Zhejiang Province Higher People's court with the spirit of the new insurance law issued guidance on trying disputes of contract of property insurance

   In the new "insurance law" on the eve of its enforcement, relevant content of Zhejiang Provincial Higher People's court with law, promulgated "on Several Issues concerning the trial of cases of disputes of contract of property insurance directive opinion" (referred to as "guidance"), issued by the people's courts at all levels, to carry out. It is understood, "guidance" is the new "insurance law" since, the court system is first formulated by the provincial court of normative documents, the relevant judicial interpretations of the Supreme People's court's work has certain influence.
Zhejiang Province Higher People's court started the "investigation and document guidance" in April of this year the drafting work. Subsequently, CIRC Zhejiang Bureau, Zhejiang University Guanghua law school, Jinhua city and Ningbo City Intermediate People's court were drafted the "guidance" proposed draft. In June, the Zhejiang Provincial Higher People's Court on the proposal were pooled, formed the draft, and held a forum to listen to part of the court, insurance regulators, lawyers association, the experts, the insurance industry association of ideas, the participants were fully discussion on the draft, but controversial provisions of part. After the meeting, the Zhejiang Provincial Higher People's court to revise argumentation on the draft. In September 8th, "guiding opinions" issued by the official.
"Guiding opinions" full text of a total of 33, involving 9 aspects, covering the most hot problems present insurance contract in judicial practice, which is of benefit to the relevant judicial standard the court. One is about the establishment of property insurance contract and the entry into force of the insurance application, submit, to pay the insurance premium and the contract establishment and effect relationship has made specific provisions. Two is about the insurant inform obligation, specifically ask the way and the evidence requirements, provisions of the insurance agent to fill in this book, certificate of insurance and the insured signature confirmation, to fill in the content should be expressed as the insured, insurer. Three is a clear obligations on the exemption clause and the insurer, clear evidence, the provisions of the insurance people create a separate printing "exemption clause clear instructions", and by the applicant signature confirmation, should normally be identified the insurer has to fulfill the specific explanation obligation, and lists the reduce clear obligations. Four is about the insurable interest, property insurance interest should have legal, identified and measured by the monetary three conditions, the subject matter of the insurance is not legitimate, not of course cause insurance interests are not legitimate, specific performance and lists of insurable interest. Five is about the cognizance of insurance claims and liabilities, make clear provisions on the transfer of property insurance contract, insurance contract beneficiary in the subject after the insurance without correction processing, and make provision for the influence of the principle of proximate cause, the court decision of the insured and the third person infringement for liability insurance claims. Six is to the right of insurance subrogation, the insurance accident caused by the rules for the third party infringement, the insured shall have the right to choose to the infringer claims or requiring insurers to perform insurance liability. Seven is about the problem of double insurance, the insured shall the same subject-matter separately to the different insurance company insurance contracts, such as having different insurance interests, not of the double insurance, but one of the insurer shall bear the insurance liability, another insurer's liability to destroy. The eight is to explain the problem about the insurance contract provisions, terms should be interpreted in accordance with the professional significance. The nine is on the scope of application guidance problem, asking the court to different civil and commercial trial division respectively, hear civil disputes and commercial insurance disputes interwoven cases, should unify law application standard.
Zhejiang Insurance Regulatory Bureau received provincial CC "guidance", attaches great importance to organize personnel to conduct research, one by one, and promptly forwarded to their insurance institutions, asked all units to earnestly study, according to the new "insurance law" and the "guiding opinions" requirements, conscientiously do a good job of related work of cohesion, new problems appearing in the litigation with the courts at all levels, to strengthen communication, and actively create a legal environment conducive to the healthy development of the insurance industry.

Attached: "guiding opinions of the higher people's Court of Zhejiang on Several Issues concerning the trial of cases of disputes over the contract of property insurance"

　　Circular of the Zhejiang Provincial Higher People's Court on the "guidance" on Several Issues concerning the trial of cases of property insurance contract
　　　　                                      ZG (2009) No. 296
The people's courts at all levels:
The "Zhejiang Province Higher People's court" guiding opinions on Several Issues concerning the trial of cases of disputes over the contract of property insurance issued to you, please carry out seriously implement. Face new situations, new problems in practice, please timely report in our hospital two people court.

Two OO nine years in September 8th
　　
In order to correctly judge the property insurance contract dispute case, unification of criteria of judgment, according to "the people's Republic of China Insurance Law", "contract law of PRC" and the relevant laws and regulations, combined with our province property insurance contract disputes judicial practice, formulated the guiding opinions.
The establishment of a property insurance contract in force, and
The first proposal of property insurance, the insurer agrees to accept insurance, property insurance contract. The insurer is not issued by the insurance policy or other insurance certificate, but has accepted the proposal and collect the insurance fee, should normally be identified the two sides set up a property insurance contract relationship, but the insured and the insurer otherwise agreed with the exception of.
Article second property insurance contract with the insured delivery insurance premium as the entry into force of the contract, the insured has been delivered but not paid part of the premium, the contract shall be deemed effective, the insurer according to pay insurance premium and should pay insurance premiums ratio assume insurance responsibility. But the insurer before the accident has written notice of termination of the contract unless the applicant.
Article third the insured have not paid the premium as agreed in the contract, nor for the insured in the insurance fee consequences agreed, when the insurance accident happens, the insurer can not be insured in the insurance fee is exempt from the obligation of insurance liability.
Article fourth of property insurance contract, the insurance liability from the date of payment of insurance premium, and the insured have not paid insurance, the insurer to the insured fails to pay the premium on the grounds that it does not assume insurance responsibility, shall support.
Two, the insured's duty of disclosure
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 insurance law the provisions of article sixteenth of the insured shall truthfully inform the facts should be insurance mark important facts, mainly refers to affect the insurer to decide whether or not to agree to accept the insurance or to raise the insurance premium and other facts. The insurer should bear the burden of proof.
Article seventh the insured due to gross negligence, fails to perform the duty of disclosure content is not the main reason of insurance accident, does not have the decisive link to the insurer of insurance liability, the insurer to the insured shall truthfully inform obligation to refuse to assume insurance responsibility, not support.
The eighth intervention on the insurance agent, the insured 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. In the policy holders to personally answer the question situation, such as insurance agent on the content of unknown problems in his own interpretation or to determine, or doubt about the insured arising in reply automatically be ruled out, then the insured exempt.
An insurance agent to fill in this book, certificate of insurance and the insured signature confirmation, to fill in the content as the insured, the insurer is that meaning, but can prove that except for agents to mislead policyholders.
The following ninth insured ask the insurer does not answer, should not be considered as a violation of the duty of disclosure:
(a) for the insurance people known;
(two) according to common sense an insurer known;
(three) the insurer statement does not need to be told.
Three, the exemption clause and the insurer explanation obligation
Article tenth insurers, the insurance policy or other insurance certificate of exemption clause has significant signs (such as bold, increasing, different color), centralized separate printing on all disclaimers and explanation of the terms, and this with the "statement of the applicant", or with separate production "insurance one statement", the insured has confirmed the signing of the concept, and also said to the exemption clauses and its legal consequences are already clear, can generally be identified the insurer has to fulfill the specific explanation obligation, unless the insured, the insured can provide sufficient evidence.
Problem distribution rules of burden of proof relates to whether the insurer obligation to inform the dispute, can be applied to the Supreme People's court "on certain issues concerning the application of people's Republic of China Contract Law > interpretation (two)" (France - [2009]5) provided for in the second paragraph sixth.
Article eleventh the following situations, the insurer explanation obligation may be appropriate to reduce but not exempt:
(a) the same insured for more than two times the same insurance contract;
(two) the exemption clause of serious violations of traffic regulations of motor vehicle insurance contract, such as driving without a license, drunk driving, accident etc..
Four, the insurance interest
Article twelfth the insured person has no insurable interest in the subject-matter insured, the insurance contract regardless of whether an insurer that lack of insurable interest, the court may sentence the insurance contract terms.
Article thirteenth property insurance interest should have legal, identified and measured by the monetary three conditions. The subject matter of the insurance is not legitimate, not of course cause insurance interests are not legitimate.
Property insurance interest can be divided into property vested interests, and based on the existing interests of the expectation interest, interest of responsibility three.
Property insurance on the existing interest means that the applicant or the insured to the insured enjoy benefits. Both the interests of not only ownership interests, including: (1) property owners of all of its property interests; (2) the mortgagee, pledge, lien of mortgage, pledge, lien property owned property interests (but other creditors of the debtor does not set mortgages, the pledge right, lien should not recognize insurance interest); (3) the legitimate possession of the property in its possession have interests; (4) property management on the management of property ownership interests.
Expect interest means that the applicant or the insured to the insured interest does not yet exist, but based on the existing rights of the expected future benefit. Looking forward to the interests must be achieved according to the contract according to the law or.
Liability interest is due to the insured in accordance with the law shall bear civil liability for compensation in the economic interests.
Article fourteenth under any of the following circumstances, when insurance accident happens, the insurer to the insured does not assume responsibility for insurance has no insurable interest in the subject-matter claim, not support:
(1) the insured insured subject-matter has real flaws, but in the event of accident insurance, which has a legitimate property;
(2) the subject matter insured at the time of the accident there is a real defect of the insured, but the actual possession of the subject matter of the insurance and economic benefits, and the insured has the insured does not violate the mandatory provisions of the law and public order and good customs.
Determination of five, insurance claims and liability
Contract beneficiary clause fifteenth the contract of property insurance, the insured and the beneficiary are not the same person, the insured fails to claim insurance claim right, the beneficiary may be the plaintiff to the insurance claim.
Transfer sixteenth of insurance mark, the insurer fails to notify the insurer in time, with the transfer of the insurance object is not timely notice, the insured and the assignee is different on the grounds that does not assume insurance responsibility, not support. But after the cession of insurance mark use nature to change, leading to the degree of risk insured increased significantly and the accident occurred insurance, the insurer shall not assume insurance responsibility.
Article seventeenth in installments to the car sales company to buy a car, before the car not paid in full, the registered owner for car sales, car sales company in their own name for insurance, accident insurance, insurance to the actual owners not insured refuses to assume insurance responsibility, not support. But the sales company to the actual owners that it has the actual payment of premium.
Eighteenth 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 nineteenth the insured are claims related certificate " insurer making liability end" column signature, but the insurer did not completely fulfill the liability of compensation, the insurer of liability should not be considered the end, the insured to the insurer that part of the difference between the insurance liability, it shall be supported.
The insurer has sufficient evidence to prove that the other has to be insured that the scope of compensation, standard, method, such as the amount of the basic facts, the insured expressly agreed to end compensation, liability insurance end of man.
Article twentieth in liability insurance, the amount of compensation between the insured and the third party has been determined by the court, the insured hereby request underwriter assume insurance responsibility, in the range of insurance contract agreement, can be supported. Mediation between the insured and taken as third, the court to issue civil mediation, in the case of subsequent property insurance contract dispute case, the court according to the necessary examination of the relevant facts.
Liability insurance of the insured by effective civil judgment and has performed to third documents require insurers to the responsibility of insurance, the insured can not be issued expense tickets or other compensation vouchers.
Article twenty-first tractors, trailers were insured motor vehicle third party liability insurance, vehicle or the trailer caused the accident insurance, the insured claims by the tractor and Trailer Insurance amount require insurers to assume insurance responsibility, shall support.
Article twenty-second the automobile insurance, because it causes the vehicle's real owner and the insured, the insured phase separation, the actual vehicle all people by the court or traffic accident treatment authorities identified as the obligation of reparation in a tort case, actual vehicle all people request the insurer assume insurance responsibility, shall be.
Article twenty-third the insured and the insurer expressly agreed to the insured value, and specified in the insurance contract, as a fixed value insurance. The value of insurance insurance actual value and the agreed standard people knowing that insurance does not match, 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 determine the insured and the insurer malicious collusion except.
twenty-fourth property insurance in the under insurance contract insurance losses in excess of the insurance accident, the actual amount of insurance contract, franchise, such as franchise multiplied by the actual loss amount after still exceed the sum insured, the insurer shall be according to the insurance amount.
Six, the right of Insurance Subrogation
Article twenty-fifth for the third party tort cause insurance accident insurance mark loss, the insured may based on tort law, liability for third party to undertake insurance mark loss, can also be based on the relationship between the insurance contract, the insurer under the insurance liability for the performance of the insurance contract.
The insurer subrogation rights according to law, the insured has filed a lawsuit against the third party, such as identified as belonging to the repeated claim, should be rejected the claim according to law.
Article twenty-sixth the reinsurer to cause accident insurance third party does not enjoy the right of subrogation in insurance law, but the reinsurer of the exercise of the right of subrogation by the insurer has the right to get compensation according to the requirement of reinsurance proportion shall be returned.
Seven, repeated insurance
Twenty-seventh the applicant on the same subject matter insured separately to the different insurance company insurance contracts, such as having different insurance interests, not of the double insurance. But one of the insurer shall bear the insurance liability, the liability of the insurers to destroy.
Twenty-eighth repeat insurance policyholders will not repeat insurance matters to inform the insurer, the insurer has the right to terminate the contract. The insured require confirmation of insurance contract is invalid, does not support.
Eight, the insurance contract interpretation
Article twenty-ninth the terms of the contract of insurance dispute language belongs to the professional terms, should be interpreted in accordance with the professional significance.
Thirtieth to provide the insurance contract format terms of insurance contract dispute, should use words, the relevant provisions of the literal, the insured's reasonable expectation, the purpose of the contract, the transaction practices and the principle of good faith, the true meaning of that clause; in accordance with the above method still has more than two kinds of interpretation, shall be made not to the insurer's explanation.
The special clause of insurance contract party individual insurance contract through consultation, the insurer shall not apply "unfavorable interpretation principle".
Article thirty-first the insurance contract format terms not inconsistent with the terms of format, with non format clauses shall prevail; Express (special) terms and implied (general) terms are inconsistent, to express (special) shall prevail.
Article thirty-second of insurance and the insurance policy or other insurance certificate records inconsistent, the insurer has the insurance policy or other insurance certificate delivered to the insured, the insured did not raise any objections, in the insurance policy or other insurance certificate contents of the subject; the insurer before the insurance policy or other insurance certificate delivered to the insured, or the insured person has objection received in the insurance policy or other insurance certificate, insurance still agrees to insure, to policyholders fill in the policy record content.
Nine, annex
Article thirty-third the guiding opinion for the commercial trial judge in the trial of cases related to property insurance contract dispute applicable. Laws, regulations and judicial interpretations have new regulations, provisions of applicable laws, regulations and judicial interpretations.
Disputes over contract of marine insurance and foreign insurance contract dispute cases, does not apply to this guidance.
According to the "Zhejiang Provincial Higher People's Court on Civil and commercial cases under the jurisdiction of the division of opinion" (ZG [2008]64) and "the Zhejiang Provincial Higher People's Court of the court case name grant provisions" (ZG [2008]378) regulations, people dispute, contract of insurance of motor vehicle traffic accident liability compulsory dispute case insurance contract is not a commercial cases, people dispute, contract of insurance of motor vehicle traffic accident liability compulsory insurance contract dispute case beyond other insurance contract dispute case of commercial disputes, Li Shang character case number.
The relevant intermediate people's court and the grassroots people's court will not belong to the people commercial cases disputes, contract of insurance of motor vehicle traffic accident liability compulsory insurance contract dispute case heard by a commercial trial service court, such cases still civil case no..
The civil dispute and commercial insurance disputes interwoven cases, according to the "Zhejiang Provincial Higher People's Court on Civil and commercial cases under the jurisdiction of the division of opinion" (ZG [2008]64) line fourth part of the "rules" of civil and commercial cases under the jurisdiction of the divergence of views on the principles specified by the head of the case and.
Different civil and commercial trial division respectively, hear civil disputes and commercial insurance disputes interwoven cases, should strengthen the legal issues of communication, unify law application standard.