Notes the legal issues vehicle insurance underwriting (two)

Lu Xinfeng

 

Six,The insurer explanation obligation

1The meaning of the terms, insurance

Insurance refers to insurance companies and insurance prepared to act as the same each insurance contract terms. Clauses of clauses. Standard terms are prepared in advance by a party for repeated use, and not negotiated with the other party in the conclusion of the contract terms. Prior to the introduction of insurance clauses in the insurance contract, does not have any legal effect. It cannot be simply discuss the insurance clause. The insurance clause is different from the terms of the insurance contract, the terms of the insurance contract including insurance clause.

2, property insurance clauses

Insurance clauses are divided into two kinds, one is subject to approval clause, a clause for filing. 107 rule of insurance law, the insurance clauses and insurance rates between the interests of the public insurance coverage, the compulsory insurance of insurance and new types of development such as life insurance, shall be submitted to the insurance supervision and administration department for examination and approval. The insurance supervision and administration department for examination and approval, the principles of protection of public interest and to prevent unfair competition principle. The scope of the examination and approval and the specific measures shall be formulated by the insurance supervision and administration department. The insurance clauses and premium rates of other insurance, shall be submitted to the insurance supervision and administration department for record.

Insurance clauses for the record is part of the contract of insurance, reflect the intention of the parties rather than government or state, is still part of the format contract, belongs to the meaning of the parties. Part of the insurance clauses and insurance contract is approved, reflect the intention of the parties rather than government or state, is still part of the format contract, but its content after the insurance supervision and administration department state approval and can not be explained.

3,The relevant provisions of laws, rules and regulations.

(1) insurance law the seventeenth regulation: the insurance contract, the insurer shall explain to the applicantThe terms of the insurance contractContent.Rule eighteenth: insurance contract provides for the insurerThe liability exemption clauses, the insurer shall specify in the contract, is not clear, the clause shall not be binding.

(2) the provisions of the CIRC shall be pointed out that in May 26, 2003 about the issues related to policy content that reply: the proposal form is a proposal written proof of insurance, if the insurance on the insured single "special agreement bar" content is not covered, it shall inform the applicant in a reasonable way, and make clear. Whether the insured has fulfilled the obligation to inform the,, by the people's courts or arbitration organizations identified.

(3) the judicial interpretation of the Supreme People's court, the Supreme People's Court: Research on the "insurance law" stipulates that the seventeenth "clear" should be the question of how to reply (January 24, 2000?? Law No. [2000]5)
The Gansu Provincial Higher People's Court:??
You in the hospital (1999) GaN high Law No. 06 "on the Jinchang City Tourism Bureau vs. PICC Property Insurance Company in Jinchuan District branch insurance compensation case reporting" received. Through the research, the answers are as follows:??
"Insurance law" of the people's Republic of China stipulates that the seventeenth: "insurance contract provides for the exemption of liability insurance, the insurer shall specify, unspecified, the clause does not have legal effect." Here the "clear", refers to the insurer before signing insurance contract with the insured or the signing of the insurance contract, the exemption clause in the contract of insurance contract, in addition to prompt the insured policyholder pays attention, it should also be the relevant concepts, the exemption clauses and its legal consequence and so, in written or oral form to the insured or their agents to explain, true meaning and legal consequences to the insured that the clause.

4The provisions of the insurance companies, business development requirements:

The 1 clause of the contract, the insurer must explain. 2, about the exclusion clauses, the insurer shall prove to the insured to clear and prompt duty.

5At present, our exhibition industry in the process of:No special agreement content 1, form. 2, part of the auto insurance business, especially the 4S agent, no insurance, according to insurance underwriting data. 3, the single non insured signature or clerk signature generation. 4, insurance, policies do not attach clause. (part of the agency will be binding clauses and insurance policy together, give the insured)

6,Insurance contract dispute, because the insurer fails to perform the specific explanation obligation and lost more.How the insurer that has done that obligation, is not an easy thing to solve. Oral presentations in both relative only the interests of the present, and that it is difficult to prove. According to our province and even the national insurance judicial trial practice and insurance cases, and consult the court in part of the province and Nanjing City Intermediate People's court trial judge insurance group opinions, court in an insurance case, the insurance company to the insured and the insured obligations or exemption clause, exclusions, regardless of whether the plaintiff to "the insurance clause did not inform obligation" as a defense, the court will invoke the seventeenth Insurance Law Article 18 review, the insurer has no evidence "has been fulfilled inform obligation", exemption clauses are not effective, the insurance company shall be liable for compensation.

The insurance company can provide the evidence to the court force is the insured's autograph policy, the insurance company (including our insurance applicant statement) format - column "the policy generally have corresponding provisions of insured person has received and read, the insurer has the full terms clearly state, I have known the meaning, agree with the description of all", the insurance company to submit to the court in accordance with the provisions of the insurance, the insured has no evidence to the contrary refute, the court generally recognized in the case of the clauses of the trial. Thus, in the proceedings, whether can provide the insured autographed by the court of appeal decided to insure the single most insurance litigation success or failure, and the company is related to the success of lawsuit benefit and reputation. It can be asserted that, in the current insurance law without further modification of the circumstances, the insurance law article seventeenth Article 18 debate is each insurance litigation in court the eternal topic.

I Division in the business operation status is more severe, the year 04, our insurance clauses (insurance) will change practice printing after policy or insurance certificate, for separate terms together with the policy text delivered to customers, in addition, insurance system (including Division I) various types of insurance insured single signature rate very low, mostly without insurance, agency staff or our business staff to sign on behalf of insured single phenomenon, from a large number of trial practice, litigation risk that greatly enhance our twelve cases, once the refusal cases concerning and litigation, our company is customer delivery terms is still difficult to make strong that, more difficult to talk about as much as the explanation obligation, therefore, company legal Gang think, given the company's short-term cannot change will be the practice of insurance clauses printed after the policy or insurance certificate of the insured, I will seriously implement single signature pen work, regulate the procedure does not necessarily lead to decline in efficiency, the work as long as I our intention is to do, can do, and must do.

To sum up, in view of the importance of the insured single signature pen, suggestions:

(1) in Division I signed agent and cooperative units (Part-time) agreement, expressly agreed to the insurant "agent should clearly inform the clause of insurance contract within the same, especially the insured has the obligation and the content of exemption clauses, and to ensure that the applicant signed insurance, as a result of failure to fulfill the obligations, cause our company undertake the insurance liability, the agent shall this insurance amount of compensation to the Division I assume default responsibility", the specific wording, can be revised, the provisions in accordance with the provisions of insurance supervisory authorities of documents, in accordance with the interests of the company, home agent should bear the obligation of legal and effective, fair.

(2) the company should make the corresponding adjustment to the flowchart, in strengthening agent training at the same time, in the document should be "clear" the content of the eye-catching written notice, and request the applicant in the "clear" content near the signature confirmation.

 

Seven, the insurance interest

1,The relation between the principle of insurable interest and insurance contract concluded

The principle of insurable interest is an important principle of the insurance law, its role is to effectively eliminate the likelihood of gambling and to prevent the occurrence of moral hazard. The principle of insurable interest means that the applicant has legally recognized interest in the subject matter of the insurance should be. China's "insurance law" Eleventh article first, 2 paragraph: "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." Therefore, the current insurance law insurance interests as a force element of insurance contract. The applicant shall have an insurable interest in the insured at the time of the accident and according to

2,Determination of property insurance insurance interests:

Reason 3, about insurance interest dispute is mainly the insurers without strict scrutiny is the applicant has insurable interest, after be or get out of danger to the insured (the insured) do not have insurance interest grounds exclusions, often trigger disputes. Here relates toPrinciple of Estoppel:

Case five

Wang for the purchase of motor vehicle insurance motor vehicle insurance, the insured and the insured person Wang, and the vehicle actual Wang, but the car registered owner to Zhou, in use after the subject matter of the insurance claim, a claim to the insurance company, insurance company to the car for a week Wang, do not have insurance interest grounds exclusions. Thus, lead to litigation.

Issue: whether Wang has the insurance claim?

 

Eight, about the insurance report

1,The relevant provisions of the circ:

"Property insurance company insurance clauses and insurance premium rate management approach" (CIRC to [2005] No. 4)

Article SixthInsurance institutions formulate insurance clauses and insurance premium rates, shall meet the following conditions:
(a) structure is clear, accurate textual, strict interpretation, easy to understand;
(two) integrity, without losing fairness, not against the legitimate interests of the insured, does not damage the public interests;
(three) the relevant provisions in accordance with the law, administrative regulations and Chinese circ;
(four) the insurance premium rate is reasonable, not to endanger the solvency of the insurance company or impede fair competition in the market;
(five) other conditions Chinese CIRC provisions.

Article ninthThe insurance company shall submit the approval of insurance clauses and insurance rates, shall submit the following materials:
(a) the application documents;
(two) and table two copies;
(three) the insurance clauses and premium rates for text;
(four) explains the insurance clauses and insurance rates, analysis of the main characteristics, including the insurance clauses and insurance premium rate market risk and operational risk;
(five) to sign the actuarial responsible person of insurance premium rate actuarial report, including actuarial assumptions, methods, formulas and calculation process;
(six) the actuarial responsible person certificate;
(seven) the legal responsible person certificate;
(eight) the electronic text of all submitted materials;
(nine) China other materials required by the circ.

Article eighteenthChina CIRC or its local offices shall report the date of 20 working days, according to the following circumstances dealt with separately:
(a) the materials is not complete, notify the insurance mechanism to supplement the materials within 10 working days;
(two) the materials to complete or insurance institutions to supplement the materials, China CIRC or its local offices shall be on the table number, seal, a file, a refund insurance institutions.

Article thirty-sixthInsurance institutions have lodged insurance terms and premium rates are found in violation of the provisions of the provisions of article sixth, Chinese CIRC or its dispatched institutions shall be ordered to make corrections or stop operating, insurance agency fails to correct or not stop operating, punishable by 100000 yuan to 500000 yuan shall be imposed; if the circumstances are serious, can limit the scope of business, shall be ordered to stop accepting new business or revoke the license for operating insurance business; for the senior management personnel of insurance institutions directly responsible and other directly responsible personnel, by Chinese CIRC or send out mechanism depending on the circumstances shall be given a warning, a fine of 20000 yuan of above 100000 yuan of the following.

Article thirty-seventhLegal liability of violation of the provisions of article twenty-sixth of people, the actuarial responsible person in violation of the provisions of article twenty-seventh, the China CIRC shall be ordered to make corrections and may require the submission of a written examination; two times within two years of the violation of the above provisions, the CIRC shall be given a warning China depending on the circumstances, impose a fine of 5000 yuan; three times within two years of the violation of the above provisions by the CIRC, Chinese ordered the replacement, and since 2 years found no longer approve its legal liability or actuarial responsible person qualification for its violation of.

2,Can be seen from the above provisions:

(1) the CIRC for record the insurance supervision is a supervision. The need for insurance report, CIRC only to the materials are complete review, the insurance clauses do not make substantive examination, the insurance provisions of audit liability is assumed by the legal responsible person and the actuarial responsible person. Property insurance company insurance clauses and insurance premium rate management measures "Article 36, Article 37 for later found in violation of regulations, make severe punishment measures, therefore, if the insurance clause insurance companies report does not comply with the relevant provisions of the measures, even if the reported success, there are regulatory risk.

(2) "administrative supervision scope of insurance company insurance law" provisions, and the rate of provisions, but does not provide the corresponding legal consequence. "Explain" clearly beyond the scope of the contract and the basis is not a party to the insurance clauses, the rate for the contract null and void the contract, at the same time, principles and scope of both bear the contracting negligence liability provisions. This requires companies to strictly fulfill the insurance clause insurance product approval or filing procedures.

 

Nine, a special agreement

From the meaning of general contract law says, "special agreement" clause to Clause itself, belonging to the non standard terms, the effect is relatively high in terms of terms of format, content format terms and special clauses is inconsistent or format not about timing, should take special agreement shall prevail. Nevertheless, the rules of format terms, in recent years has been questioned and challenged in judicial practice, many court denied the "effectiveness of special agreement" clause in the verdict, the insurance company has also paid economic costs are not small.

First of all, because is not consistent content design insurance and insurance on (even inconsistent, substantial such as insurance is very difficult to see the "special agreement" clause), this is a violation of the "contract law" article thirtieth "commitment to the content should be consistent with the content of the offer.". The same is based on "contract law" the provisions of article thirtieth, the strict sense, the insurance company insurance policies issued in the legal sense should belong to "a new offer". At this time, the insurance contract is not established. The establishment of insurance contract must rely on the insured on the "new offer" approval or not dissent.
  At this time, the insurance company in a very passive position, facing the insured does not recognize the uncertainty on the one hand, on the other hand, the insured can be free to make the recognition is advantageous, to not accept the adverse selection.
Second, because the policy "special agreement" clause contains reduced or exempted from part of the insurance responsibility for the content, and the insurance only by insurer seal, no applicant signature confirmation, it is facing the problem of how to prove the insurer to fulfill the "insurance law" stipulates that the eighteenth "clear" obligations, if there is no corresponding evidence, "special agreement" about reduced or exempted from liability cannot get legal support.

Case six

In November 4, 2002, Liao Changsheng bought a taxi, affiliated to Changan Automobile Co. Affiliation contract agreed to by the affiliated Changan Automobile Co to insurance company for loss of vehicle insurance, third party liability insurance and other relevant insurance coverage, insurance fee undertaken by Liao Changsheng, Liao Changsheng to the company to pay the monthly service fee 100 yuan. In November 19, 2003, the Changan Automobile Co to the People's Insurance Company of China Ji'an branch renewal related insurance of the car. The insurance contract the driver take full responsibility in the accident of the franchise for 20%, bear the main responsibility exempts the odds of 15%; after insurance accident happens, the insurance people except in accordance with the "road traffic accident treatment measures" provisions of the scope of compensation, items and standards and the contract, within the limit of liability compensation, also after negotiation, agreed: "I agree in the insurance year, every accident based on the provisions of the franchise in 30%". In August 1, 2004, Liao Changsheng has the traffic accident, identified by the traffic police department chief Liao Changsheng negative accident responsibility. Liao Changsheng as the owner of the compensation after the accident costs 84100 yuan, the contract of insurance claims to Ji'an branch of People's Insurance Company of China, but the insurance company is of the view that the contract terms should be increased odds only 30%, compensation for the cost of 55%, that is 44000 yuan. Dispute between the two sides, Liao Changsheng appealed to the court.
Litigation
  The court concluded that, in this case the plaintiff Liao Changsheng as the insured, the special provisions of the contract was not signed, the insurance company does not provide evidence to prove that it has in other ways to the insured stated. According to the law, the insurance contract, the insurer and the applicant, the insured or the beneficiary of a dispute, should be favorable to the insured and beneficiary explanation. Therefore, the court considered the Special Agreement invalid format terms.
 Ji'an province Jiangxi City Qingyuan District People's Court of First Instance judgement of Liao Changsheng and the People's Insurance Company of China Ji'an branch special stipulation in the contract increases form clause 30% franchise is invalid, the defendant should be 85% odds compensation Liao longevity insurance 71400 yuan.
Comment
 This is the crux of the problem, the court concluded that, in this case the plaintiff Liao Changsheng as the insured, the special provisions of the contract was not signed, the insurance company does not provide evidence to prove that it has in other ways to the insured stated. According to the "insurance law" in article eighteenth, this clause shall not be binding, therefore, the court considered the Special Agreement invalid format clauses, insurance companies lose.

Rev  Show

1The insurer set similar to the "clause" or "special agreement" content to reduce or waive their own responsibility in the insurance contract, first of all to the related terms are defined, to increase maneuverability and reduce the insured and the possible dispute. (1) if the company accounts date the responsibility of insurance from insurance, such as insurance premium payment period and the period of insurance, accident insurance before the deadline in, whether the company will bear the responsibility? Such as insurance contract for a period of 06 years in January 1st, insurance contributions from 06 years in February 1st, accidents occur in the 07 in January, the insurance companies will bear the responsibility? specifically agreed to surrender to deduction of 30% handling fee. special agreement (1) theThe first beneficiaryFor the Nanjing branch of Construction Bank Chinese. (2) the policy in 4 years withoutSurrenderSurrender, if within 4 years, short-term premium calculated according to 4 years. (3) the insurance standard rate of 0.094%, a paid premium discount rate 14.89%, such as the early surrender preferential exemption and deduction, 10% penalty.

2For the "special agreement" content, perform strictly in accordance with the law clear obligations, the provisions of the insured have effect, the insured may be affected by the provisions of. Such as the occurrence of unilateral accident must preserve the site, and inform our survey, or no compensation

3Lead in the contract "to the insured have legally binding special agreement" clause is mainly caused by improper behavior not the insurance company business development personnel in the course of the exhibition industry. Including exhibition industry personnel failed to prompt the insured note insurance in the special agreement content in process industry, or suggest that the insured pay attention but not in accordance with the legal requirements for special agreement content to the insured make clear in two cases. As a special agreement: receive the policy and terms immediately after checking, such as no doubt are deemed to the entire substance of the contract. Whether on behalf of the applicant for insurance contract approval?

 

Ten, insurance, insurance contract is unknown

1,Insurance and the insurance policy is inconsistent

(1) the form without special agreement and insurance policy, a special agreement

(2) on the duration of insurance, insurance amount insurance and insurance inconsistent

As stated in the insurance insurance period is August 8, 2005 ---2006 year in August 7th, but the policy that the insurance period is August 9, 2005 -2006 year in August 8th, the insurance accident occurred in August 8, 2005, China Insurance Company, filed a lawsuit by the insurer. And as a single insurance amount insurance was 3200000 yuan, insurance 32000000 Yuan or 320000 yuan.

(3) the principle and spirit of "contract law" still on the understanding and application of the insurance contract has the guidance function, generated controversy in terms of the insurance contract, shall be recognized according to the relevant provisions of the contract law, insurance law. Firstly, it shall be interpreted in accordance with the general understanding, according to insurance contract Related words, clauses, the purpose of the contract, the transaction practices and the principle of honesty and credit, determine the true meaning of the clause, and can be determined according to the following rules: agreed in writing and oral agreement is inconsistent, in a written agreement shall prevail; and insurance applicationforinsurance policy or other insurance certificate is not consistent, with the insurance policy or other insurance certificate shall prevail; the terms of format terms and non format is not consistent, non format should be used in terms of content of insurance contract; a record or time inconsistency, in accordance with the "endorsement" is better than "text", "after the notation" is better than "before the notation", "add comment" is better than "the inscription", "writing" is better than "print" rules of interpretation. According to general understanding there are still more than two kinds of understanding, should be favorable to the insured, the beneficiary of the interpretation, unfavorable interpretation principle shall be based on the general principles and basic methods of contract interpretation as the basis, and now part of the court as long as the two parties of the contract on the terms have different understanding, it will be favorable to the insured, the beneficiary explain, the insurance company that unfavorable explanation as a correction mechanism is not on the insurer's transcendental prejudice, should also not be the insured or the beneficiary for unjust enrichment tool

 

The legal problems in the course of doing business eleven, agency

In concluding an insurance contract, the insurance agent 1

Here, the two most in need of attention is the responsibility of the insurance company and the insurance agent to the insurance agent behavior of the apparent agency behavior. According to the insurance law, the insurance agent according to the insurer authorized to transact insurance business on behalf of the act, the insurer liability. Insurance agent on behalf of the insurer of insurance business, oversteps the authority delegated, the insured has reason to believe that his power of agency, and has signed the insurance contract, the insurer shall undertake the insurance liability shall be investigated according to law; however, the insurer may override the responsibility of the insurance agent.

Has no power of agency, beyond the power of attorney or agent after the termination of the right to the provisions of the 1 paragraph of Article 66 of the act of the general principles of the civil law, and only after ratification by the principal, the agent shall bear civil responsibility of talent. Without the ratification of the behavior, the behavior person shall bear civil liability. I know a civil act is being executed in his name but not to deny that, as agreed to the. Contract law stipulates that the 48 actor who has no power of agency, beyond the power of attorney or agent after the termination of the right to be an agent name the contract, without the ratification of the agent, the principal shall not take effect, by the behavior responsibility. The other party may demand that the agent to ratify the contract within one month. Where the principal does not respond, regarded as a refusal of ratification. Prior to ratification of the contract, good faith is entitled to cancel the contract. The withdrawal shall be made in the form of a notice.

Some people think that, for the applicant to fill in the proposal and the signature is doing or agency should be a concrete analysis of concrete conditions. Such as the generation of the applicant to fill in the application form and sign, the insurant or the insured person present; taking into account the presence, and for the protection of the interests of the insured, it should be that the signature itself as a fact behavior, doing not belonging to the agent, the insurance contract in force. We think, can fill in, but can't substitute signature

2Risk, regulation

(1) the problem agency agency qualification

(2) the premium discount problem

(3) the agency fee problem

3, legal risk

(1) concurrent business insurance agent is the agent and the generation of insured for insurance procedures, at the same time, part cooperation agreement also provides for concurrent business insurance agent has some claim rights. This causes the agent a who act as multiple roles, there's still the agent, moral risk and legal risk. Therefore, branches around the country have generated a lot of insurance fraud case, especially the car loan, mortgage guarantee insurance business.

(2) cooperation agreement, the lack of agent behavior norms, regulations, lack of agent behavior legal liability clauses violations.

(3) the insurance company must strengthen the documents management agent training and company. Shall notify the applicant in writing in time after the insurance company agent. Otherwise, if the agent continued renewal fees, insurance activities in the name of the insurer, will form the agency by estoppel, by insurance companies to bear the consequences.

 

 

                                            Nanjing Lu Xinfeng.Lxflawyer001@126.com)