日本保险法上的追溯保险规则研究及对我国的启示
发布时间：2018-09-07 07:15
【摘要】：所谓“无危险无保险”,危险的客观存在不仅成为保险产生及发展的前提,也体现了保险的意义。那么什么是危险呢?一般认为危险是指意外事故或不可抗力所致损失发生的不确定的客观状态。通常,人都会厌恶损失,相应地就会想方设法规避危险。此时,保险就产生了。也就是说保险是一种专门针对危险的危险转移机制,即投保人通过保险合同的订立,将保险事故所致损失形式上转移给保险人,实质上以保险人为中介将危险分散于危险团体的一种机制。但实际上并非所有的危险都可以通过保险来进行规避。那些可以通过保险来进行转移的危险叫做可保危险。通说认为可保危险是指纯粹的、偶然的、会造成重大损失的、普遍的、未来的危险。其中就可保危险的未来性来说,目前在我国的保险法学界,其被认为是指可保危险是属于未来的、尚未发生的危险;因此就排除了已发生过的危险。而且我国保险理论和实务界,对于保险合同的生效时间采取了“零时起保”制,即保险合同的生效时间是在合同成立的次日零时或约定的未来某一日的零时;而合同生效,即意味着保险人具有了承担危险的义务,可以说这种理论的构建与可保危险的未来性的看法是一脉相承的。但对于在保险合同订立时就已经发生的危险,是否可以因其不具有未来性、不符合可保危险的特点而就此认定相应的保险合同不成立或无效呢?显然这种做法过于武断,尤其是对于在保险合同订立时当事人并不知道已经发生的危险,将其排除出可保危险的范围之外显然有失公允。实际上,对于这种将保险人承担危险的时间回溯到保险期间起点前的某个时间点开始的保险,就称之为追溯保险。追溯保险制度,肇始于海上货运保险,我国《海商法》第224条也有类似的规定,即:“订立合同时,被保险人已经知道或者应当知道保险标的已经因发生保险事故而遭受损失的,保险人不负赔偿责任,但是有权收取保险费;保险人已经知道或者应当知道保险标的已经不可能因发生保险事故而遭受损失的,被保险人有权收回已经支付的保险费。”但是,对于我国《保险法》来说,针对追溯保险制度则完全没有确立任何规则。显然,这不能充分达到人们通过保险来转移危险的目的,同时也不利于我国保险业的发展。日本现行《保险法》上,针对追溯保险制度,有着明确而清晰的规定。同时,针对追溯保险,日本不仅相关学说和理论发展成熟,在保险实务方面其同样有着相对广泛的应用。这些对于我国来说都具有比较大的借鉴意义。本选题,计划以日本的相关保险法理论与保险实务为中心,对比地考察中日两国对于追溯保险制度的不同理解和应用,以期能够清晰地把握住追溯保险制度的内涵与外延,同时理解其制度的形成脉络和现实意义,进而给我国的相关立法、法律解释和实务应用带来实际意义的启示。
[Abstract]:The so-called "no danger without insurance", the objective existence of danger not only become the premise of the emergence and development of insurance, but also reflect the significance of insurance. So what is danger? Danger is generally regarded as the uncertain objective state of loss caused by accident or force majeure. In general, people will hate loss, and accordingly will find ways to avoid danger. At this point, insurance arises. That is to say, insurance is a kind of risk transfer mechanism specifically aimed at danger. That is, through the conclusion of the insurance contract, the policyholder transfers the loss caused by the insurance accident to the insurer. Essentially, a mechanism by which the insurer acts as an intermediary to spread danger among dangerous groups. In practice, however, not all risks can be circumvented by insurance. Those risks that can be transferred through insurance are called insurable risks. The general view is that insurable risks are pure, accidental, costly, widespread, and future risks. As far as the future of insurable danger is concerned, in the field of insurance law in our country, it is considered that insurable danger belongs to the future and has not yet occurred. Moreover, in the field of insurance theory and practice in China, the effective time of the insurance contract is "from 00:00", that is, the effective time of the insurance contract is 00:00 the day after the contract is formed or 00:00 of the agreed future day; and the contract takes effect. That is to say, the insurer has the obligation to bear the risk, so it can be said that the construction of this theory is consistent with the view of the future nature of the insurable danger. But for the danger that has already occurred at the time of the conclusion of the insurance contract, can it be determined that the corresponding insurance contract is not established or invalid because it does not have the future and does not accord with the characteristics of insurable risk? It is clear that this approach is too arbitrary, especially when the parties are unaware of the risk that has occurred at the time of the conclusion of the insurance contract, and it is manifestly unfair to exclude it from the scope of the insurable risk. In fact, this kind of insurance that traces the risk of the insurer back to a certain point before the beginning of the insurance period, is called retroactive insurance. The system of retroactive insurance began with marine cargo insurance. Article 224 of the Maritime Law of China has similar provisions, that is, "when concluding a contract, If the insured has known or should have known that the subject matter of the insurance has suffered losses as a result of the insurance accident, the insurer shall not be liable for compensation, but shall have the right to collect the insurance premium; If the insurer has known or ought to know that the subject matter of the insurance is no longer likely to suffer loss as a result of an insurance accident, the insured shall have the right to recover the premium already paid. " However, for China's Insurance Law, there are no rules for retroactive insurance system. Obviously, this can not achieve the goal of people transferring danger through insurance, and it is also unfavorable to the development of insurance industry in China. In Japan's current Insurance Law, there are clear and clear regulations on retroactive insurance system. At the same time, for traceability insurance, Japan not only has a mature theory and theory, but also has a relatively wide application in insurance practice. All these are of great significance to our country. This topic, taking the relevant insurance law theory and insurance practice of Japan as the center, compares the different understanding and application of the traceability insurance system between China and Japan, in order to clearly grasp the connotation and extension of the traceability insurance system. At the same time, to understand the formation of its system and practical significance, and then to our country's relevant legislation, legal interpretation and practical application of practical significance of inspiration.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D931.3;DD912.28
本文编号：2227578
[Abstract]:The so-called "no danger without insurance", the objective existence of danger not only become the premise of the emergence and development of insurance, but also reflect the significance of insurance. So what is danger? Danger is generally regarded as the uncertain objective state of loss caused by accident or force majeure. In general, people will hate loss, and accordingly will find ways to avoid danger. At this point, insurance arises. That is to say, insurance is a kind of risk transfer mechanism specifically aimed at danger. That is, through the conclusion of the insurance contract, the policyholder transfers the loss caused by the insurance accident to the insurer. Essentially, a mechanism by which the insurer acts as an intermediary to spread danger among dangerous groups. In practice, however, not all risks can be circumvented by insurance. Those risks that can be transferred through insurance are called insurable risks. The general view is that insurable risks are pure, accidental, costly, widespread, and future risks. As far as the future of insurable danger is concerned, in the field of insurance law in our country, it is considered that insurable danger belongs to the future and has not yet occurred. Moreover, in the field of insurance theory and practice in China, the effective time of the insurance contract is "from 00:00", that is, the effective time of the insurance contract is 00:00 the day after the contract is formed or 00:00 of the agreed future day; and the contract takes effect. That is to say, the insurer has the obligation to bear the risk, so it can be said that the construction of this theory is consistent with the view of the future nature of the insurable danger. But for the danger that has already occurred at the time of the conclusion of the insurance contract, can it be determined that the corresponding insurance contract is not established or invalid because it does not have the future and does not accord with the characteristics of insurable risk? It is clear that this approach is too arbitrary, especially when the parties are unaware of the risk that has occurred at the time of the conclusion of the insurance contract, and it is manifestly unfair to exclude it from the scope of the insurable risk. In fact, this kind of insurance that traces the risk of the insurer back to a certain point before the beginning of the insurance period, is called retroactive insurance. The system of retroactive insurance began with marine cargo insurance. Article 224 of the Maritime Law of China has similar provisions, that is, "when concluding a contract, If the insured has known or should have known that the subject matter of the insurance has suffered losses as a result of the insurance accident, the insurer shall not be liable for compensation, but shall have the right to collect the insurance premium; If the insurer has known or ought to know that the subject matter of the insurance is no longer likely to suffer loss as a result of an insurance accident, the insured shall have the right to recover the premium already paid. " However, for China's Insurance Law, there are no rules for retroactive insurance system. Obviously, this can not achieve the goal of people transferring danger through insurance, and it is also unfavorable to the development of insurance industry in China. In Japan's current Insurance Law, there are clear and clear regulations on retroactive insurance system. At the same time, for traceability insurance, Japan not only has a mature theory and theory, but also has a relatively wide application in insurance practice. All these are of great significance to our country. This topic, taking the relevant insurance law theory and insurance practice of Japan as the center, compares the different understanding and application of the traceability insurance system between China and Japan, in order to clearly grasp the connotation and extension of the traceability insurance system. At the same time, to understand the formation of its system and practical significance, and then to our country's relevant legislation, legal interpretation and practical application of practical significance of inspiration.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D931.3;DD912.28
【参考文献】
相关期刊论文 前2条
1 杨帆;;论追溯保险的合法性基础及构成要件[J];上海保险;2011年02期
2 沙银华;姬文娟;;日本保险立法对我国的启示[J];保险研究;2008年10期
，本文编号：2227578
本文链接：https://www.wllwen.com/falvlunwen/jingjifalunwen/2227578.html
