Shenzhen City Intermediate People's courtGuiding opinions on Several Issues concerning the trial of cases of disputes over contract of motor vehicle insurance

(Draft)

To correctly judge motor vehicle insurance contract dispute cases, unify the judicial scales, according to "the people's Republic of China Insurance Law", the Supreme People's court "on the application of the" PRC security law "interpretation of several issues (a)", "the contract law of PRC" and the relevant laws, administrative regulations, combined with the motor vehicle insurance contract disputes judicial practice in our city, the enactment of this guidance.

The establishment of a motor vehicle insurance contract, and take effect

Article 1Motor vehicle insurance contract can be insured the premium paid for the entry into force of the conditions of contract agreement. If the insured fails to pay the premium, after insurance accident happens, the insurer may refuse to pay the contract is not in force; the insurer refused to pay, may require the insured to pay the premium. If the insured to pay the premium, after insurance accident happens, the insurer in accordance with the premium and premium ratio assume insurance responsibility.

(different opinions: motor vehicle insurance contract can not be insured the premium paid for the entry into force of the conditions of contract, the contract has an agreement, invalid contract.)

Article secondIf the motor vehicle insurance contract is not the insured premium payment agreement for the entry into force of the contract, the insurer may the applicant fails to pay the premium on the grounds of refusing to undertake the insurance liability, but the insured the premium paid, the insurer shall bear the insurance liability.

Article thirdMotor vehicle insurance contract the insured since the insured the premium paid date assume insurance responsibility, the contract for the effective agreement. If the insured fails to pay the premium, after insurance accident happens, the insurer can the insurance period has not yet begun to refuse payment.

Article fourthMotor vehicle insurance contract may be agreed if the insured fails to pay the premium, after insurance accident happens, the insurer may refuse to pay, and may request the applicant to pay the premium.

Motor vehicle insurance contract if the contract when the insured fails, full payment of premium, after insurance accident happens, the insurer may refuse to pay. If the contract provides for the insurer in terms of format, the people's court shall be in accordance with the insurance law the nineteenth regulation from the insurer shall undertake the duty according to law by the invalid; if the agreed terms for non format provided by the insurance, the contract violates the fair principle of insurance law eleventh rules, the applicant according to the contract law the provisions of article fifty-fourth to the people's court for revocation.

Article fifthIf the motor vehicle insurance contract is considered untenable, invalid or revoked, have the party at fault for the other party to bear culpa compensation, compensate the other party for the losses, including but not limited to the contracting costs, ready to fulfill cost, loss of interest, opportunity benefit loss.

To clone car and other illegal vehicles for the contract of insurance of insurance in the insurance contract is invalid, by the people's Court recognized as invalid contract, the insurer shall refund the premium and indemnity insurance the insured interest loss, but not bear liability for loss of opportunity interest of the insured.

Two, the insured's duty of disclosure

Article SixthThe scope of the insured to the insurer to truthfully inform the interrogation range shall prevail, but not to the insurer in writing about the extent. The insurer for a written inquiry outside the scope of the matters that it has asked but the insured has not tell, should prove.

Article seventhThe insurance act sixteenth provisions of the fifth paragraph of the "seriously affected" means not informed of the matter for the insurance accident occurs, the main decisive factor. If the insured is not informed of matters gross negligence is enough to influence the insurer to decide whether or not to approve the coverage or raise the insurance premium, the insurer may depend on the insurance act sixteenth provisions of the second paragraph of cancelling the contract, but if it did not inform the items of the insurance accident does not have the major impact, the insurer shall not refuse to pay the.

Article eighthBy the insured to fill in the application form and other documents, and the insurance agent to fill in, the general should be identified as said the insured. If the insured claims it has to the insurance agent to make correct statement, but the insurance agent to fill in the wrong, should be based on the applicant's statement is, however, the applicant must prove.

Article ninthFor the following items, insurant inform obligation may be exempt: (1) the insured does not ask matters; (2) the insured has known or should become aware of the matter; (3) to the insurer agrees to insure or improve matters whether insurance rate independent; (4) the insurer has declared items without informed.

Article tenthIn the motor vehicle insurance contract, if the applicant is not insured, the insured to the insurance mark that matters is also matters insured should be aware of, the insured shall also make the insurers have the obligation to truthfully inform.

Article eleventhIn the insurance contract, the insured and the insurer has asked to learn but failed to inform or not accurately informed of the matter, without insurance man asked again, the insured shall notify the insurer, or should identify the applicant fails to perform the duty of disclosure.

Three, exclusion clauses tips, the specific explanation obligation

Article twelfthMotor vehicle insurance contract franchise, franchise, the scope of responsibility terms and conditions when the insured or the insured fails to perform the obligations, the insurer all or part of the terms of the exemption from liability does not belong to the "insurance law" stipulates that the seventeenth "terms of exemption from liability insurance", but the insured or the insurance does not perform the loss notice, it shall be treated according to "insurance law" twenty-first article.

The insurance clause in the "exclusion" section where the insurance of people who were some loss insurer is not liable, if the loss does not belong to the scope of the agreed terms of insurance coverage, the provision does not belong to the "terms of exemption from liability insurance".

Article thirteenthThe insurer in the contract in insurance, an insurance policy or other insurance certificate to the exclusion clauses are marked (such as font by increasing, and black, bold, italic, or using different color printing), and set up a "statement of the applicant" column in the form, or with separate production "the applicant statement", the insured has confirmed the signing and represents the concept, contents and legal consequences of the liability exemption clauses have been fully understood, can generally be identified the insurer has performed the prompt, the specific explanation obligation.

The telephone is insured, the insurer has the concept, as long as the consequence of insurance liability exemption clauses corresponding to the content and legal to the insured stated, the insured also expressed understanding, can maintain the insurer has to do that, the specific explanation obligation.

The insured to the insurance agent liability exemption clauses and prompt to make clear, the liability exemption clauses to the insured or the insured has the legal effect.

The applicant is the insurance industry practitioners, and in its marketing insurance and insurance coverage for the same type, the applicant disputed clauses makers or the insurer can submit sufficient evidence to prove that the insured is aware of and fully understand the controversial insurance liability exemption clause, the insurer need not prove the best tips and the specific explanation obligation.

Article fourteenthThe following situations, the insurer of liability exemption clauses that can be avoided, the specific explanation obligation:

(a) motor vehicle insurance contract driving without a license, drunk driving, the insured exemption;

(two) the insured in respect of the same type of insurance and insurance again, in a time when the insured against has clear the liability exemption clauses; such as the insurer has changed for the same set of insurance liability exemption clauses, and the dispute is change after the exclusion of liability clause, the insurer still responsible for the prompt, clear obligations.

(three) the provisions of the laws, administrative rules and regulations of the liability exemption clauses.

(different opinions: for the first, two kinds of situations, the insurer can only be appropriate to reduce the specific explanation obligation but not exempt.)

Four, the insurance interest

Article fifteenthMotor vehicle insurance contract the insured is under any of the following circumstances shall be deemed it has insurable interest:

(1) enjoy existing interests on vehicle, including ownership interests, right of possession, usufruct interest interest, mortgage interest, lien interests and interests of the creditor's rights;

(2) of the motor vehicle has the expectation interest;

(3) has responsibility interest on motor vehicle.

Article sixteenthMotor vehicles illegally obtained or illegal motor vehicle insurance, shall be deemed the insured has no insurable interest.

Article seventeenthThe validity period of contract of insurance, motor vehicle transfer, the transferee from motor vehicle ownership of a motor vehicle is transferred from the date of succession is the insurer's rights and obligations.

Motor vehicle after the transfer, the insurer fails to notify the insurer in time, to the vehicle transfer fails to notify the insured, and assigns different on the grounds that does not assume insurance responsibility, the court shall not support. But because the motor vehicle transfer risk increased significantly and the occurrence of the accident insurance, the insurer does not assume insurance responsibility.

Article eighteenthThe insured amount exceeds the insured value, the insurer of insurance amount exceeds the value of insurance claims invalid, it shall be supported. The applicant or the insured are not informed, the insurer shall refund the premium to people the surplus part of the insured; if the applicant or the insured person or ought to know, the excess insurance fee will not be returned.

Determination of five, insurance claims and liability

Article nineteenthThe same vehicle and the insured motor vehicle third party liability compulsory insurance and the commercial motor vehicle third party liability insurance, the compensation of mental injury and compensation for material damage in motor vehicle traffic accident liability compulsory insurance compensation in the order, the claimant shall have the right to choose. Who have the right to claim the priority of compensation for spiritual damages, compensation for material damage in part by the lack of commercial third party liability insurance compensation according to the insurance contract.

Article twentiethThe second-hand car, if the insurer in accordance with the actual value of a new car purchase price after deducting used term depreciation calculation of vehicle insurance, and voluntary insurance amount based on the value, although the insurance amount is higher than the actual price purchase a car, insurance according to the insurance amount for compensation, unless the insurer to submit proof of insurance the actual purchase a car prices not to perform such obligation.

Article twenty-firstVehicle insurance belongs to all imports of high-end vehicles, parts are original import, partial loss of vehicle insurance, 4S shop repair offer higher than the appraisal institutions entrusted by the loss of vehicle insurance prices, insurance shall be the insured vehicle repair costs in the actual compensation insurance limit inward, unless the insurer can prove the actual repair the cost is obviously unreasonable.

Article twenty-secondBecause link causes the actual owners and liability insurance policyholders, insured the phase separation, the owners had to third party shall bear the liability for compensation, the actual owners require insurers to assume insurance responsibility, shall support.

Article twenty-thirdIn liability insurance, the insured and the third party through mediation, people's court to issue civil mediation or negotiation of the amount of compensation is determined, the people's court in the trial of cases in the subsequent motor insurance contracts, should according to the request of the insured, the amount of compensation for the necessary audit.

For the medical expenses of the compensation standard, the national basic medical insurance drugs insurance people put forward the third use is not stipulated in the insurance provisions of the drug within the directory, the insurer should bear the burden of proof. If the insured person to submit proof of the third drugs used are not in agreement drug list, but the third is needed, the insurer shall compensate the part of medical expenses.

Article twenty-fourthThe insurance contract as the insured fails to claim to the insurer within the agreed time limit, the insurer is entitled to exoneration from liability, the relevant insurance claims agreement is invalid.

Article twenty-fifthThe accident occurred insurance tractor trailer when driving tractors, trailers, underwriting the insured shall bear the liability for compensation in the respective average liability insurance limit.

The tractor and the trailer are not insured the compulsory third party liability insurance, underwriting commercial motor vehicle third party liability insurance can be based on the insurance terms, deduct the two cars in the compulsory third party liability insurance of insurance amount, in the commercial third party liability insurance limit the responsibility of insurance.

Article twenty-sixthThe responsibility of the accident ratio of insured vehicle damage insurance clauses based on the insured motor vehicle drivers are negative in the accident bear corresponding liability for compensation shall be invalid.

Article twenty-seventhIn the commercial third party liability insurance, the insured damages in the traffic accident personal injury disputes because of its third party tort to the victim damage, was found and the third party shall bear joint and several liability, the insured may according to the decision of the victim to the liability insurance, but people still have the right under the insurance terms, only bear the corresponding compensation liability for the accident responsibility proportion the insured negative in the accident.

Article twenty-eighthThe personnel on the car (driver) liability insurance the insured motor vehicle drivers, motor vehicle owner himself or others, driving the insured vehicle insurance accident causes the vehicle owner himself or others, the loss occurs, the insurer shall not to motor vehicle owners on their own or others assume civil liability for compensation refused to compensate.

Twenty-ninth insurance in traffic after the accident, not timely in accordance with the law to pay the third party liability compulsory insurance compensation from litigation and loses the case, the resulting litigation fee shall be borne by the insurer burden.

Six, the right of Insurance Subrogation

Article thirtiethIn addition to allow qualified pilots insured intentionally caused by "specified in the first paragraph of article sixtieth of the law of insurance" insurance accidents, the insurer to the insured to allow qualified pilots of the exercise of the right of subrogation, does not support.

Article thirty-firstThe parties and the insured is under any of the following circumstances, should be identified and belongs to the "insurance law" stipulates that the sixty-second "Insured family members":

(1) the long-term living together, have a common family property relations;

(2) non living together, but with the legal relationship of maintenance;

(3) neither live together, nor bring up between close relatives.

The parties to the interests of the insured or accepted by a special legal relationship of trust of the insurer and the insured or carrying out activities, including the insured employees, partners and agents, shall be deemed to belong to the "insurance law" sixty-second article "the insured member".

Article thirty-secondThe period of limitation of action by the insurer exercises the right to claim for compensation to the third suspension, interruption, the period of limitation of action insurer subrogation correspondingly in suspension, interruption.

As the last six months during the insurance subrogation litigation limitation, between the insurer and the insured insurance contract dispute is still in the proceedings, should apply the "general rule of the civil law" provisions of article 139th, the suspension subrogation litigation, and the effect from the cases of disputes over insurance contract the referee instruments date, to calculate aging subrogation litigation.

Seven, the insurance contract interpretation

Article thirty-thirdInconsistent insurance contract format terms and conditions of the non format, with non format clauses shall prevail.

Article thirty-fourthInsurance and the insurance policy is not consistent, the people's court shall on the part of the contents is a substantive change is judged according to contract law the thirtieth regulation. If it is a substantial change, then the contents of the insurance contract in insurance shall prevail; if not constitute a substantive change, and the insured in the insurance policy is not timely received (can be provided for 30 days) opposed or the insured insurance offer did not clearly show that the insurer underwriting commitment not to the insured required to make any change, the people's court shall be in accordance with the contract law the thirty-first regulation, identified the contents of the insurance contract to the insurance policy shall prevail.

Eight, other

Article thirty-fifthLiability insurance of the insured caused harm to the third party, the insured prosecution request the insurer to pay the insurance money, if the insured fails to such third party compensation, the court shall add third as the third party to participate in the litigation, such as identification of liability insured for third, directly to the decision of insurance the third compensation insurance.

Article thirty-sixthThe views from the months of 2011 day of promulgation. Laws, regulations and judicial interpretations have new regulations, provisions of applicable laws, regulations and judicial interpretations.