卡式电子保单业务特殊法律问题研究

发布时间：2018-07-06 08:10

本文选题：卡式电子保单业务 + 自助保险卡　；参考：《中国青年政治学院》2015年硕士论文

【摘要】：本文包括七个部分。第一部分为绪论,主要涉及研究背景、研究的问题、研究意义和研究方法。实践中卡式电子保单业务引起的纠纷逐渐增多,主要涉及未激活的处理、投保人认定、代激活时信息填错的归责、代激活时投保人未看到免责条款的处理等问题。学界已对此有所关注,但尚未形成系统的观点。本文从案例出发,梳理卡式电子保单业务的现有学说,旨在解决实践争议。第二部分是卡式电子保单业务的基础理论。首先明确提出了卡式电子保单业务的概念,它与卡式保险业务、卡式业务、自助保险卡业务的提法含义相同。卡式电子保单业务主要依托自助保险卡展开。从类型上讲,自助保险卡主要有实物保险卡和虚拟保险卡两种,其主要特征是不记名、可转让。激活自助保险卡有网络、电话两种方式,鉴于目前使用最多的是网络激活的方式,本文仅对网上激活流程进行详细介绍。同时指出目前卡式电子保单业务的适用范围。第三部分为卡式电子保单业务的理论分析框架,以第二部分描述的卡式业务的基本流程为基础进行探讨。其关键是对卡式业务中的两个行为——购卡和激活进行定性,明确保险合同何时成立。首先对现有的学说观点进行分析提炼,划分为“同一合同说”和“不同合同说”。“同一合同说”是将购卡和激活看成订立保险合同的两个阶段,又可分为“购卡时成立说”和“成功激活时成立说”。“购卡时成立说”主张购卡时保险合同成立,“成功激活时成立说”则认为成功完成激活程序时保险合同成立,交费购卡只是保险合同的要约。“不同合同说”是将购卡和激活看成两个合同,购卡时成立买卖合同,激活后生成电子保单时成立保险合同。依对这两个合同间关系的不同认识,“不同合同说”可继续划分为“预约本约说”和“不相关说”。前者主张两个合同独立但有密切关联,购卡为预约,激活为本约,后者主张两个合同独立存在且互不关联。对这些学说争议进行介绍后,更重要的是对各观点进行分析和评价,最后权衡利弊得出自己的结论。由于购卡时投保人、被保险人不能最终确定,保险合同无法成立,“购卡时成立说”违背了保险法的基本原理;“成功激活时成立说”将购卡视为保险合同的要约,激活时构成承诺,激活前购卡人撤销要约会导致售出的保险卡返还,不利于维护交易的稳定;“预约本约说”存在主体不同、预约本约对价相同等一些问题,虽可以解释,但适用上显得复杂;“不相关说”则克服了上述问题,对购卡和激活定位准确,也更符合卡式业务的流程,且与债权让与制度结合可解释主体不同的难题,宜作为卡式业务的分析框架。第四部分紧接第三部分的成立时间问题,讨论卡式电子保单的生效时间、保险责任开始时间问题。在对现有学说进行分析后,本文选取了一个新的角度来解决上述问题,即分析实践中保险人在自助保险卡上所作的声明,从声明的内涵和效力入手,认定激活后生成电子保单的时点为保险合同的生效时间,声明中指出的激活后的特定时点为保险责任开始时间。接下来的第五部分主要探讨代激活时如实告知义务的履行问题。首先从理论上对激活和代激活的行为定性,认定代激活是委托代理行为,并且指出该行为并非被禁止的自己代理和双方代理,不违背代理制度的要求。然后具体探讨代激活时如实告知义务的履行问题,确定代激活过程中保险代理人填错信息时的责任归属。此外,还从代理内部关系的层面特别指出了保险代理人在代激活过程中所负有的义务。第六部分为卡式电子保单明确说明义务的特殊履行,结合卡式业务流程确定履行时点为激活时,分析我国现有规范明确履行标准为程序性标准,具体结合实践中的履行过程分析履行方式问题。最后讨论代激活时明确义务如何履行的问题,尤其是保险代理人未将网页上的说明内容告知投保人时的处理。第七部分为结语,总结了全文的观点。
[Abstract]:This article includes seven parts. The first part is the introduction, which mainly involves the research background, the research problems, the research significance and the research methods. In practice, the disputes caused by the card type electronic insurance business are increasing gradually, mainly involving the inactive treatment, the policyholders affirm, the liability for the information filling in the replacement of the information on behalf of the activator, and the insured did not see the disclaimer at the time of activation. The second part is the basic theory of the card type electronic insurance business. First, the concept of the card type electronic insurance business is put forward clearly, and it is with the card type insurance. Insurance business, card business, self insurance card business concept of the same meaning. Card type electronic insurance business mainly rely on self-help insurance card. From the type, the self-help insurance card mainly has two kinds of physical insurance card and virtual insurance card, its main features are anonymous, transferable, active self insurance card network, telephone two ways, in view of At present, the most used is the way of network activation. This article only introduces the network activation process in detail. At the same time, it points out the scope of application of the current card type electronic policy service. The third part is the theoretical analysis framework of the card type electronic insurance service, which is based on the basic flow of the card business described in the second part. The key is The two behavior in the card business, purchase and activation, is made to determine when the insurance contract is established. First, the existing doctrines are analyzed and refined, which are divided into "the same contract theory" and "different contract theory". "The same contract" is the two stage of the purchase and activation as an insurance contract, and it can be divided into "the same contract". When the purchase card was established, the insurance contract was established when the purchase of the card was established. The insurance contract was established when the card was successfully activated and the insurance contract was established when the activation procedure was successfully completed. The purchase of the card was only the offer of the insurance contract. According to the different understanding of the relationship between the two contracts, the "different contract theory" can continue to be divided into "appointment book" and "unrelated". The former advocates that the two contracts are independent but closely connected, the purchase of the contract is reserved, the activation is the contract, the latter advocates the latter. The latter advocates the latter. The two contracts are independent and unrelated. After the introduction of these doctrines, it is more important to analyze and evaluate the views, and finally weigh the advantages and disadvantages to draw their conclusions. As the insured, the insured can not be finally determined, the insurance contract can not be established. "The establishment of the card when buying the card" is contrary to the basic of the insurance law. The principle of "successful activation when it is established" is regarded as an offer of insurance contract, which is activated when it is activated, and it is not conducive to the stability of the transaction, which is not conducive to the stability of the transaction, which is not conducive to the stability of the transaction. It is complex; the "unrelated theory" overcomes the above problems. It is accurate for the purchase and activation positioning, and is more in line with the process of the card type business, and it is different from the creditor's transfer system, which can explain the different subject of the subject. It should be the analysis framework of the card type business. The fourth part follows the time problem of the third part, and discusses the card type electronic insurance policy. After the analysis of the existing theory, this paper selects a new angle to solve the above problem, that is, to analyze the statement made by the insurer in the self-help insurance card in the practice, starting with the connotation and effect of the declaration, and the time point of the generation of the electronic insurance after the activation is the effect of the insurance contract. Time, the specific time point of activation indicated in the statement is the start time of the insurance liability. The next fifth parts mainly discuss the fulfillment of the duty of notification when the activation is activated. It is not contrary to the requirements of the agency system, and then discusses the fulfillment of the duty of disclosure when the agent is activated, and determines the responsibility of the insurance agent to fill in the wrong information in the process of activation. In addition, it also points out the obligation of the insurance agent in the process of the activation of the agent in the aspect of the internal relations of the agent. The six part is the special performance of the specific obligation of the card type electronic insurance policy. Combining with the card business process to determine the performance time point to be activated, it analyzes the existing standard of our country's existing standard as the procedural standard, and concretely combines the fulfillment process in practice to analyze the problem of performance. Finally, the problem of how to make clear the obligation to perform when the generation is activated is discussed. In particular, the insurance agent did not inform the insured when he explained the contents on the webpage. The seventh part is the conclusion, summarizing the full text.
【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】：2015
【分类号】：D922.284

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