On The Understanding And Application Of Incontestable Clause In Insurance Law

Incontestable clause has been a legal clause in insurance contract for more than 100 years.Its mandatory universal binding force plays an important role in promoting the development of insurance industry in various countries.This clause takes the protection of trust interests,the obligation of truthful disclosure and the theory of information asymmetry as its own legal basis,and constructs an incontestable theoretical basis.The legislation of this clause meets the requirements of restricting the right to terminate the contract,balancing the rights and obligations of the parties,and following the principle of fairness and justice,which reflects the humanitarian care for the insurance counterpart.China introduced the incontestable clause into the insurance law in 2009,but there are continuous disputes in the academic circles on the application,and there are not a few negative views.According to the development status of China’s insurance industry,the insurer has a certain capital operation ability,the public’s demand for insurance is increasing day by day,while the insurer’s underwriting ability and reputation level are low,and the protection mechanism for the rights and interests of the insurance counterpart has not been formed.Therefore,it is necessary to incorporate the incontestable clause into the insurance law.After more than ten years of practice,the role of non defensible clause in restricting the insurer’s right to terminate the contract and protecting the interests of the insured or the beneficiary is very obvious.However,it can not be denied that there are still some defects in the provisions of this clause.There are insufficient provisions on the scope of application,defense period,application exceptions,compound contract and application relationship,which is not conducive to the stable development of the insurance industry.In view of the defects and deficiencies,based on the analysis of the advanced experience of extraterritorial legislation and combined with specific practice,this paper puts forward some legislative suggestions to improve the incontestable clause,so as to strive for the substantive protection of the legitimate interests of the insurance counterpart.