保险法不可抗辩规则研究
发布时间：2018-12-23 12:24
【摘要】：不可抗辩规则是对保险人合同解除权的限制，其有效的遏制了保险人权利的滥用，保护了被保险人的利益。虽然我国在2009年新修订的保险法中引入了不可抗辩规则，，但是条文的规定较为简单，不能应对复杂的社会实践。因此，本文即试图运用比较分析法、历史分析法和价值分析法，通过考察不可抗辩规则的起源与发展，研究不可抗辩规则存在的法理依据，以论述其存在的合理与合法性。同时，通过对不可抗辩规则在适用中的争议问题进行探讨，从而为完善我国不可抗辩规则的规定提供建议。本文除引言和结语外，包含四个部分，其主要内容如下： 第一部分介绍了不可抗辩规则的含义，并对不可抗辩规则的起源与发展进行了论述。不可抗辩规则与弃权、禁止抗辩制度一样，都是限制保险人行使合同解除权的一项制度，但是三者之间存在一定差异。不可抗辩起源于英美，其性质已从任意约定的条款发展为具有普遍性和法律强制效力的不可抗辩规则。 第二部分介绍了不可抗辩规则的法理依据。不可抗辩规则是对“欺诈使合同得撤销或无效”这一合同法基本规则的突破，但是不可抗辩规则一方面与诚实信用原则的限制和平衡功能相适应；另一方面又与公共政策所追求的效益、利益与发展这三个基本价值相符。因此，不可抗辩规则的存在具有相当的合理与合法性。 第三部分探讨了不可抗辩规则在适用中的一些争议问题。不可抗辩规则不应适用于严重性欺诈；当告知义务的违反导致合同无效时，不可抗辩规则不应适用；保险合同复效时，投保人应当再次履行如实告知义务，此时应当分别计算两次可抗辩期间；不可抗辩规则的适用应限于可抗辩期间内未发生保险事故；保险法上的解除权应排除合同法上的撤销权而适用。 第四部分对我国有关不可抗辩规则的规定进行了解读并提出了完善建议。我国的不可抗辩规则既适用于人身保险合同，也适用于财产保险合同；可抗辩期间自合同成立时起算。我国立法应当明确，保险利益欠缺时以及构成严重欺诈时不应适用不可抗辩规则；合同复效时应分别计算两次可抗辩期间；不可抗辩规则的适用应限于可抗辩期间内未发生保险事故；保险法上的解除权应排除合同法上的撤销权。
[Abstract]:The non-defensible rule is the restriction of the insurer's right to rescind the contract, which effectively restrains the abuse of the insurer's rights and protects the interests of the insured. Although our country introduced the non-defense rule in the new insurance law of 2009, but the provisions of the provisions are relatively simple, can not cope with the complex social practice. Therefore, this paper attempts to use comparative analysis, historical analysis and value analysis, by investigating the origin and development of the non-defensible rule, to study the legal basis for the existence of the non-defensible rule, and to discuss the rationality and legitimacy of its existence. At the same time, through the discussion of the dispute in the application of the indefensible rule, suggestions are provided for the perfection of the indefensible rule in our country. In addition to the introduction and conclusion, this paper contains four parts, the main contents are as follows: the first part introduces the meaning of the non-defensible rule, and discusses the origin and development of the non-defensible rule. The non-defensible rule, like waiver and prohibition, is a system that restricts the insurer from exercising the right to rescind the contract, but there are some differences among them. The nature of non-defense originated in Britain and America, and its nature has developed from the clause of arbitrary agreement to the rule of non-pleading with universal and compulsory force of law. The second part introduces the legal basis of the indefensible rule. The non-defensible rule is a breakthrough to the basic rule of contract law of "fraud makes the contract annulment or invalidation", but on the one hand, the non-defensible rule adapts to the restriction and balance function of the principle of good faith. On the other hand, it is consistent with the three basic values of public policy: efficiency, benefit and development. Therefore, the existence of the non-defensible rule is quite reasonable and legitimate. The third part discusses some controversial issues in the application of the non-defensible rule. The non-defensible rule should not be applied to serious fraud; when the breach of the obligation of notification results in the invalidation of the contract, the non-defensible rule should not be applied. When the insurance contract is effective again, the applicant shall perform the obligation of informing truthfully again, and at this time shall calculate two defensible periods separately; the application of the non-defensible rule shall be limited to the absence of an insurance accident within the defensible period; The right of rescission in insurance law should be excluded from the application of the right of rescission in contract law. The fourth part interprets the rules of non-defense and puts forward some suggestions. The non-defensible rule of our country is applicable to both personal insurance contract and property insurance contract. The legislation of our country should make it clear that the non-defensible rule should not be applied when the insurance interest is lacking and constitutes serious fraud, and the period of rebuttal should be calculated respectively when the contract is effective again. The application of the non-defensible rule should be limited to the absence of an insurance accident within the defensible period, and the right of rescission in the insurance law should be excluded from the contract law.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.284
本文编号：2389981
[Abstract]:The non-defensible rule is the restriction of the insurer's right to rescind the contract, which effectively restrains the abuse of the insurer's rights and protects the interests of the insured. Although our country introduced the non-defense rule in the new insurance law of 2009, but the provisions of the provisions are relatively simple, can not cope with the complex social practice. Therefore, this paper attempts to use comparative analysis, historical analysis and value analysis, by investigating the origin and development of the non-defensible rule, to study the legal basis for the existence of the non-defensible rule, and to discuss the rationality and legitimacy of its existence. At the same time, through the discussion of the dispute in the application of the indefensible rule, suggestions are provided for the perfection of the indefensible rule in our country. In addition to the introduction and conclusion, this paper contains four parts, the main contents are as follows: the first part introduces the meaning of the non-defensible rule, and discusses the origin and development of the non-defensible rule. The non-defensible rule, like waiver and prohibition, is a system that restricts the insurer from exercising the right to rescind the contract, but there are some differences among them. The nature of non-defense originated in Britain and America, and its nature has developed from the clause of arbitrary agreement to the rule of non-pleading with universal and compulsory force of law. The second part introduces the legal basis of the indefensible rule. The non-defensible rule is a breakthrough to the basic rule of contract law of "fraud makes the contract annulment or invalidation", but on the one hand, the non-defensible rule adapts to the restriction and balance function of the principle of good faith. On the other hand, it is consistent with the three basic values of public policy: efficiency, benefit and development. Therefore, the existence of the non-defensible rule is quite reasonable and legitimate. The third part discusses some controversial issues in the application of the non-defensible rule. The non-defensible rule should not be applied to serious fraud; when the breach of the obligation of notification results in the invalidation of the contract, the non-defensible rule should not be applied. When the insurance contract is effective again, the applicant shall perform the obligation of informing truthfully again, and at this time shall calculate two defensible periods separately; the application of the non-defensible rule shall be limited to the absence of an insurance accident within the defensible period; The right of rescission in insurance law should be excluded from the application of the right of rescission in contract law. The fourth part interprets the rules of non-defense and puts forward some suggestions. The non-defensible rule of our country is applicable to both personal insurance contract and property insurance contract. The legislation of our country should make it clear that the non-defensible rule should not be applied when the insurance interest is lacking and constitutes serious fraud, and the period of rebuttal should be calculated respectively when the contract is effective again. The application of the non-defensible rule should be limited to the absence of an insurance accident within the defensible period, and the right of rescission in the insurance law should be excluded from the contract law.
【学位授予单位】：中国青年政治学院
【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2条
1 郭建标;;《保险法》中不可抗辩条款若干法律问题之探讨[J];法律适用;2012年01期
2 樊启荣;;人寿保险契约之不可抗辩条款研究[J];商业经济与管理;2008年03期
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