保险合同格式条款在实践中的问题研究

发布时间：2018-05-05 05:00

本文选题：保险合同 + 格式条款　；参考：《广西师范大学》2013年硕士论文

【摘要】：保险业是经济生活的产物,伴随着经济生活的不断发展,保险业也有了长足的发展,格式条款在保险合同中的重要性也越来越强。与此同时,由格式条款引发的保险纠纷也随之而来。众所周知,保险业被称为“霸王行业”之一,而保险合同条款也被称为“霸王条款”。当前,格式条款在人们的社会生活中被越来越广泛的得以使用,可以说格式条款已深入我们社会生活的方方面面。格式条款在经济生活中的确起到了划时代的作用,但它却是一把双刃剑,其暴露出来的弊端显而易见,正像有学者所言,“利之所在亦弊之所在”。保险合同双方当事人存在着多方面的不平等,在经济实力、交易地位上悬殊很大,格式条款天生存在的缺陷如单方拟定性且保险专业用语具有特定的含义和延伸意义,投保人、被保险人难以理解,加之法律规制方面存在空白,以致保险合同格式条款存在着大量问题,许多的的实践案例就证明了这一点——保险公司凭借格式条款损害投保者合法利益的现象屡见不鲜,以下三个案例就是其中的典型代表。从这三个案例,我们可以很明显的看到格式条款在实务中存在的问题。第一部分介绍格式条款及保险合同格式条款的概念和特征以及保险合同条款格式化的动因和价值。第二部分本文结合三个案例对保险合同格式条款在实践中存在问题进行论述,这三个问题分别是说明义务问题、疑义利益解释原则问题和公平性合理性问题。第一节说明义务问题。《保险法》对一般保险合同条款和格式条款的要求是不一样的,前者是“说明”,而后者是“明确说明”,法律的严谨性要求其在措辞上都是非常注意的,慎而又慎,笔者认为,这其实透露了当时在制定该法条时,立法者的意思,也就是相对于一般保险合同条款,对于格式条款的要求更加的严谨。诚然,我国《合同法》和《保险法》这两部法律都规定了格式条款的说明义务。但是法律本身具有的滞后性、僵硬性等弊端,使得说明义务在实践中还是存在着一定的问题。如保险人应该以何种方式向相对人提示、提示达到何种程度为合理?等等存在一系列的题。第二节疑义利益解释原则问题。依据《合同法》的规定该原则的适用范围仅限于格式条款,但是依照《保险法》第三十一条的规定,不利解释原则对一切保险条款都适用,这显然扩大了不利解释原则的适用范围,并且适用不利解释原则是有条件限制的,不是在任何情况下都可以适用。第三节公平性合理性问题。具体问题主要表现在保险合同中格式条款的隐蔽性、保险人利用其垄断地位排除被保险人的权利、法条中对“不公平”“不合理”界定不够具体。从法律角度来说,很难区分“公平”和“不公平”,“合理”和“不合理”,法条中规定的最后一种情形中的“主要权利”不够明确、具体,也没有相关的司法解释出台,这也正是许多保险案例发生的原因之一第三部分对于保险合同格式条款,要根据马克思主义原理一分为二的看待问题,格式条款确实存在许多的优点,如节省交易成本、使交易更加的简便快捷,但也存在着弊端——不公平的问题,因此怎样对于格式条款进行有效规制,任务重大,责任艰巨,意义深远,是法学界亟待解决的问题之一。格式条款之所以被越来越普遍的得以使用,证明了其存在的合理性,因而世界上各个国家对保险合同格式条款的态度也并不是彻底的否决,而是对其中的不公平条款进行规制。一方面应认同保险合同格式条款的积极影响；另一方面,也应对其中的不公平条款进行有效的规范,给定其存在的合理空间范围,即否定其不良因素,确认其积极因素,以防止自由权利之滥用。笔者对保险合同格式条款的规制提了几点建议,分别从立法、执法、司法这三个方面。立法方面,笔者认为对于保险合同格式条款的立法规制可以从三个方面加强,首先,要解决当前法律条文之间的冲突,对于《合同法》第39条与40条之间有无实质意义上的冲突,各法学家存在异议。笔者认为,对《合同法》这两条规定并不矛盾,其所适用的情况存在差异,第39条的规定是针对格式条款的单方拟定性的特点,其所免除的责任并不是实际发生的,而是将来可能发生的,而第40条是针对免除已经实际发生的责任,是以保险人不合理的免除了他本应承担的责任为前提。其次,利用民间协定对保险合同格式条款进行规制,能够在一定程度上弥补这一法律漏洞的,值得我国借鉴,但是必须在政策法律上予以确认,才会使其有发展的可能性,因此可以作为我国合同法律制定时的一个重要议题。最后,借制定民法典的机会在其中单独列出一章对格式条款的规制进行专门规定。执法方面,借鉴西方国家的做法,独立出专门的机构或者委员会,处理在合同签订过程中存在的不合理格式条款；司法方面包括法院对保险合同中的格式条款的效力作出评判等方法,从而达到既保障交易效率,又保护交易安全的目的。第四部分,对于保险合同格式条款的社会监督方面,由于在现实生活中与格式条款接触最多的人群当数普通老百姓,因此他们能够最为真切的感受到格式条款在实践中存在的各种问题,同时,对于格式条款的监督既非常的愿意也具备这个能力。群众的监督是非常必要的,但也是相当有限的,这就需要保险行业协会、消费者协会发挥他们的力量。
[Abstract]:The insurance industry is the product of economic life. With the continuous development of economic life, the insurance industry has also developed rapidly. The importance of the form clause in the insurance contract is becoming stronger and stronger. At the same time, the insurance disputes caused by the form clauses are also followed. As we all know, the insurance industry is known as one of the "tyrannic industry", and the insurance contract is one of the insurance contracts. The terms are also called the "tyrant clause".
At present, format terms are more and more widely used in people's social life. It can be said that formatting clauses have penetrated all aspects of our social life. Formatting clauses have played an epoch-making role in economic life, but it is a double-edged sword, and its exposures are obvious, just as some scholars have said, " There are many inequities between the parties in the insurance contract. There are many aspects of inequality between the parties in the insurance contract, the great disparity in the economic strength and the position of the transaction. The defects such as the unilateral formulation and the insurance professional language have specific meaning and extension, the insured, the insured are difficult to understand, and the legal regulators There is a blank in the face, so there are a lot of problems in the form clause of insurance contract. Many practical cases prove this point - the phenomenon that the insurance company damages the legitimate interests of the insured by the form clause is common. The following three cases are typical representatives. From these three cases, we can see the format obviously. The problems existing in the terms of practice.
The first part introduces the concept and characteristics of standard clauses and standard clauses of insurance contracts, as well as the motivation and value of formatting clauses of insurance contracts.
In the second part, this paper discusses the existing problems in the practice of insurance contract format with three cases. The three questions are the problem of obligation, the problem of the explanation of the doubtful interests and the rationality of fairness.
The first section explains the issue of obligation. The insurance law is different from the requirements of the general insurance contract terms and the formatting terms. The former is a "explanation" and the latter is "clear". The law's rigor requires that it is very careful in wording, prudent and prudent. In fact, the author believes that this disclosed the legislation at that time when the law was formulated. The meaning of the person is even more strict than the general insurance contract clause. It is true that the two laws of the contract law and the insurance law all stipulate the description obligation of the formatted clauses. However, the law itself has the disadvantages of lagging, rigidity and so on, which makes the obligation in practice still exist in the practice. Questions such as the way in which the insurer should be prompted to the opposite party, the extent to which the hint is reasonable, and so on.
The second section of the principle of interpretation of doubtful interests. According to the provisions of the contract law, the scope of application of this principle is limited to the form clause, but in accordance with the provisions of the insurance law, the principle of adverse interpretation applies to all insurance clauses, which obviously expands the scope of application of the principle of unfavorable interpretation, and the principle of unfavorable interpretation is applicable. Conditional restrictions are not applicable in any case.
The third section is fair rationality. The specific problem is mainly manifested in the concealment of the form clause in the insurance contract. The insurer uses its monopoly to exclude the rights of the insured. In the law, the definition of "unfair" and "unreasonable" is not specific. From the legal point of view, it is difficult to distinguish "fair" and "unfair" and "reasonable" And "unreasonable", the "main rights" in the last situation stipulated in the article of law is not clear enough, specific, and there are no relevant judicial interpretations, which is one of the reasons for many cases of insurance.
The third part of the insurance contract format clauses should be divided into two aspects according to the principle of Marx doctrine. There are many advantages in the formatting clause, such as saving the transaction cost and making the transaction more convenient and quick, but there are also drawbacks - the unfair problem. Because how to regulate the form clause effectively, the task is heavy. Big, arduous responsibility and far-reaching significance is one of the urgent problems for the legal profession.
The reason why the formatting clauses are used more and more universally proves the rationality of its existence. Therefore, the attitude of various countries in the world is not completely rejected, but the unfair clauses are regulated. On the one hand, the positive influence of the form clause of the insurance contract should be identified; on the other hand, it is also the same. In order to prevent the abuse of free rights, the unfair clause should be effectively regulated and the reasonable space of its existence should be given, that is, to deny its adverse factors and to confirm its positive factors.
The author puts forward several suggestions on the regulation of the clauses of insurance contract format, including three aspects of legislation, law enforcement and judicature. In legislation, the author thinks that the legislative regulation of the form clause of insurance contract can be strengthened from three aspects. First, it is necessary to solve the conflict between the current legal provisions and whether there is any between the contract law > thirty-ninth and the 40. The author argues that there is no contradiction between the two provisions of the "contract law", and that there are differences in the application of the "contract law". The thirty-ninth article is a single quasi qualitative characteristic of the form clause, and the liability for exemptions is not actually born, but may happen in the future, and the fortieth is aimed at the future. It is the premise that the insurer is exempted from the liability which has been actually taken, which is based on the unreasonably exemption of the liability of the insurer. Secondly, the use of the civil agreement to regulate the clauses of the insurance contract format can make up for this legal loophole to a certain extent. It is worth our reference, but it must be confirmed in the policy and law to make it possible. The possibility of development can be used as an important issue in the formulation of contract law in China. Finally, a chapter in which the civil code is made is set out in a separate chapter on the regulation of formatting clauses. The unfair form clause exists in the law, and the judicial aspect includes the court to judge the validity of the form clause in the insurance contract, so as to achieve the purpose of guaranteeing the transaction efficiency and protecting the safety of the transaction.
The fourth part, as to the social supervision of the form clauses of insurance contract, the people who have the most contact with the format clauses in real life are the common people, so they can most truly feel the various problems existing in the practice of the format terms, and at the same time, the supervision of the format terms is very willing to have this. The supervision of the masses is very necessary, but it is also very limited. This requires the insurance industry association and the consumer association to exert their strength.

【学位授予单位】：广西师范大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.284;D923.6

【参考文献】