Notes the legal issues of insurance underwriting (a vehicle)
   Nanjing Lu Xinfeng.Lxflawyer001@126.com)

Mesh      Record

The basic idea, the insurance contract

Two, the establishment of the insurance contract, effective

Three, the contract contracting fault liability issues

Four, pay for insurance premiums and insurance liability

Five, about the insurer and the insured asked the duty of disclosure

Six, the insurer explanation obligation

Seven, the insurance interest

Eight, about the insurance report

Nine, a special agreement

Ten, insurance, insurance contract is unknown

The legal problems in the course of doing business eleven, and car dealers, banks and other agencies and Industry

                                       Lead     Words

Dear colleagues, colleagues respect:

Some legal problems first thank underwriting department for giving me this opportunity here with the insurance underwriter share in the work. As we know, from a legal point of view, the insurance is specialized in contract business. Therefore, how to ensure that the contract signed, and the legitimacy of late contract service is the basic risk management in the insurance business.

But for a long time, because China's "insurance law" legislation is in principle, many of the provisions of the lack of operability in insurance practice. With the development of the domestic insurance industry, the rough law already can't satisfy the need of insurance business. Mainly displays in two aspects: first, in many specific issues of insurance company management is lack of clear guidance, lead to the insurance company not know what course to take in decision making, it is difficult to control the legal risk early, thus increasing the possibility of operation later disputes; second, the judicial practice in the judicial organ to the law accurately grasp, often lead to different court, even the same court different judges have different understanding of the same problem, the settlement of insurance dispute is full of subjectivity, the judicial authority. The above two aspects have a serious impact on the development of China's insurance industry. In the company's daily work, I summarized some ideas from, then make a report to you. My report is divided into eleven parts

 

A The basic idea, the insurance contract

The concept of insurance contract mainly involves two categories, namely, the definition and characteristics of insurance contract

1The definition, the insurance contract

Firstly, we introduce the following what is insurance, according to the provisions of article second of the law of insurance, insurance is the insured under the contract, pay insurance premium to the insurer, the insurer may be agreed upon in the contract for accidents caused by the loss of their property compensation insurance payment responsibility, or when the death of the insured, disability, disease or meet the stipulated age, term contract undertake to pay the insurance business insurance liability. Here we should pay special attention to, insurance and general civil legal behavior is different, it is an expected behavior, so the dissolution of insurance contract and the general contract of civil law is different.

So, what is the insurance contract? According to the insurance law the tenth regulation, is the insured and the insurer agreed insurance rights and obligations of the agreement. This definition is defined in the contract of insurance law form, namely, what is the protocol. After the conclusion of the contract, binding on the parties, the contract law the eighth regulation a lawfully formed contract is legally binding on the parties. The parties shall perform their respective obligations in accordance with agreed, shall not alter or rescind the contract. The contract established according to law, shall be protected by law. However, insurance contract because belong to the pre arranged on unknown risk, therefore, the insured may terminate the contract. Accordingly, insurance law the fifteenth regulation, except as otherwise provided in this law or the insurance contract provides otherwise, after the establishment of insurance contract, the applicant may terminate the insurance contract.

2The characteristics, the insurance contract

The characteristics of insurance contract is mainly embodied in three aspects:

First, the insurance contract is a contract of utmost good faith. The insurance law of honesty and credit, is its unique values, honesty and credit are different in civil law. The honest credit general contract entered into before, as well as reflected in the performance after the termination of the contract the parties of honesty and credit; but in the insurance law, the utmost good faith is to prevent the occurrence of moral hazard and adverse selection behavior, mainly has the obligation and duty of disclosure obligations; system is different from the civil law system for fraud, and exclusion of fraud system.

Second, the insurance contract is a contract of adhesion. Contract of adhesion refers to one party makes the other party accepted the conditions and the establishment of the contract; it is to the same specifications products rather than the strong and the weak; the format of the contract in order to prevent injustice, application of interpretation rules. 31 rule of insurance law, the terms of the insurance contract, the insurer and the applicant, the insured or the beneficiary of a dispute, the people's court or arbitration organizations shall be favorable to the insured and beneficiary explanation. 41 the provisions of contract law, dispute over the understanding of the standard terms occurs, it shall be interpreted according to general understanding. There are two more on the interpretation of terms of format, shall make a decision not to provide an explanation of terms of format. Inconsistent format clause and non format terms, shall adopt the non format terms. Some scholars believe that the contract of adhesion the free will of the parties is limited, but in fact, no contract is not a contract of sale, therefore, the parties have no free will cannot be considered.

Third, the insurance contract is a contract: Gambling gambling contract refers to the uncertain events as the rights and obligations of the parties to the contract conditions; also known as opportunistic contract; in order to prevent gambling, for inherent in the principle of insurable interest. Insurance Act twelfth provisions the applicant for insurance shall have an insurable interest subject. The applicant for insurance has no insurable interest in the subject-matter, the insurance contract shall be invalid. Insurable interest means that the applicant on the recognition of insurance mark with the interests of the law. So, how to judge whether the applicant has insurable interest? Generally speaking, the property insurance, ownership, usufructuary, possession, guarantee right has an insurable interest.

 

Two, the establishment of the insurance contract in force.

 1Offer and acceptance, insurance

In principle, the establishment of insurance contract shall be subject to the insurance of offer and acceptance of such a declaration of exchange process, the offeree to make a commitment to an insurance offer, as a symbol of insurance contract. The offer is offered to enter into a contract with other means, the declaration shall comply with the following provisions: (a) the specific content is determined; (two) that undergo the offeror promises, the offeror is the meaning of constraints. Commitment, is refers to the offeree agrees to accept the offer on the terms and conditions and the establishment of contract. General insurance behavior is a commitment, but if the policy is different from the insured single content, is considered to be a new offer, to the insured agree.

Our country insurance act thirteenth provisions of the first paragraph of applicant requests insurance, the insurer agrees to accept the proposal, and reach an agreement on the terms of the contract, the contract of insurance. The insurer shall issue an insurance policy or other insurance certificate to the applicant in time, and shall be indicated in the insurance policy or other insurance certificate in the contents of the contract.

2The entry into force, commitment

In principle, promised to arrive, contract. The parties may in the proposalform agreed insurance policy issued after the establishment of the insurance contract. Contract law of China, the provisions of article twenty-sixth, effective acceptance notice reaches the offeror. Acceptance becomes effective has the following four kinds of situations.

First, make the commitment. The offeree to the offeror promises to dialogue, to offer people understand the commitment to the content, the acceptance reaches the offeror basis for judgment. Make the commitment, since the offeror to understand its content effect.

Second, made by non dialogue promises. Made in a non oral style commitment, control places to commitment letters, telegram, communicated to the offeror to understand the content of the effective when.

Third, make the form of data telex commitment. Issued in the form of data telex commitment, the effect of time (at the same time), because the offeror is a specific system to receive the designated commitments vary. The offeror designated specific system receiving the promises of the data message, issued by the commitment, since its entry into the specific system, while the effect is reached; the offeror does not specify a specific system to receive the promise of the data message, issued by the commitment, since any of its system for the first time in the offeror, as to reach the effect.

Fourth, behavioral commitment. The offeror in the offer, the offeree may have declared the specific behavior make a commitment, then the offeree to the behavior in accordance with the offeror declared behavior, commitment to take effect. Furthermore, the offeror in an insurance offer, did not declare the offeree can act in accordance with the commitment, but between the offeror and the offeree has formed a transaction practices or the existing transaction practices, the offeree to the behavior of accept insurance offer, without notice, then the offeree in making the commitment to act, the acceptance becomes effective. If the insurance premium, the insurance policies issued.

3In particular, the problem

First, confirmation

The parties in the form of mail, data message, the contract, can sign the contract before the establishment of confirmation. When the contract was signed confirmation.

Second, the signature or seal

The parties conclude a contract in written form, the contract the parties sign or seal.

Third, behavioral commitment

Laws, administrative regulations or the parties have agreed to enter into a contract in written form, the parties do not use the written form, but one party has performed its main obligation, the other party to accept, the contract is established. Where a contract is concluded in the contract in written form, before the signature or seal, if one party has performed its main obligation, the other party to accept, the contract is established.

Such as the issue of insurance (insurance with policy issued obligations in the contract, the premium), belong to the behavioral commitment.

4, insurance contract is a promise contract,The insurance policy is not as elements of contract.

"Insurance law" the twelfth regulation, "the insurer shall issue an insurance policy or other insurance certificate to the applicant in time, and shall be stated in the insurance policy or other insurance certificate in the contents of the contract". At present, the issue of insurance problems, theory generally has three ideas: definitely say that the insurance policy is a necessary condition for the establishment of the contract; negative say that the insured and the insurer on the terms of the contract agreement contract, insurance only contract documents; issued third claims that insurance is after the establishment of insurance contract insurance obligations, but also denied insurance as elements of contract. In practice, this problem is often related to the insurance accident insurance policy issued before the occurrence, whether to the insurer liability problem.
  Legally speaking, insurance is not insurance contract itself, but the establishment of proof of insurance contracts or bibliographic documents. After the Party of insurance contract through a process of offer and acceptance of an insurance agreement, it means that the insurance contract has been established, the insurance policy is issued, it shall not affect the liability for compensation (unless both parties agree to issue an insurance policy as the only form of insurance commitment). The contract law of our country stipulates that the forty-fourth," The contract established according to law, since its establishment in force". Also, insurance policy issued by the insurer the initiative control, if the insurance policy issued as a contract requirement, is bound to increase the insured's inferior position, it is difficult to play insurance economic security function.

5Effect of the insurance contract

For the effect of the insurance contract, the insurance law of our country of thirteenth and fourteenth were not specified. But can the relevant contract applies the law of contract in force. The provisions of the 1 paragraph of Article 44 of the contract law, the contract established according to law, since its establishment in force. Conditional contract, when the conditions are fulfilled, the entry into force of the contract; if the insured person qualification. Duration of insurance contract, contract in time, according to the payment; such as the first premium agreed. The provisions of the laws, administrative rules and regulations shall go through the formalities for approval, registration as, in accordance with the provisions of. Approved by the entry into force of the insurance contract in force from the date of approval, in accordance with the law, but this is not.

It is worth noting: the insurance contract in force after the insurer according to the agreed time begin to undertake the insurance liability, not in effect at the time of beginning to take responsibility. 14 rule of insurance law, after the establishment of insurance contract, the insured shall pay the premium in accordance with the agreed time; insurance people begin to undertake the insurance liability.

6The contract of insurance, the consequences of

1) delivery insurance premium

The basic obligations of the insured is delivery insurance premium.

14 rule of insurance law, after the establishment of insurance contract, the insured shall pay the premium in accordance with the agreed time; insurance people begin to undertake the insurance liability.

2) policy is issued

After the establishment of insurance contract, the insurer to the insured has the obligation to issue an insurance policy. 13 rule of insurance law, the applicant requests insurance, the insurer agrees to accept the proposal, and reach an agreement on the terms of the contract, the contract of insurance. The insurer shall issue an insurance policy or other insurance certificate to the applicant in time, and shall be indicated in the insurance policy or other insurance certificate in the contents of the contract.

3) began the liability of the insurer

The liability of the insurer, in the insurance contract, does not depend on the payment of insurance premiums. 14 rule of insurance law, after the establishment of insurance contract, the insured shall pay the premium in accordance with the agreed time; insurance people begin to undertake the insurance liability.

 

A case

Case 1: Zhang to the insurance company to insure the vehicle damage insurance, insurance for one year, but Zhang fill out the application form of insurance has been reluctant to pay the insurance premiums, the insurance company and therefore has not delivered the insured insurance, accident insurance in the insurance period, Zhang claim to the insurance company, insurance exclusions. Therefore lead to litigation.

Case 2: such as Zhang after completed application form, then the payment of insurance premium of insurance company, insurance company has not yet issued by accident insurance, insurance, who can refuse compensation.

Case 3: if the insurance company salesman for generation of Mr. Zhang to fill in the application form, the insurance company shall accept and issue the insurance policy, Mr. Zhang did not pay insurance premium, insurance expires, no accidents, the insurance company to court, asked Mr. Zhang to pay insurance premiums.

Situation 4:If the insurance company salesman for generation of Mr. Zhang to fill in insurance, accident insurance in the insurance period, a claim on the insurance, the insurer to avoid clause refused to pay, Mr. Zhang did not inform the exception clauses that exemption clause is invalid, the insurance company shall make compensation for the.

The focus of controversy: (1) an insurance contract is established? (2) whether the insurer shall bear the insurance liability?

The judgment of the court: the insurance company should assume insurance responsibility.

Reason: insurance company clerk made in court as a witness to the Zhang really buy this insurance, and the salesman has to Zhang said the insurer has agreed to underwrite.

 

Analysis

Insurance law thirteenth: applicant requests insurance, the insurer agrees to accept the proposal, and reach an agreement on the terms of the contract, the contract of insurance. The insurer shall issue an insurance policy or other insurance certificate to the applicant in time, and shall be indicated in the insurance policy or other insurance certificate in the contents of the contract.

Insurance law fourteenth: after the establishment of insurance contract, the insured in accordance with the agreed delivery insurance premium; the insurer according to the agreed time begin to undertake the insurance liability.

From the regulation of insurance law, insurance contract is a non formal contract. The establishment of insurance contract not to the insurer issued policy conditions, and if no special agreement in the contract of insurance, or to pay the insurance premium are not as elements of the insurance contract in force or assume insurance responsibility.

Enlightenment

A, insurance contracts are informal contracts, do not have to take written form, issued by the insurer in the course of the exhibition industry of fax, e-mail and agrees to underwrite insurance agents, sales of written, verbal commitments may constitute the insurer agrees to accept the commitment. And the establishment of the insurance liability insurance contract undertaking not to issue an insurance policy is essential

Two,The insured do not pay insurance premium, so the detention practices policy does not exempt the liability of the insurer bear.

Three,To avoid such risks: will not pay the insurance premiums, insurers do not assume insurance responsibility recorded in the application form.

 

Three, the contract contracting fault liability issues

1, the definition of contracting negligence responsibility: contract law the forty-second regulation: in any of the following circumstances in one of the parties contract signing process of other causes, for losses, shall be liable for damages. (a) pretending to conclude a contract, and negotiating in bad faith; (two) intentionally conceals important facts related with the contract or providing false information; (three) other acts which violate the principle of good faith.

2, contracting fault liability

(1) occurred in the process of concluding a contract; (2) the contract have not yet been set up; (3) the contract was not due to one of the parties has caused the losses; (4) the other party has fault.

Type 3, contracting fault liability

(1) the conclusion of the contract or the damage isn't important types (2) types of damage caused by the contract is not generated (3) types of damage caused by not contract to produce

4, the scope of compensation liability

Case two

In December 10, 2005, Wang Mou to property insurance company salesman offered to buy vehicle insurance, the insurance salesman in December 12, 2005 will be a single handed Wang by completing back to the company, the insurance company in December 26, 2005 issued by the insurance policy. But Wang insured vehicle in December 20, 2005 has the traffic accident, the vehicle total loss. Wang Mou claim on the insurance, the insurance company refused, so lead to litigation.

The focus of controversy: the insurance contract is established? If not set, whether the insurer shall be liable for compensation?

The judgment of the court:

An insurance company shall, on the insured losses shall bear the liability for damages

Analysis

The applicant to fill in the application form submitted to the insurance company, as an insurance offer to the insurance company, the insurance company shall make agree that underwriting means reasonable time after receiving the offer after the insured within the expected. In this case the insurance policy holders received in only two weeks after the issue insurance policy, the insurance contract was formally established. But a insurance offer to the insurer in the applicant issued policy in this period, the insured due to the fault of the insurance contract during the period of insurance contract is not established, which leads to the insured suffers a loss, unable to get compensation. Therefore, the insurer shall undertake the liability of culpa in contrahendo, namely take its promises to delay the losses caused to the other party.

The problem:

Define the reasonable time commitment? How to determine the liability for contracting negligence responsibility?

Enlightenment

Insurance contract through the offer and acceptance of two stages,The insured to the insurer to submit insured single behavior can be regarded as an offer, if no other information (such as the fax, mail to underwrite the insurance certificate insurance), who is regarded as the promise of the insurers, insurance contract has since founded. However, the insurer promises should be made within a reasonable period of time, or may be due to delay and shall bear the responsibility for compensation.

 

Four, pay for insurance premiums and insurance liability

1 for the payment of premium and the relationship between the insurance contract entered into

"Insurance law" the thirteenth parties to the insurance contract rights and obligations of the two parties is under way: "after the establishment of insurance contract, the insured shall pay the premium in accordance with the agreed time; insurance people begin to undertake the insurance liability". This article makes effect on the insurance contract disputes over: a view of the insurance contract is the contract only after practice, insurance fee paid shall take effect; another view was that the insurance contract is promissory contract, as long as the two sides through the offer and acceptance stage, the insurance contract shall establish effective.
    Based on our analysis on the insurance contract and the effect elements, the insurance contract is promissory contract, it was not to pay premiums for elements. If the parties have agreed, the insurance contract shall be paid to the insurance law will take effect, so it is agreed upon by the parties of insurance contract when the effect of an additional delay or stop condition, and the establishment of the insurance contract are the two concepts. But the insured to pay the premium and the insurer, the responsibility of insurance is the insurance contract after the contract both sides bear the obligations prescribed by law, they are parallel, and non causal relationship. After the establishment of insurance contract, the insured shall in accordance with the contract, pay insurance premium; at the same time, the insurer in accordance with the agreed time began to assume insurance responsibility for compensation or payment obligations. Therefore, the premium is not paid insurance contract effective elements of A.
 2, the insurance premium payment and collection

The insured the premium the delivery agent, shall be deemed to be the premium to the insurer, insurance companies not to insurance agent has not been the insurance premium to insurance companies on the grounds, refused to undertake the insurance liability

3,The insurance premium to pay for insurance liability clause. In the insurance business, all aspects of business risk, cost considerations can be insuredIn the insurance contract and the insured shall pay insurance premium is the condition for entry into force of the insurance contract, the insurance contract into conditional contract.

4,Legal claim after accepting insurance premium. In the insurance practice, there are many policyholders in insurance, holding fluky psychology, not according to insurance contract agreed to pay insurance premium, but the insurance after the accident to pay insurance premiums, requiring insurers assume insurance responsibility,

Case three

In June 30, 2003, Zhou Shaohua was the coach and the insurance company signed a motor vehicle insurance contract, the compensation scope of insurance contract, insurance premium and vehicles don't after be or get out of danger, especially in the contract, pay insurance premium of 2000 yuan, pay the balance of 4033 yuan limit zero before September 5, 2003, otherwise, the insurer has the right to refuse to pay or terminate the contract. Vehicle insurance claims in October 30th. In October 31, 2003, Zhou Shaoxi (Zhou Shaohua's brother) will be handed over to the insurance agent, agent issued to the premium receipt.

The judgment of the court:The insurance company to assume insurance responsibility, the reason is that insurance agent's behavior as the insurer's behavior, the insurer accept insurance, the principle of utmost good faith based, as give up the right of insurance contract.

Waiver: insurance contract party expressly or implicitly, to give up a right in the contract. This right, in the insurance contract generally refers to give up the right to terminate or right of defense.

The problemIn the two stage: if the premium clear issued by endorsement:Under this policy are scheduled for September 5, 2003 paid the premium has been paid, the real date is October 31, 2003, so from September 5, 2000 to November 1, 2000 at the front, the company does not assume any liability insurance. The court will decide?

 

Five,On the insurer's inquiry and the insured informing obligation

1, the duty of disclosure scope

For our country's Insurance Law holds what legislation, there is great controversy among scholars. Some scholars believe that China adopts the ask answer doctrine, some scholars believe that China adopts the automatic reporting doctrine, and scholars believe that China's take is to ask answer doctrine, doctrine of automatic reporting subsidiary legislation.Take our country from the provisions of the insurance law of our country's legislation should be asked, but to take our country from the provisions of article seventeenth, paragraph 4 of the third view it seems sometimes automatic reporting legislation. The author thinks that rules can understand this insurance law of our country our country adopted in the scope of the duty of disclosure is the ask answer doctrine legislation. But in the determination of the duty of disclosure in violation of the duty of disclosure, the duty of disclosure is not properly inform the insurer to ask important facts in matter elements.

China Insurance Regulatory Commission in February 21, 2006 "on issues related to the dispute of the case of insurance contract" that reply:

According to the insurance law provisions of article seventeenth, the insured conclude when insurance contract of the duty of disclosure, should belong toInquired disclosureThe insurer, which put forward by written or oral form of inquiry, the insured has the duty to inform. If the insurer on related matters in the risk question proposed, the insured is not complete, should be regarded as the applicant fails to perform the obligation of informing

2, the duty of disclosure principle is what the insured the insurer to ask a what, don't ask don't answer. It depends on the insurance company for the level. Unlike the maritime law.

Inquired disclosure principle should include the insured and the insured person, ask to inform the principles such as the insured does not ask, deemed to have been told, this principle is not conducive to the insurer, is conducive to the insured.

17 rule of law of insurance, the insurance contract, the insurer shall explain the contract terms to the applicant, and on the situation in the objects of insurance or the insurant's questions, the applicant shall truthfully inform. (the premise of the duty of disclosure)

The insured intentionally conceals the facts, not to perform such obligation, or negligently fails to perform the duty of disclosure, enough to affect the insurer to decide whether or not to agree to accept the insurance or to raise the insurance premium, the insurer has the right to terminate the insurance contract. (the burden of proof shall be borne by the insurance company)

The applicant intentionally fails to perform his duty of disclosure, the insurer for the insurance contract of insurance accident, not to undertake the compensation or payment of the insured amount, and does not return the insurance premium. (the burden of proof shall be borne by the insurance company)

The applicant negligently fails to perform the duty of disclosure, there are serious influence the occurrence of the insured event, the insurer for the insurance contract of insurance accident, not to undertake the compensation or payment of the insured amount, but may return the insurance premium. (the burden of proof shall be borne by the insurance company)

Need to pay attention to the problem:

A if the insured the insurer in writing and see their situation does not match, should be regarded as the Underwriters waive ask.

B insurers such as asking the comparison principle, lead to controversy, probably because the insured the insurer lost, lack of professional knowledge, do not know to should be told, but the insurer to prove the applicant is at fault, violation of the duty of disclosure, prove that the subjective intention and negligence is very difficult.

C deliberately disobeyed inform obligation and civil law constitute fraud overlap of articles of law, special law provisions applicable

Case four

Customer statement
Our company a transportation station has a container truck, the car in March 26, 2002 in a property insurance company of the insured motor vehicle insurance. In December 23, 2002 the car accident, my company in 2003 May 18 to the insurance company to submit all the claims documents according to claims, the insurance company does not raise any objection to the documents, our company in accordance with the relevant provisions of the "insurance law", the query claims do to the insurance company in July 18, 2003, the insurance company to inform our the documents are not complete. From July 18, 2003 to August 20, 2003, during which I had several times to the insurance company call reparations, the insurance company every time in the documents are not complete for delay compensation. Until the Division I sent several times to negotiate the insurance companies, the insurance company said the company at the time of purchase is non operating car insurance, but is actually operating vehicle, therefore refused to pay reparations.
According to our name, the insurer should be aware of our company is a professional transportation company to "business" for the purpose of. As a non professional insurance policyholders, we don't know "insurance difference operation" and "non operating". As a professional insurance, the insurance company did not inform "insurance difference operation" and "non operating" vehicle to vehicle, only to our issue insurance policy. So we require the insurance company must bear the indemnity obligation.
　　Company description
Upon review, the insurance vehicle in December 23, 2002 third people because of vehicle collision accidents. According to the terms of auto insurance and related documents to verify, because the customer business car to non operating car insurance, breach of the duty of disclosure, the case for the twelve treatment, taking into account the insured a transport station of the vehicle for non operating vehicle insurance, the insurance contract has no effect on contract, the withdrawal, as the policy covers treatment.
　　Editor's comment
Because the nature of the use of vehicles and non operating vehicles of different size, different risk, so the insurance premium rate is not the same. This case reminds the insured shall truthfully inform, real purpose vehicle in the insured motor vehicle insurance, the insurer the right to evaluate risk, to determine the insurance premium rate. Otherwise, even if the purchase of insurance premium, cost, still can not be guaranteed, this is everybody is not willing to see. Of course, the insurer shall be the applicant more reminders, to avoid unnecessary disputes.