论保险合同复效规则的完善

发布时间：2018-05-20 22:28

本文选题：保险合同 + 复效　；参考：《华侨大学》2017年硕士论文

【摘要】：复效制度作为《保险法》的特有制度,对于维持保险合同效力,保护投保人、被保险人、受益人权益具有重要意义。《保险法》在人身保险一章中确立了该项制度,规定合同复效须由保险人与投保人达成协议,这种模式又称同意主义模式,同意主义由于赋予保险人过大的同意权,实务中经常出现保险人滥用同意权阻碍合同恢复效力的情况。尽管有的学者主张复效在财产保险合同中的适用,但因《保险法》在财产保险合同中并未规定复效,因此本文不将其纳入讨论范围。在最新的《最高人民法院关于适用中华人民共和国保险法若干问题的解释(三)》第8条将保险人拒绝复效的事由限定在“被保险人的危险程度在中止期间显著增加”这一范围内,这种模式又称可保主义模式,更加符合《保险法》的立法本意。本文在探究合同复效制度的法理基础、考察域外不同立法模式、梳理学者不同观点的基础上,就《保险法》以及《保险法司法解释三》中复效规则的整体妥当性和复效模式、催告制度等具体规则适用做了剖析,并拓展开来,将复效规则适用可能涉及的疑难问题,比如被保险人以及受益人是否享有复效申请权、复效合同的性质、复效后相关期间的计算等逐一分析。在此基础上,建议对《保险法司法解释三》的可保复效模式明确划分时间界点,以六个月或者一年为分界,前六个月或一年为自动复效期,六个月或一年后为可保复效期,以此建立宽松的可保主义模式;以理性保险人的立场对待可保证明并明确将《保险法司法解释三》第8条中“危险程度在中止期间显著增加”界定为“达到足以使保险人拒绝承保的程度”;明确复效合同为原合同与新合同的特殊组合体,保险双方有权通过意思自治改变合同相关款项、赋予被保险人、受益人以复效权利等;建立完善的续期保险费的催告制度,尤其将保险费的催告规定为保险人的义务。
[Abstract]:As a special system of the insurance law, the compound effect system is of great significance for the maintenance of the effectiveness of the insurance contract and the protection of the insurant, the insured and the beneficiary. The insurance law establishes the system in the personal insurance chapter, which stipulates that the contract effect must be reached by the insurer and the insured, which is also called the consent model, and agrees. As a result of giving too much consent to the insurer, it often occurs in the practice that the insurer misuses the right of consent to prevent the validity of the contract. Although some scholars advocate the application of the complex effect in the property insurance contract, the article does not include it in the scope of discussion because of the "insurance law >" in the property insurance contract. "The interpretation of the Supreme People's Court on the application of several issues of the People's Republic of China Insurance Law (three) > > the eighth article is limited to the extent that the insurer's refusal to reeffect is limited to the extent that the risk degree of the insured is significantly increased during the period of the suspension". This model is also called the insurable model, which is more in line with the legislative intent of the insurance law. On the basis of exploring the legal basis of the contract effect system, reviewing the different legislative modes and combing the different views of the scholars, this paper analyzes the application of the specific rules of the insurance law, the three > the legal interpretation of the insurance law, and the pattern of the complex effect, the system of expressing effect, and expands the application of the rules of the complex effect. As for the difficult problems, such as whether the insured and the beneficiary have the right to apply for the complex effect, the nature of the complex effect contract and the calculation of the related period after the complex effect, it is suggested that the time boundary of the insurable complex effect model of the three > the insurance law interpretation is clearly divided for six months or a year, the first six months or the first. The year is an automatic recovery period, six months or a year after the insurable recovery period, in order to establish a loose insurable model, treat the insurable proof with the rational insurer's position and clearly define "the significant increase in the risk level during the period of the three > eighth of the legal interpretation of the insurance law" as "enough to achieve the extent that the insurer refuses to underwrite the insurance." "Clear effect contract is the special combination of the original contract and the new contract, and the insurers have the right to change the contract related funds through the autonomy of the meaning, give the insured, the beneficiary with the complex effect rights, etc.; establish a perfect renewal insurance fee notice system, especially the insurance fee notice as the insurer's obligation.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.284

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