保险法合理期待原则探究
发布时间：2018-09-19 06:19
【摘要】：保险合同是一种典型的附和合同，即投保人、被保险人对于保险人提供的格式合同只能选择接受或者不接受，除此之外并没有其他的选择。对于保险人提供的格式合同,由于它内容上含有大量专业性极强的俗语，使得投保人在购买保险是难以充分的阅读理解，而投保人在订立合同是已经根本不可能与保险人就保单的条款进行协商谈判，这就使得保险合同的相对方从协商订立合同时就处于一个非常不利的交易地位，当保险人和保险相对人就保单条款发生争执时，按照传统的保险合同解释规则往往无法完全解决。于是在上世纪60年代，美国的基顿法官在总结了20世纪30年代至70年代众多保险法案例的基础上提出了“合理期待原则”，随着而来的是在美国大多数法院开始推行适用，与此同时，美国保险业界也开始了一场悄悄的自我革命，保险业经营者开始重新制定保单内容，尽可能的以清晰地语言表述拟定的条款，改良保险品种等方式自觉顾及到保险相对人的利益，使得美国的保险法业走在了世界的前列，而且也影响了世界其他国家的保险立法及其变革。 在我国保险业起步较晚，保险法和合同法等相关立法中对合同解释原则的规定也仅停留在传统的几个上面，对新兴的合理期待原则并没有涉及，中国的保险法是否可以借鉴有着浓郁英美法气息的合理期待原则将是本文主要探讨的问题，中国的保险立法不乏借鉴西方先进理论的成功经历，根据国情有选择的移植将有利于我国现代法律体系的完善。 本文正文分四个部分： 第一章:保险法合理期待原则概述，阐述了保险法合理期待原则产生的背景、提出及发展，合理期待原则与疑义利益原则的比较等； 第二章：保险法合理期待原则产生的基础，，从理论基础和现实基础两个方面加以阐述； 第三章：保险法合理期待原则适用的条件，结合国内外关于研究保险法合理期待原则的相关著作和论文，从四个方面归纳出合理期待原则的适用条件； 第四章:保险法合理期待原则在我国适用的可行性分析，从我国保险市场的现状和司法实践中遇到的问题入手，提出我国引进合理期待原则的可行性。
[Abstract]:Insurance contract is a typical appended contract, that is, policy holder, the insured can only choose to accept or not accept the format contract provided by the insurer, but there is no other choice. For the format contract provided by the insurer, because its content contains a large number of professional and extremely strong idioms, it is difficult for the policyholder to fully read and understand when buying insurance. And the policy holder is no longer able to negotiate the terms of the policy with the insurer in the conclusion of the contract. This makes the opposite party of the insurance contract in a very disadvantageous trading position when negotiating the conclusion of the contract. When the insurer and the insurance counterpart dispute over the terms of the policy, the traditional rules of interpretation of the insurance contract can not be completely resolved. So in the 1960s, Judge Keaton of the United States put forward the "principle of reasonable expectation" on the basis of summing up the numerous cases of insurance law from the 1930s to the 1970s, and as it began to apply in most courts in the United States, At the same time, the American insurance industry also began a quiet self-revolution, insurance operators began to reformulate the content of the policy, as clearly as possible in the language of the proposed terms, The improvement of insurance varieties and other ways consciously take into account the interests of the insurance counterpart, making the insurance law industry in the United States in the forefront of the world, but also affected the insurance legislation of other countries in the world and its changes. In our country, the insurance industry started relatively late, and the regulations on the principles of contract interpretation in the relevant legislation, such as insurance law and contract law, have only stayed in the traditional few, and the emerging principle of reasonable expectation has not been involved. Whether China's insurance law can draw lessons from the principle of reasonable expectation, which has a strong flavor of Anglo-American law, will be the main issue discussed in this paper, and China's insurance legislation will draw lessons from the successful experience of western advanced theories. The selective transplantation according to the national conditions will be beneficial to the perfection of our modern legal system. The text of this paper is divided into four parts: the first chapter: the summary of the principle of reasonable expectation in insurance law, the background of the principle of reasonable expectation of insurance law, its development, and the comparison between the principle of reasonable expectation and the principle of doubtful interest, etc. The second chapter: the basis of the principle of reasonable expectation in insurance law, from the theoretical basis and the practical basis, the third chapter: the application of the principle of reasonable expectation of insurance law conditions, Combined with the relevant works and papers on the principle of reasonable expectation in insurance law at home and abroad, this paper concludes the applicable conditions of the principle of reasonable expectation from four aspects. Chapter four: the feasibility analysis of the application of the principle of reasonable expectation of insurance law in our country. Starting with the present situation of insurance market and the problems encountered in judicial practice, this paper puts forward the feasibility of introducing the principle of reasonable expectation in our country.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.284
本文编号：2249298
[Abstract]:Insurance contract is a typical appended contract, that is, policy holder, the insured can only choose to accept or not accept the format contract provided by the insurer, but there is no other choice. For the format contract provided by the insurer, because its content contains a large number of professional and extremely strong idioms, it is difficult for the policyholder to fully read and understand when buying insurance. And the policy holder is no longer able to negotiate the terms of the policy with the insurer in the conclusion of the contract. This makes the opposite party of the insurance contract in a very disadvantageous trading position when negotiating the conclusion of the contract. When the insurer and the insurance counterpart dispute over the terms of the policy, the traditional rules of interpretation of the insurance contract can not be completely resolved. So in the 1960s, Judge Keaton of the United States put forward the "principle of reasonable expectation" on the basis of summing up the numerous cases of insurance law from the 1930s to the 1970s, and as it began to apply in most courts in the United States, At the same time, the American insurance industry also began a quiet self-revolution, insurance operators began to reformulate the content of the policy, as clearly as possible in the language of the proposed terms, The improvement of insurance varieties and other ways consciously take into account the interests of the insurance counterpart, making the insurance law industry in the United States in the forefront of the world, but also affected the insurance legislation of other countries in the world and its changes. In our country, the insurance industry started relatively late, and the regulations on the principles of contract interpretation in the relevant legislation, such as insurance law and contract law, have only stayed in the traditional few, and the emerging principle of reasonable expectation has not been involved. Whether China's insurance law can draw lessons from the principle of reasonable expectation, which has a strong flavor of Anglo-American law, will be the main issue discussed in this paper, and China's insurance legislation will draw lessons from the successful experience of western advanced theories. The selective transplantation according to the national conditions will be beneficial to the perfection of our modern legal system. The text of this paper is divided into four parts: the first chapter: the summary of the principle of reasonable expectation in insurance law, the background of the principle of reasonable expectation of insurance law, its development, and the comparison between the principle of reasonable expectation and the principle of doubtful interest, etc. The second chapter: the basis of the principle of reasonable expectation in insurance law, from the theoretical basis and the practical basis, the third chapter: the application of the principle of reasonable expectation of insurance law conditions, Combined with the relevant works and papers on the principle of reasonable expectation in insurance law at home and abroad, this paper concludes the applicable conditions of the principle of reasonable expectation from four aspects. Chapter four: the feasibility analysis of the application of the principle of reasonable expectation of insurance law in our country. Starting with the present situation of insurance market and the problems encountered in judicial practice, this paper puts forward the feasibility of introducing the principle of reasonable expectation in our country.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.284
【参考文献】
相关期刊论文 前3条
1 孙宏涛;;保险合同解释中的合理期待原则探析[J];当代法学;2009年04期
2 陆坚;沈燕;;运用合理期待原则解决保险争议的探索[J];上海保险;2010年02期
3 梁鹏;;保险法合理期待原则研究[J];国家检察官学院学报;2007年05期
本文编号：2249298
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