The Henan Provincial Higher People's court

On Several Issues concerning the trial of cases of disputes over insurance contract

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(Draft)

 

In order to correctly judge the insurance contract disputes, the parties of insurance contract to protect the legitimate rights and interests of the parties in accordance with the law, and promote the prosperity and development of insurance market, according to "people's Republic of China Contract Law of the people's Republic of China", "insurance law" and relevant laws, regulations and judicial interpretation provisions, combined with our province insurance contract disputes judicial practice, the enactment of this opinion.

The establishment of a contract of insurance, the entry into force of the

Article 1 In addition to the entry into force of the conditions of the contract provides otherwise, the insurer agrees to accept the proposal and the contents of the contract and the insured agree, the insurance contract shall be established and effective. The insured an insurance policy or other written certificate of insurance, the insurance contract content is only written form, the contract of insurance or elements is not effective.

Article second  The insurer has not yet issued policy or other insurance certificate, but has an insurance policy or charge, the insured that the insurance contract, the people's court should be supported. But the person insurance contract insurance people need to wait for the results of physical examination or otherwise specified in the contract.

Article third  The commencement of the insurance liability insurance contract and insurance contract in force time inconsistent, insurance liability begins earlier than the time of entry into force of the contract, the contract time, the insurance liability over time will be extended accordingly. Insurance liability begins later in the entry into force of the contract time, start with insurance liability is the time.

The duty of disclosure question two of the insured

Article fourth  Insurance law the provisions of article sixteenth of the insured shall truthfully inform the facts should be insurance mark important facts, mainly refers to the influence of the insurer to decide whether or not to approve the insurance or to raise the insurance premium and other facts, and limited to matters insured ask, matters for the insurers do not ask, do not bear the obligation to truthfully inform the insured.

Article fifth  The applicant asks the content is not limited to the inquiry contents insurance sets in the proposal, but the insurer shall bear the burden of proof about to ask the content setting matters existence form outside.

Article Sixth  The insured due to gross negligence, failure is not a causal relationship between the occurrence of the duty of disclosure content and insurance accident, does not have the decisive factors for the insurer assume insurance responsibility, insurance to the insured shall truthfully inform obligation to refuse to undertake the insurance liability, the people's court shall not support.

Article seventh  Agent insurance matters of the insurance agents, insurance in conclude when insurance contract in violation of the duty of disclosure of the liability can be eliminated or weakened by the agent affects the behavior of the. An insurance agent to fill after the insured signature confirmation, to fill in the content as the true meaning of the insured, but there is evidence that except insurance agent fraud, coercion and other circumstances.

Article eighthThe following matters insured ask the insurer does not answer, should not be regarded as violating the obligation to inform truthfully:

(a) for the insurance people known;

(two) according to common sense an insurer known.

Three, the insurer's tip and the specific explanation obligation problem

Article ninth  "Prompt and 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, also should be on the concept, the exemption clauses content and legal consequence, in written or oral form to the insured or their agents to explain, true meaning and legal consequences to the insured that the clause.

Article tenth  The insurer's tip and the specific explanation obligation is the object of the insured, the insured and the insured or the beneficiary is not the same, the insured or the beneficiary to claim the insurer fails to fulfil its prompt or the specific explanation obligation, the people's court shall not support.

Article eleventh  The insurer's explanation obligation to bear the burden of proof on the performance of tips and. Insurers, the insurance policy or other insurance certificate of exemption from liability insurance clauses marked (such as bold, increase or different colors etc.) or to the exemption from liability insurance clause and the contents of all printed alone, the insured has confirmed the signing represents the concept, to the exemption clauses and its legal consequence have clear, should normally be identified the insurer has performed the tips and the specific explanation obligation. But the insured has evidence to prove that the insurer is not practical except prompt or clear.

Article twelfth  "Exemption clause" contains a special term usually is not easy for people to understand, explain and illustrate the insurer by the concept, content and legal consequence, should reach usually people can understand the degree of.

Article thirteenth  The format of the terms of insurance to provide insurance contract, "exclusion", "exclusion" and other relevant franchise, franchise, part or all of the terms of exemption from liability insurance, the general should be identified as the exemption from liability of the insurer under the terms of section second of the insurance law of seventeenth "". Except in the contract of insurance related laws, administrative regulations stipulate the insurer does not assume insurance responsibility clause.

Article fourteenth  Motor vehicle third party liability compulsory insurance in tips and explicitly stipulated in the previous ninth to thirteenth shall not apply to obligations.

Four, the insurance interest

Article fifteenth  Personal insurance contract, the insurant has insurable interest, but the insurance interests do not have insurance when the accident occurred, the insurer in order on the grounds that the insurance contract is invalid, the people's court shall not support.

Article sixteenthProperty insurance interest should have legal, identified and measured by the monetary three conditions. Property insurance contract, the insured is under any of the following circumstances shall be deemed it has insurable interest:

(1) the insured enjoy rights;

(2) the subject matter of the insurance claim;

(3) the subject matter of the insurance, it shall bear civil liability;

(4) the subject matter of the insurance and enjoy other rights.

Article seventeenth  Property insurance, all non insured loan, based on affiliation, warehousing contract is entitled to possess, use and other rights and the subject matter of the insurance of insurance, when insurance accident happens, the insurance shall be deemed to have insurable interest in the subject.

Five, the cognizance of insurance claims and liabilities

Article eighteenth  The insurer knows or ought to know the insurance value actual value of insurance subject matter and agreed the discrepancies, still according to the value of insurance contract insurance amount and premium charged, after insurance accident happens, the insurer shall compensate by the insurance value agreed, but can prove that the insured and the insurer malicious collusion except.

Article nineteenth  Multiple causes of accident insurance, including underwriting risk and non risk cover, the insured claims the insurer by underwriting risk of accident reason proportion or degree assume insurance responsibility, the people's court shall support. Such as insurance mark loss is caused by a variety of reasons, the insurer does not belong to the scope of insurance liability as to decline, should be based on the reason which continues to play a decisive role is effective within the scope of coverage for the standard to judge whether the insurer shall undertake the liability for compensation.

Article twentieth  Accident insurance liability insurance contract, the insured and the third party consultation compensation but without the written consent of the insurer, the insured should be determined in consultation with the amount that the insurance payment shall bear the insurance liability, the insurer would not approved, the people's Court on the insured's claim shall not be supported.

Article twenty-first  The contract of property insurance, the insurance after the accident, the insured against the infringer without acquiring the actual damages or compensation is insufficient, the insured can not obtain compensation claim to the insurer claims, the people's court shall support. But the insurer's liability is limited to the actual compensation insurer fails to obtain the amount or the amount of insurance.

Article twenty-secondAccording to the insurance law the twenty-third regulation, the insurer shall timely perform the payment obligation. Violation of the obligation, the two sides have agreed, the parties have not agreed, the insurer; apart from paying insurance, shall also pay the corresponding interest.

Article twenty-third  Dispute over compensation for personal injury verdict clear any motor vehicle third party liability compulsory insurance for mental injury solatium, commercial insurance people no longer bear. The former litigation main judgment not clear cross strong insurance insurer solatium damages the spirit of a people's court trial, the insurance contract dispute case should ask whether the victims in traffic accidents, motor vehicle third party liability compulsory insurance scope includes the consolation money for the mental distress is determined by the. The selection shall be borne by the motor vehicle third party liability compulsory insurance of insurance, according to the provisions of the preceding paragraph. The choice is not a compulsory third party liability motor vehicle insurance compensation for mental injury solatium, commercial insurance contract clearly and mental solatium no compensation, insurance commercial insurance can not bear the spiritual solatium.

Six, the insurance contract interpretation

Article twenty-fourth The format of the terms of insurance to provide insurance contract, the insurer and the applicant, the insured or the beneficiary to the terms of the contract dispute, should the insurance contract terms, the relevant provisions of the literal, the purpose of the contract, the transaction practices and the principle of honesty and credit, determine the true meaning of the clause. According to the above method still has more than two kinds of explanation, the people's court shall be made in favor of the insurant, the insured or the beneficiary explanation.

Article twenty-fifth  Terminology is not applicable unfavorable explanation rule, but the term outside of the law or the interpretation of the surface meaning and signification differ, not on the difference be revealed will constitute a universal misleading to the insured, the insurer shall disclose the difference. The insurer is not on the above difference be revealed, the people's court shall apply "unfavorable interpretation principle", made to the insured, the insured, the beneficiary favourable explanation.

Article twenty-sixth  Format clauses mandatory insurance clause formulated by the insurance supervision and administration department does not belong to the insurance contract, the parties of the insurance contract dispute as to its content, the insurer shall not apply "unfavorable interpretation principle".

Article twenty-seventh  Insurers use or after use decided to change demonstration clause formulated by the insurance supervision and administration department, should be regarded as the insurer to set their own terms, with the terms of the format, in terms of the content of insurance contract party dispute and has exhausted all other interpretation principles, the insurer shall be applicable "adverse principles of interpretation".

Seven, the right of subrogation

Article twenty-eighth  The insurance contract of property insurance subrogation exercising scope, limited to the actual payment of insurance indemnity, the insurer shall not include due to compensate the insured insurance incurred expenses.

Article twenty-ninth  Insurance on the basis of the insurance contract, the compensation payable under the insured losses, the insured is not insurance compensation part of the exercise of claim third is better than that of the insurer's right of subrogation. But the contract of insurance or the claims process to reach an agreement except as otherwise agreed.

Article thirtieth  The insured intentionally or through gross negligence cause expiration of limitation, the insurer is unable to exercise the right to indemnity by subrogation, insurer deductible or return the corresponding insurance, the people's court shall support.

Eight, the program problem

Article thirty-first  After the occurrence of the insured event, the insured or the beneficiary fails to insurance claims filed a lawsuit to the people's Court of the people's court may inform the claims, the insurance for the people, but not to the insured or the beneficiary shall not be accepted for the prosecution on the grounds without settlement procedures. Conditions of the basic people's court may establish pretrial claims coordination mechanism in consultation with relevant departments, the insurance contract dispute coordination treatment.

Article thirty-second  After insurance accident happens, the insured person and get sued for patent infringement judgment to confirm the claims is not executed, the insured in the insurance contract, the insurer of the prosecution, the people's court shall accept the case.

Article thirty-third  The insurer exercising subrogation right, the insured has brought an action against the third party, the consent of the insured, the insurer may propose to change the party request to the court, subrogation insured indemnity against the third party rights.

Article thirty-fourth  The insured liability to the third part is determined, the insured do not perform the obligation of compensation, also does not request the insurer directly to third of compensation insurance, third by the insurer demand of direct compensation insurance, the people's court should be supported.

Article thirty-fifth  The 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 the insurer subrogation correspondingly suspension, interruption.

Article thirty-sixth Disputes of liability in traffic accident of motor vehicle, the insurance company will cover should be compulsory motor vehicle third party liability insurance as a defendant, based in the tort liability have been identified, can be directly ordered the insurer in liability compulsory insurance limits within the range of the obligee to compensation insurance gold to Fu Bao. The people's court shall notify the insured commercial insurance companies to participate in the litigation as third people, and on the basis of the tort liability, according to the relevant provisions of the insurance law and insurance contract, directly ordered the insurance company to claim the payment of the insurance benefits. The insurance company can also apply as third people to participate in the proceedings.

Nine, attached Then

Article thirty-seventh  The opinions shall be implemented as of the date of publication. A second case, after the implementation of the views have not yet concluded, the applicability of this opinion. The opinion which is the party applying retrial, retrial according to the procedure of judicial supervision or decision of the case, shall not apply to this opinion. The provisions of the past with the opinion inconsistent, not applicable. After the implementation of the views, the relevant laws, regulations and judicial interpretation are inconsistent with this opinion of the new regulations, the provisions of the relevant laws, regulations and judicial interpretation shall prevail.