Whether the insurer to the insured or the assignee fails to perform the obligation of notification refused to the responsibility of insurance in the insured vehicle after the transfer

Jiang Xianzheng

(2012Years7On 16Day)

[The case]2010Years10Month, Party A to3Million price from a unit to buy a car, the car by the registered owner in the insurance company for the compulsory insurance and commercial insurance. The original registration of car owners and insurance companies agreed to "the insured vehicle in the transfer, gift, the change of use should be written notice and approved procedures for insurance companies in the insurance contract". A purchase, and the registered owner did not inform the insurance companies and insurance approved procedures. In the insured vehicle after a traffic accident, the insurance company refused to claim. The Tao of a prosecution, the original registration car owners and insurance companies compensation for the cause of the loss of the accident16Million yuan.

[Sentence]In the court of the view, in accordance with the "insurance law" in article forty-ninth, the transfer of insurance shall notify the insurance company, the insurance company agreed to underwrite the insurance contract in accordance with the law, change. According to the registered owner and the insurance company contract, the insured vehicle at the time of the assignment shall notify the insurance company and handle the formalities. Therefore, the insurance company does not assume liability to pay compensation. The registered owner in the car to a post, dominate and control is not the car, did not benefit from the vehicle in the original registration, the owners do not assume liability to pay compensation. The loss of Tao because of the accident cause, by Party A shall bear the responsibility for compensation.

[Comment on]The case comes from the "people's court"2012Years6Month14Daily article3Edition published "not to buy second-hand car insurance accident themselves". A court in the original registered owner or Party A in the transfer of the insured vehicle not in accordance with the "insurance law" the provisions of article forty-ninth and the insurance contract shall notify the insurance company and approved procedures on the grounds, dismissed the Tao to the insurance company for. This decision put forward the following two legal issues.

First of all, is the transfer of insurance vehicle insurance contract main body whether to change?

The property insured will be the transfer of insurance mark to third, insurance contract is due to the transfer, the world insurance legislation mainly has two kinds of style: one to one, say, that insurance contract by both parties trust based, unless the Parties otherwise specified, insurance contract is not because of the subject matter of the insurance the transfer of. The two is taken from the physicalist says, that insurance contract on the transfer of the insurance object, should serve the interests of the transferee. This said that the provisions of the insurance interests with the transfer of the subject matter of insurance and the insurance contract shall continue to be effective transfer, the subject matter of the insurance of the transferee. Therefore some people will be second kinds of legislation as "insurance with the object", "not breaking the sale of insurance". From the "insurance law" forty-ninth "in the first paragraph of the transfer of the insurance object, insurance mark transferee from the right and obligation of insured." The provisions of the legislation on this issue that, our country insurance from the physicalist says. In accordance with the provisions,Property insurance contract, the insured after the cession of insurance mark, the corresponding insurance rights and obligations inherited from the assignee, the insurance contract shall continue to be effective, and not to inform the insurer for conditions. In other words, this clause from tend to protect the insurant or the insured the assignee's interests, clearly stipulates the ownership transfer of the insurance object between the parties, the insurance contract rights and obligations can automatically transfer, application and the parties of insurance contract can not be agreed through to exclude this clause.

Secondly, by what is legal consequences after the transfer of vehicle insurance the insured and the assignee without notice to the insurer?

In accordance with the "insurance law" forty-ninth "in the second paragraph of the transfer of the subject matter insured, the insured or the assignee shall timely notify the insurer, unless otherwise agreed transport insurance contract and the contract." Provisions, the insured or the assignee of the transfer of the subject matter of the insurance, shall perform the obligation of notification to the insurer. As for the duty of notification is compulsory, on one hand, from the terms stipulated in regulations allow parties to eliminate the obligation of notification, notification is not compulsory. On the other hand, from the obligation to inform the fourth paragraph of this article "the insured, the assignee fails to perform any of the second paragraph of this article, for the transfer of risk of the subject matter of the insurance increased significantly and the occurrence of an insured accident, the insurer shall bear no obligation for indemnity." Provisions, only when the degree of risk transfer of the subject matter of insurance the insurance object increased significantly, notify the meaningful. If the transfer standard insurance did not lead to dangerous levels significantly increased, even if does not perform the obligation of notification, it will not affect the assignee's interests. To sum up in a word, notice whether necessary, depending on the transfer of the subject matter of insurance is led to a significant increase in the risk degree. Visible, the insured or the transferee to fulfill the transfer of the subject matter of insurance obligation of notification to the insurance company, as the necessity of compulsory.

The transfer standard insurance lead to legal consequences of their risk increased significantly, in accordance with the "insurance law" article forty-ninth paragraph third "for the transfer of the insurance object leads to significant risk increase, the insurer within thirty days from receiving notice of the provisions of the preceding paragraph, in accordance with the contract, can increase the insurance premium or to terminate the contract. The insurer terminates the contract, it shall be collected in accordance with the contract of insurance, the insurance liability deduction since the date of the termination of the contract date receivable part, shall be returned to the applicant." Regulations.The main body of the insurance contract can not automatically change, then the insurer may decide whether to continue to perform the contract. The insurance people choose to continue to perform the contract, can negotiate additional insurance premiums; choose to terminate the contract, return the corresponding proportion of insurance premium. And in accordance with the provisions of the fourth paragraph of "insurance law" forty-ninth,If the transferee or who did not perform to the notification obligation of insurant, because the degree of risk transfer of the subject matter of insurance the insurance object increased significantly and the insurance accidents, the insurer shall bear no obligation for indemnity.

In this case, the original registration of car owners and insurance companies the legal obligation to notify the insured vehicle transfer to the obligations agreed upon in the insurance policy will be, but has not agreed to the original registration owners do not perform the obligation of notification, the insurance company does not assume insurance liability for the consequences of default. Accordingly, insurance company to the original registration of owners in the insured vehicle fails to perform the obligation of notification by the transfer of insurance liability exemption claim no contract basis. In accordance with the provisions of "insurance law" in article forty-ninth, only in the degree of risk transfer of the subject matter of insurance to insurance mark insurance accident occurs significantly increased under the condition, the insured or the assignee and fails to perform the obligation of notification, the insurance company would exempt for indemnity. The registered owner of the insured vehicle transfer to Party A, both sides did not transfer to the insurance company to fulfill the obligation of notification, unless there is evidence to prove that the transfer of insurance company insurance vehicle dangerous degree of the vehicle increases significantly and therefore insurance accident occurs, the exemption claims will be supported, otherwise, the insurance company shall undertake compensation responsibility in the case of insurance benefits. A court in not found "is the transfer of insurance of vehicles has resulted in the significant risk increase and the occurrence of the insured event" the facts to be proved the case, only to the registered owner and Party A fails to fulfill the obligation to inform the insurance vehicle has been transferred and insurance approved procedures on the grounds, liability insurance company does not assume insurance decision gold, is a misreading of the "insurance law" forty-ninth article.