利益平衡视野下寿险合同中道德风险防范的限度
发布时间：2018-11-18 15:04
【摘要】：随着保险业的快速发展,保险法制建设亦取得了重大进步,特别是由于寿险业兼有保障和储蓄功能而被越来越多的人选择。在寿险制度的快速发展中,道德风险的防范成为寿险立法和寿险合同中的重要理论与实务问题。笔者从寿险合同中道德风险过度防范的现实及其造成的严重后果出发,探讨寿险合同防范道德风险的一些免责条款在个人私益和社会公益的冲突与平衡问题,研究如何通过利益平衡杠杆,在立法和司法过程中进行法律控制,矫正寿险合同中道德风险的过度防范问题,平衡保护当事人利益与社会公益。针对投保人和受益人故意杀害被保险人制造保险事故的道德风险,笔者建议我国保险立法关于投保人故意杀害被保险人的行为,可以主张投保人为谋杀被保险人而恶意投保的,保险人可以主张该合同无效,在寿险合同被确认无效前,保险人对于被保险人的死亡不承担给付保险金的责任。如果保险人的保险费缴纳满两年以上,则可以要求返还保单的现金价值。对于我国保险法第27条之规定,则建议对于该类保险合同的效力不予以立法确认,而赋予法官在司法实践中以自由裁量权。而在受益人故意杀害被保险人条款中,实施杀害被保险人行为的受益人应确认其丧失受益权,并区分只存在一个受益人和存在多个受益人两种情况确定保险金的归属。对于人寿保险复效时被保险人自杀、保险人两年免责期间的起算期间是否重新计算,笔者认为着眼于复效条款的性质和自杀免责期间的构建目的。人寿保险合同复效时自杀免责期间的起算时间从复效之日起计算的规定,明显存在过度防范被保险人道德风险之嫌,过于偏袒保险人的经营便利,但对于被保险人的利益保护则过于严格,而应改为“从人寿保险合同成立之日起开始起算”为宜。同时,我国在未来的《保险法》修订中被保险人自杀致死而保险人免责条款自杀适用例外应以被保险人自杀时的意思能力为判断标准。我国《保险法》关于被保险人故意犯罪致死而保险人免责条款的规定,在保险实务适用中困境重重,应该对故意犯罪致死的免责条款进行相应合理的限制。被保险人故意犯罪致死条款中“故意犯罪”认定是一个锁定法律事实的问题,可以通过司法控制来防范被保险人的道德风险。法官在进行判定时首先要认定被保险人犯罪之时的主观心态必须是限于故意的,且该故意犯罪行为具有致死的高度可能性;其次要根据保险法上的近因原则判断被保险人实施的犯罪行为与保险事故的发生的因果关系;最后要着重考量被保险人的故意行为是否触犯了刑律而对法益造成侵害、有极大社会危害性,而无涉刑事责任年龄的判断,期待澄清保险理论和保险实务中的讹误,导正被保险人故意犯罪致死免责条款的适用。
[Abstract]:With the rapid development of insurance industry, the construction of insurance legal system has made great progress, especially because the life insurance industry has the function of both security and savings, so more and more people choose it. In the rapid development of life insurance system, the prevention of moral hazard has become an important theoretical and practical issue in life insurance legislation and life insurance contracts. Starting from the reality of excessive prevention of moral hazard in life insurance contract and its serious consequences, the author discusses the conflict and balance of some exemption clauses of life insurance contract against moral hazard in personal interest and social public good. This paper studies how to control the law in the process of legislation and judicature, correct the excessive prevention of the moral hazard in the life insurance contract, and balance the protection of the interests of the parties and the public welfare through the leverage of interest balance. In view of the moral hazard caused by the insurance accident caused by the intentional killing of the insured by the policy holder and the beneficiary, the author suggests that the insurance legislation of our country should advocate that the policy holder should take out malicious insurance for the purpose of murdering the insured. The insurer may claim that the contract is null and void, and the insurer shall not be liable for the payment of the insurance premium for the death of the insured until the life insurance contract is confirmed as null and void. If the insurer has paid more than two years of insurance premium, it can demand the return of the cash value of the policy. For the provision of Article 27 of the Insurance Law of our country, it is suggested that the validity of this kind of insurance contract should not be confirmed by legislation, but the judge should be given discretion in judicial practice. In the clause that the beneficiary intentionally kills the insured, the beneficiary who commits the act of killing the insured should confirm the loss of his right of benefit, and distinguish between the existence of only one beneficiary and the existence of multiple beneficiaries to determine the ownership of the insurance money. For the life insurance when the insurant commits suicide, whether the period from the beginning of the two-year exemption period is recalculated, the author thinks that the nature of the reefficacy clause and the purpose of the construction of the suicide exemption period are focused on. The provision that the starting time of the life insurance contract during the period of suicide exemption is calculated from the date of the recovery of the life insurance contract obviously has the suspicion of excessive prevention of the insured's moral hazard, and is too partial to the insurer's operation convenience. However, the protection of the insurant's interests is too strict, and should be changed to "from the date of establishment of life insurance contract" is appropriate. At the same time, in the future revision of the Insurance Law, the insurant's suicide death and the insurer's exemption clause for suicide should be judged according to the intention ability of the insured's suicide. There are many difficulties in the practice of insurance in our country about the insurance law about the insurant intentionally committing a crime to death and the insurer's exemption clause. Therefore, the exemption clause of intentional crime death should be reasonably restricted. The determination of "intentional crime" in the death clause of intentional crime of the insured is a problem of locking the legal facts, which can prevent the moral hazard of the insured through judicial control. The judge should first determine that the subjective state of mind of the insured when committing a crime must be limited to intentional, and the intentional criminal act has a high possibility of death; Secondly, it is necessary to judge the causality between the criminal act of the insured and the occurrence of the insurance accident according to the principle of proximate cause in the insurance law. Finally, it is necessary to consider whether the intentional act of the insured violates the criminal law and infringes on the legal interests, which has great social harmfulness, without the judgement of age of criminal responsibility, and looks forward to clarifying the errors in insurance theory and practice. Guide the application of the exemption clause of intentional crime of the insured.
【学位授予单位】：上海大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
本文编号：2340373
[Abstract]:With the rapid development of insurance industry, the construction of insurance legal system has made great progress, especially because the life insurance industry has the function of both security and savings, so more and more people choose it. In the rapid development of life insurance system, the prevention of moral hazard has become an important theoretical and practical issue in life insurance legislation and life insurance contracts. Starting from the reality of excessive prevention of moral hazard in life insurance contract and its serious consequences, the author discusses the conflict and balance of some exemption clauses of life insurance contract against moral hazard in personal interest and social public good. This paper studies how to control the law in the process of legislation and judicature, correct the excessive prevention of the moral hazard in the life insurance contract, and balance the protection of the interests of the parties and the public welfare through the leverage of interest balance. In view of the moral hazard caused by the insurance accident caused by the intentional killing of the insured by the policy holder and the beneficiary, the author suggests that the insurance legislation of our country should advocate that the policy holder should take out malicious insurance for the purpose of murdering the insured. The insurer may claim that the contract is null and void, and the insurer shall not be liable for the payment of the insurance premium for the death of the insured until the life insurance contract is confirmed as null and void. If the insurer has paid more than two years of insurance premium, it can demand the return of the cash value of the policy. For the provision of Article 27 of the Insurance Law of our country, it is suggested that the validity of this kind of insurance contract should not be confirmed by legislation, but the judge should be given discretion in judicial practice. In the clause that the beneficiary intentionally kills the insured, the beneficiary who commits the act of killing the insured should confirm the loss of his right of benefit, and distinguish between the existence of only one beneficiary and the existence of multiple beneficiaries to determine the ownership of the insurance money. For the life insurance when the insurant commits suicide, whether the period from the beginning of the two-year exemption period is recalculated, the author thinks that the nature of the reefficacy clause and the purpose of the construction of the suicide exemption period are focused on. The provision that the starting time of the life insurance contract during the period of suicide exemption is calculated from the date of the recovery of the life insurance contract obviously has the suspicion of excessive prevention of the insured's moral hazard, and is too partial to the insurer's operation convenience. However, the protection of the insurant's interests is too strict, and should be changed to "from the date of establishment of life insurance contract" is appropriate. At the same time, in the future revision of the Insurance Law, the insurant's suicide death and the insurer's exemption clause for suicide should be judged according to the intention ability of the insured's suicide. There are many difficulties in the practice of insurance in our country about the insurance law about the insurant intentionally committing a crime to death and the insurer's exemption clause. Therefore, the exemption clause of intentional crime death should be reasonably restricted. The determination of "intentional crime" in the death clause of intentional crime of the insured is a problem of locking the legal facts, which can prevent the moral hazard of the insured through judicial control. The judge should first determine that the subjective state of mind of the insured when committing a crime must be limited to intentional, and the intentional criminal act has a high possibility of death; Secondly, it is necessary to judge the causality between the criminal act of the insured and the occurrence of the insurance accident according to the principle of proximate cause in the insurance law. Finally, it is necessary to consider whether the intentional act of the insured violates the criminal law and infringes on the legal interests, which has great social harmfulness, without the judgement of age of criminal responsibility, and looks forward to clarifying the errors in insurance theory and practice. Guide the application of the exemption clause of intentional crime of the insured.
【学位授予单位】：上海大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
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相关期刊论文 前3条
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