中日保险告知义务之比较及借鉴
发布时间：2018-09-12 20:35
【摘要】：告知义务衍生于保险法中的最大诚信原则,是保险法上一项古老而重要的制度,在保险法上有着极为重要的地位。告知义务问题历来受到较多的关注,众多学者对其进行研究和探讨,是保险法制进程中的一项重要课题。另外,在实践中,保险作为保障和投资的手段进入越来越多的家庭,随之而来的保险纠纷也逐年递增。其中,“如实告知”渐渐成为纠纷的焦点。基于以上背景,本文借中、日两国相继修改保险法这一契机,从历史比较法的角度,研究、探讨两国保险法上的告知义务制度。笔者围绕两国保险告知义务的历史沿革,基于保险告知义务的基本理论,对告知义务的主体、告知义务的履行及其法律后果逐一进行了细致的对比分析。 本文分为五章。首章主要对告知义务研究的源起、告知义务研究的意义、告知义务的研究方法进行分析,以求对下文更加深入地研究告知义务作铺垫。第二章主要针对保险告知义务制度的基本范畴进行阐述。具体对告知义务的基本含义、告知义务的法律性质、告知义务的产生依据进行梳理,以期呈现一个全面的告知义务制度。第三章则是运用历史比较研究方法中的纵向比较对中、日两国保险告知义务的立法完善进行梳理,将两国不同时期的告知义务制度进行对比。第四章运用历史比较研究方法中的横向比较对告知义务的主体、告知时间、告知方式、告知范围、违反告知义务的主客观要件及解除权和阻却事由等方面,逐一进行研究、探讨。为第五章中我国保险告知义务制度的修改及完善建议的提出做准备。第五章在总结前文的基础上,用图表梳理中、日告知义务的比较结果,然后以此为基础对我国保险告知义务的构建提出建议。主要包括告知义务主体的扩充、询问方式的限定、履行期限的清晰化、违反告知义务主观要件的完善、不可抗辩期间的适当延长、禁止反言条款的增加、合同解除权发生时间的明确。本文研究目的在于,通过历史比较研究法进行研究、归纳,以求对我国保险告知义务立法有所裨益,促进我国保险行业健康发展。
[Abstract]:The principle of maximum good faith derived from the law of insurance is an old and important system in the law of insurance and plays an extremely important role in the law of insurance. The obligation of informing has always been paid more attention to, and many scholars have studied and discussed it, which is an important subject in the process of insurance legal system. In addition, in practice, insurance as a means of security and investment into more and more families, followed by insurance disputes are increasing year by year. Among them, "truthful inform" gradually become the focus of the dispute. Based on the above background, this paper takes the opportunity of amending the insurance law one after another between China and Japan, from the perspective of historical comparative law, studies and discusses the system of informing obligation in the insurance law of the two countries. Based on the basic theory of insurance disclosure obligation, the author makes a detailed comparative analysis of the subject, the performance and the legal consequences of the obligation of notification in accordance with the history of the two countries' insurance obligation of notification. This paper is divided into five chapters. The first chapter mainly analyzes the origin of the study of the obligation of disclosure, the significance of the study of the obligation of notification, and the research methods of the obligation of disclosure, in order to pave the way for a more in-depth study of the obligation of notification. The second chapter mainly focuses on the basic categories of insurance disclosure obligation system. The basic meaning of the obligation of notification, the legal nature of the obligation of notification, and the basis for the formation of the obligation of notification are combed in order to present a comprehensive system of the obligation to inform. The third chapter is the use of the historical comparative study method of vertical comparison of China and Japan to improve the legislation of the obligation to inform of the two countries in different periods of time to compare the system of notification. The fourth chapter studies the subject, time, mode, scope of disclosure, subjective and objective elements of breach of obligation of notification, lifting right and reason of obstruction, etc., by using the horizontal comparison of historical comparative research method. Discussion. In the fifth chapter, we prepare for the modification and improvement of our country's insurance disclosure obligation system. On the basis of summarizing the above, the fifth chapter combs the comparison results of the day's notification obligation with the chart, and then puts forward some suggestions on the construction of our country's insurance informing obligation on the basis of it. It mainly includes the expansion of the subject of the obligation of notification, the limitation of the mode of inquiry, the clarity of the period of performance, the perfection of the subjective elements of the breach of the obligation of notification, the proper extension of the period of non-defense, the increase of the clause of estoppel, Clear time of termination of contract. The purpose of this paper is to study and sum up the law of historical comparison in order to benefit the legislation of the obligation to inform insurance in China and to promote the healthy development of insurance industry in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.284;D931.3
本文编号：2240152
[Abstract]:The principle of maximum good faith derived from the law of insurance is an old and important system in the law of insurance and plays an extremely important role in the law of insurance. The obligation of informing has always been paid more attention to, and many scholars have studied and discussed it, which is an important subject in the process of insurance legal system. In addition, in practice, insurance as a means of security and investment into more and more families, followed by insurance disputes are increasing year by year. Among them, "truthful inform" gradually become the focus of the dispute. Based on the above background, this paper takes the opportunity of amending the insurance law one after another between China and Japan, from the perspective of historical comparative law, studies and discusses the system of informing obligation in the insurance law of the two countries. Based on the basic theory of insurance disclosure obligation, the author makes a detailed comparative analysis of the subject, the performance and the legal consequences of the obligation of notification in accordance with the history of the two countries' insurance obligation of notification. This paper is divided into five chapters. The first chapter mainly analyzes the origin of the study of the obligation of disclosure, the significance of the study of the obligation of notification, and the research methods of the obligation of disclosure, in order to pave the way for a more in-depth study of the obligation of notification. The second chapter mainly focuses on the basic categories of insurance disclosure obligation system. The basic meaning of the obligation of notification, the legal nature of the obligation of notification, and the basis for the formation of the obligation of notification are combed in order to present a comprehensive system of the obligation to inform. The third chapter is the use of the historical comparative study method of vertical comparison of China and Japan to improve the legislation of the obligation to inform of the two countries in different periods of time to compare the system of notification. The fourth chapter studies the subject, time, mode, scope of disclosure, subjective and objective elements of breach of obligation of notification, lifting right and reason of obstruction, etc., by using the horizontal comparison of historical comparative research method. Discussion. In the fifth chapter, we prepare for the modification and improvement of our country's insurance disclosure obligation system. On the basis of summarizing the above, the fifth chapter combs the comparison results of the day's notification obligation with the chart, and then puts forward some suggestions on the construction of our country's insurance informing obligation on the basis of it. It mainly includes the expansion of the subject of the obligation of notification, the limitation of the mode of inquiry, the clarity of the period of performance, the perfection of the subjective elements of the breach of the obligation of notification, the proper extension of the period of non-defense, the increase of the clause of estoppel, Clear time of termination of contract. The purpose of this paper is to study and sum up the law of historical comparison in order to benefit the legislation of the obligation to inform insurance in China and to promote the healthy development of insurance industry in our country.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.284;D931.3
【参考文献】
相关期刊论文 前2条
1 何亮亮;钮敏;;论保险告知义务的理论基础与制度架构——以保险双方的利益衡平为视角[J];西北农林科技大学学报(社会科学版);2009年02期
2 凌永芳;;保险最大诚信还应彰显公平价值——对保险法第十七条规定不足与完善的思考[J];保险职业学院学报;2009年01期
相关博士学位论文 前1条
1 王雪杉;保险法告知义务研究[D];吉林大学;2007年
相关硕士学位论文 前1条
1 拜村贤征;中、英、日保险告知义务问题研究[D];华东政法学院;2005年
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