| With the development of society,people’s demands for risk protection are becoming stronger and stronger,and the insurance industry is also developing rapidly.Nowadays,in the insurance practice,there is often a phenomenon that "it is easy to insure,but difficult to settle claims",the main reason is that the insured and the insurance company argue about whether to fulfill the "exemption clause clearly States the obligation" in the insurance contract.Because the insurance contract is a typical standard contract,it is difficult for the insured to fully understand the obscure clauses,especially the exemption clauses,if the insurer does not make special explanations,which is likely to damage the insured’s reasonable expectations of risk protection.In order to protect the legitimate interests of both parties to the insurance contract,it is more necessary to study the obligation of clear explanation of the exemption clause.There are many disputes caused by the exemption clause of the insurance contract,through the study of some actual cases,it is found that the main reasons are as follows:the identification standards of the explanation obligation of the insurance contract are different,it is difficult for the insurer to retain and effectively prove the evidence of its performance obligation,and the identification standards for the performance of the explanation obligation of different insured individuals are not clear.The uncertainty of these problems in the current relevant laws and regulations causes great differences in the judgment standards of courts in different regions in judicial practice,and the parties’recognition of the judgment results is reduced,which is not conducive to the healthy development of the insurance industry.In order to solve or improve the relevant problems and disputes in practice,we must first clarify the legal basis of the explanation obligation of the exemption clause in insurance contract in theory.The so-called exemption clause of insurance contract,popularly speaking,refers to the clause that the insurance company does not assume the scope of insurance liability in the insurance clause,which is mainly classified into statutory exemption clause and agreed exemption clause,specifically excluding the accide NT risk,which is reflected in these contents of the insurance contract clause.Such as:the exclusion clause,the deductible（rate）clause,the clause that the insured should bear the corresponding legal consequences if he fails to perform his specific obligations,etc.Because the insurance contract is a format contract that the insurer draws up in advance and submits to the national insurance regulatory authority for approval,it has the characteristics of format and time front,legitimacy and legitimacy.In theory,the legal basis of the insurer’s obligation to explain clearly meets the requirements of the principle of utmost good faith,the requirement of the contract of adhesion,the requirement of the principle of fairness and the requirement of asymmetric information.In our country,although there are relevant provisions on the obligation of explanation of the exemption clause in the relevant legislation,they are not perfect and in-depth.As far as the legislative evolution is concerned,the Insurance Law and its judicial interpretation,the contract part of the Civil Code and other "court interpretations on relevant issues" have been revised year by year in the interpretation of the obligation to explain the exemption clauses of insurance contracts.However,there are still some problems,such as the narrow scope of the object of the obligation of clear explanation,the unclear way of performance,the lack of formal standards,the low initiative of signing insurance contracts online,the unclear effect of card insurance agents’ activation and the difficulty of proof for insurers to fulfill their obligations.In view of the above problems,we should first clarify the scope of the object of the obligation according to the different classification of the exemption clause,which can draw lessons from the different ways of explanation of different types of insurance abroad,or determine the scope by classification alone;secondly,we should increase the certainty in the way of fulfilling the obligation and the standard of identification through a unified and effective written and oral way;In addition,the penalty for the insurer’s failure to fulfill its obligations can be introduced,and the rule of hesitation period of the insured can be established to promote the initiative of both parties to fulfill their obligations and ensure the fairness of the transaction. |
