Insurance Law Relief Of Loss Caused By Gross Negligence Of Lawyers’ Professional Behavior

Since 1979 when lawyer institution resumed,our law profession has made great progress.The number of employees has soared from 212 to 620,000 by the end of 2022,it has grown more than 3,000 times in more than 40 years.The importance of lawyers’ income in the national economy has increased significantly.The richness of social activities,the development of science and technology,and the innovation of business model make the legal relations show diversity and complexity.The limited accuracy of the legislative language,the hysteresis of the means of legal adjustment,the limitation of legislative technology and other factors lead to the inevitable imperfections,loopholes or contradictions of the legal system.In addition,the limitation of lawyers’ cognitive ability at a specific time.Mistakes in the lawyers’ professional behavior are inevitable.The concept of gross negligence is not clearly defined in our laws,theoretical research is still needed.The paragraph 2 of Article 27 of the Insurance Law only stipulates that insurance accidents caused by intentional acts are exempted from compensation,but does not stipulate the legal consequences caused by gross negligence.The vagueness of legal provisions leads to conflicting theoretical views,different insurance practices,and various judges.There is a Roman law saying "Gross negligence equal to frand",and there are many cases in which gross negligence and intention are equally valued in civil law.However,gross negligence and intention are different faults.The cognitive factor of gross negligence is at most the abstract possibility of foreseeing the infringement of others’ rights and interests,and the will factor is not wanting the damaging results,which are different in "knowing" cognitive factor and the will factor of pursuing or allowing the result to happen from the intentional fault.The concept of gross negligence has not been defined in Chinese law,and theoretical research has not yet provided the quantitative standard of its degree and scope of duty of care.On the background of the tendency of objectification of negligence liability and the objective standard of expert liability,the subjective imputability of gross negligence has lost its basis.In the insurance law,the characteristics of insurance accidents and the functions of insurance should be taken into consideration to distinguish the consequences of intentional fault and gross negligence behaviors.The insurance accidents are accidental,insurance applicant groups pooling risks,insurers compensate for losses,provide services to deal with risks,etc.Intentional behavior violates the contingency characteristics of insurance accidents,and the accident caused by gross negligence must participate in other uncontrollable factors.The contingency is not changed by gross negligence,the moral legitimacy of exemption from insurance liability in order to punish gross negligence behavior should give way to the instrumental value of the efficiency of the victim’s compensation.Many factors,such as the dependence of lawyers’ work content and effect on social rules,the uncertainty of the scope of lawyers’ duty of care,and the inevitable result-orientation of judicial adjudication,lead to the large discretion space for the determination of lawyers’ professional gross negligence.It is difficult to predict and avoid.By distinguishing intention from gross negligence in jurisprudence,combining their different influences on the contingency of insurance accidents,considering the protection of victims’ and consumers’ rights and interests,public policy and the connotation of the principle of indemnity developing from "prohibit unjust enrichment" to "fully compensate",facing up to the particularity of the determination of gross negligence in lawyers’ professional behavior,and considering absorbing foreign theories and legislative trends,it is not difficult to draw the conclusion that the risk of gross negligence in lawyers’ professional behavior should be insured."Intention" in paragraph 2 of Article 27 of the Insurance Law does not include gross negligence in the context.Even if "intention" is extended to the limit within the context of the written law,gross negligence cannot be classified in the boundary.Since there is no deviation from the inherent language usage to limit the concept,nor can gross negligence be extended into the concept of "intention" within the context,this article does not apply to gross negligence.The inclusion of gross negligence in insurance coverage conforms to the meaning,the standard system of Insurance Law to distinguish legal consequences of faults according to the type of behaviors and the legislative purpose of excluding moral hazard of intentional behavior.If the disclaimer clause of gross negligence in Lawyer Professional Liability Insurance is standard terms,it shall be adjusted by the rules of controlling over the conclusion,controlling of the content and adverse interpretation.However,even if it is indicated and made specific explanation that the clause is exempt from the evaluation of non-effectiveness,it will be invalid because of the exemption of the insurer’s obligations and the exclusion of the insured’s rights according to law.If it is an individual negotiation clause,the validity evaluation shall be made according to the normative purpose of paragraph 2 of Article 27 of the Insurance Law,in combination with the principle of balance of consideration.If it does not affect the premium,it shall be deemed invalid,so that the legal status of the insured is not significantly lower than that of the standard terms.Otherwise it is valid.Considering the development reality of liability insurance,and considering the dual value objectives of transferring lawyer’s practice risks and protecting victim’s rights and interests,we should,on the basis of distinguishing between the core presentation terms and the incidental terms,include indirect loss,loss caused by professional behavior of practicing lawyer and tort liability for the third party who has no relationship of interests legally with the client into the scope of underwriting risks.Adopt the model of total compensation combined with deductible;In order to deal with the practical problems that many lawyers’ professional liability disputes do not distinguish the faults,and the claim procedure may be blocked by the validity identification of the disclaimer clause of gross negligence or identifying gross negligence itself,it is necessary to deviate from the separation principle,establish the third party’s right of direct claim,introduce the insurer’s participation right,and clarify its validity and the limits of right exercise,realize the balance of interests among the insurer,the insured and the third party.The way of insuring Lawyer’s Professional Liability Insurance organized by provincial Lawyers Association is significant in the early stage when law firms lacked operational risk awareness and insurers did not actively design and sell lawyer practice liability insurance products,but marketization is the direction.To change the current situation of highly homogeneity of Lawyer’s Professional Liability Insurance products and form a diversified market of Lawyer’s Professional Liability Insurance products with reasonable rates and fair terms,it is necessary to face squarely the profit needs of insurance companies,this paper tries to find a way to break through the realistic barriers that insurers worry about moral hazard and adverse selection of the insured and do not actively cover the risk of loss caused by the gross negligence of lawyers’ professional behavior.The insurer may take the initiative to adopt prudent underwriting,experience rates and supervise the insured’s risk management measures,the standard management of lawyer profession and lawyers’ attention to profession reputation can also prevent and avoid the risk caused by gross negligence of lawyers’ professional behavior.Lawyers’ professional behavior with gross negligence is at risk of administrative punishment or even criminal liability that can’t be dispersed by insurance,business affected by diminished reputation,and higher premium because of the claim probably resolve the hidden concern of management without responsibility.