestable Clause in China’s Insurance Law in 2009,theoretical disputes have continued,mainly focusing on two aspects: the application of the Incontestable Clause stipulated in the Insurance Law and the right of revocation stipulated in the Contract Law under competitive situation in the case of the Insurance Fraud;and the suggestions on the improvement of the Incontestable Clause.At present,research has mainly focused on the field of normative jurisprudence,and there are three main theoretical disputes on how to apply the Incontestable Clause and the right of revocation in the case of Insurance Fraud caused by the insurers,namely the coexistence theory,the exclusion theory,and the compromise theory.Twenty-one years have passed since the introduction of the Incontestable Clause.However,what kind of doctrine did judges use in the case of Insurance Fraud? What kind of concerns in academia have been confirmed or refuted by judicial data in practice? No one has done the empirical analysis.This article mainly adopted the method of empirical research,using the data of China Judgements Online as the original material.Through the in-depth analysis of the current status of judicial adjudication and backtracking the theories of the theoretical world,it would be helpful to make a reference to the improvement of the Incontestable Clause at a practical level.The structure of this article is divided into five parts.The first part is the introduction,which raised the questions of what are the application status of the above-mentioned clauses in judicial practice and whether the insurer can exercise the right of revocation as indicated defect in the Contract Law after the expiration of the two-year contestable period under the Article 16 of the Insurance Law.Then we explained the value and significance of the problem investigation,summarized and analyzed the research results of the academia.And finally introduced the research content and possible innovations of this article.The second part summarized the legislative evolution of the Incontestable Clause and the theoretical divergences of how to apply the Incontestable Clause and the right of revocation in the case of Insurance Fraud.The main theories are the coexistence theory,the exclusion theory,and the compromise theory.The third part is about empirical analysis of related cases.By filtering 90 cases from the China Judgements Online for inductive statistical analysis,it is found that the number of related cases generally showed an upward trend,reached a peak in 2018,and declined in 2019.In the trial process,the first and second trials were evenly distributed,each accounting for about 50%.However,in the second instance,82% of the cases maintained the original sentence.It can be seen that the opinions of the judges of the first and second trials are relatively consistent,and 89% of the cases have been compensated.In practice,most judges used the exclusionary theory for application,and individual judges adopted the coexistence theory.The application of compromise theory has not been found.The fourth part is the reconsideration of academic controversies based on the results of empirical research.Based on the findings of empirical research,reviewed the recommendations of the theorists and summarized which of them are desirable or redundant,and some of the controversies cannot be tested with practice.The fifth part is about the suggestions for perfecting the Incontestable Clause given by the research basis of the first four parts: such as using the extension of the scheduled period of the insurers to exercise the right of revocation to constrain the malicious use of the Incontestable Clause by insurers to the maximum extent.Besides,set excepted circumstances for malicious fraud by the insurers and curtailed judicial interpretations related to irrefutable clauses in order to build a sound and healthy legal environment.