【作者】 隋祎宁；

【导师】 徐卫东；

【作者基本信息】 吉林大学 ， 民商法学， 2007， 硕士

【摘要】 在订立以定额给付为原则的伤害保险合同时,由于投保人和保险人之间存在获取信息的偏差,很容易引发道德危险。日本在保险实务中,通过格式化条款的形式规定了伤害保险复保险合同告知义务。该义务使保险人能够预防恶意投保人通过制造保险事故等手段取得不正当保险金,其价值已在学说和判例中得到肯定。但同时该义务的设定也使保险人权利过大,容易损害到善意投保人的正当利益,因此应对保险人解除权行使的要件加以合理的、必要的限制。我国《保险法》中虽有关于复保险的规定,但对于复保险合同告知义务并未作明确说明。笔者认为可以结合我国保险业发展的实际情况,参考日本保险实务界的做法,在人身意外伤害保险合同的格式化条款中规定复保险合同告知义务,作为对《保险法》原则性规定的补充。更多还原

【Abstract】 The informing obligation of the double insurance contract in Japan refers to the fact that the policy holders have the duty to inform that the insurant has been covered with the same or other insurance subjects, before the insurance contracts are concluded. If the policy holder refuses to carry out the obligation balefully or fails to due to great negligence, the insurer has the right of contract rescission. This obligation is not a legal one but prescribed by the format clauses in contracts. The insurance in Japan falls into three categories: life insurance, non-life insurance, and accident insurance,“the third realm”that is relative to but a bit different in nature from the life insurance. As there is no insurance interest in life insurance, the life insurance companies don’t require policy holders to do their duty to inform the existence of the double insurance contracts. Therefore, such obligation is only prescribed in non-life insurance and accident insurance contracts. With the development of the economy and society, the increasing number of accidents has resulted in an upward trend in disputes about accident insurance. And the three big characteristics of accident insurance, extraneousness, urgency, and chanciness, determine a big possibility of double insurance. Thereby the informing obligation of double insurance contract in accident insurance appears especially important. In recent years, the emergence of many prejudications in Japan has become one of the issues of common concern among scholars and insurance circles, even though they haven’t been adjudicated by the highest judicatory.To sum up the theories and prejudications about the informing obligation of double insurance contracts, the views can be reduced to two opposite ones. One is that this obligation can help the insurers avoid the moral danger caused by double insurance and prevent the baleful policy holders from defrauding of insurance premium. The other view is that the responsibility the policy holders should assume is much larger than the loss the insurers have suffered, if the policy holders disobey the informing obligation, and the right of rescission of insurers shall be restricted if necessary on account of the rigid limit on policy holders’responsibility. The essence of the controversies lies in how to coordinate the goodwill policy holder that has got no malfeasant premium and the insurer faced with the request for malfeasant premium, and how to pay the prior protection.The informing obligation of the double insurance contracts is not the legal one in Japanese Code of Mercantile Law but prescribed in the contract clauses of accident insurance. The value of this obligation consists in that there are more and more cases in which policy holders ask for wrong premium by deliberately fabricating insurance accidents. The premium in accident insurance contracts are mostly defrayed in the form of ration payment and the premium paid not always limit to the range of the actual damage amount, so there is a big possibility of the request for the wrong premium. That means the moral dangers exist to a greater extent. Furthermore, it is difficult to investigate beforehand and attest afterwards policy holders’malevolent doings mentioned above, and hereby it is not sufficient for the insurers to take measures only after the insurance accidents. They shall take precautions before the insurance contracts are concluded to handle the malfeasant request and the moral danger caused by it. And the existence of the double insurance contracts forms an important basis for the judgment whether there is moral danger before the contracts are concluded. Recent years, among the prejudications of accident insurance, the effectiveness of the informing obligation have been mostly affirmed from the angle of prevention of moral danger. Moreover, in order to keep the insurers from abusing the right of rescission and infringing the interests of the policy holders and insurants, the right of rescission shall be restrictedly explained by analyzing the legal relationship between it and the informing obligation, and economic purpose of the informing obligation of the double insurance contracts.In double insurance contracts, the infringing of informing obligation shall accord with three prerequisites below: first, the matters informed must be known to the policy holders and shall be the concluded accident insurance contracts about the insurants. Meanwhile the matters informed should be very important facts. There exist two opposite opinion as to whether the facts of moral danger should be incorporated in the matters informed. Second, whether the insurants have the request for the wrong premium should be taken into account. Finally, the subjective prerequisite is that the informing obligor subjectively refuses to inform on purpose or fails to out of great negligence, and has foreseen the serious aftereffects or hasn’t because of negligence.After the policy holders go against the informing obligation of the double insurance contracts, the insurers can exert the right of rescission in accordance with the contract clauses and needn’t assume the responsibility of defraying the insurance premium. But if there appears the exception to the exertion of right of rescission, insurers can’t rescind the contracts claiming that the obligor disobey the obligation.Furthermore, there exists the principle that informing obligation of double insurance contracts has no cause and effect relation with the insurance accidents. That is even though the policy holder or insurant can testify that there is no cause and effect relation between uninformed double insurance contract and the insurance accident, the insurer needn’t assume the obligation to pay the insurance premium. As under usual circumstances, the existence of double insurance contracts has no cause and effect relation with the occurrence of insurance accidents. The principle used here, the double insurance contract will lose its practical function.The double insurance has been defined by the 41st provision in The Insurance Law of our country, but the provision is too simple, and there is no clear and definite explanation about the informing obligation of double insurance contracts. According to the writer’s view, the definitions in The Insurance Law are mostly prescribed in principle, while the concrete right and obligation involved in the insurance dealings shall be prescribed by insurance contract clauses within the limits permitted by law, because the insurance contract is the agreement that reflects the legal relation between the policy holder and the insurer, and the direct operating means of various insurance system. Thereafter, referring to the practice in Japanese insurance circles, we can prescribe the informing obligation in contract clauses as a supplement to the definition in The Insurance Law. In this way, not only the legislation purpose of 41st provision has been incarnated, but also the insurer and policy holder are provided with the decision-making power. In addition, judicature shall bring its function into play as to how to balance the interests of every party of contracts. The court shall judge the rationality of prescription in contract clauses, comprehensiveness of the explanation, and the accuracy of the application, when the disputes about insurance arise. In conclusion, accurate application of informing obligation of double insurance contracts will make the insurance market in our country grow and flourish more and more prosperously, and make it possible that maximization of the interests of the insured masses and the operators of insurance companies come true.更多还原