《保险法》及其司法解释对海上保险合同的若干影响
发布时间：2018-11-28 07:56
【摘要】：《海商法》是调整海上保险关系最重要的法律,它与陆上保险法之间的关系是我们要关注的重点。在我国,《保险法》及其司法解释能够对海上保险合同产生影响。这主要是因为我国保险立法采用“一元主义”体例,相对于海上保险法①而言,《保险法》是适用于除农业保险以外其他一切商业保险的一般法。此外,我国海上保险法的相对自体性、理论基础的薄弱性以及海上保险法适用二十余年之后难以避免的滞后性也是《保险法》能够在海上保险领域发挥作用的重要原因。当前我国的社会环境有较大改变。《海商法》已不能与现实需要完美契合,甚至出现了一些力不从心。近年来,我国立法水平提高、司法实践能力提升、法学研究进一步深入、法治建设也取得了许多成果,修改《海商法》的呼声愈发强烈。其中,海上保险合同订立、海上保险合同解除以及海上保险人的代位求偿权等问题都是修改《海商法》的重点和难点。比较而言,《保险法》的相关规定能够不断吸收学界的研究成果,不断适应社会发展的需要,对《海商法》修改具有重要的指导和借鉴作用。然而,国家立法委出于有限立法资源优位使用的考虑,《海商法》修改并未提上议程。②在此情况下,适用《海商法》海上保险法规遇到的困难和瓶颈只能从正确适用《保险法》及其司法解释,发挥《保险法》及其司法解释对海上保险合同的影响力上寻找突破。本文共六部分。引言部分主要分析了研究《保险法》及其司法解释对海上保险产生影响这一问题的意义以及《保险法》及其司法解释可能在哪些方面产生影响、如何产生影响。本文第一章主要论述了《保险法》及其司法解释能够对海上保险法产生影响的根本原因、内在原因、客观原因和直接原因；本文第二章主要探讨了《保险法》及其司法解释对海上保险合同订立的影响。它主要体现在两个方面,一是《保险法》及其司法解释能够帮助扩大海上保险合同缔约人范围,即允许投保人订立海上保险合同；二是《保险法》及其司法解释能够丰富海上保险合同基本条款。本文第三章主要研究了《保险法》及其司法解释对海上保险合同解除的影响。一方面,《保险法》及其司法解释能够弥补《海商法》的漏洞,禁止保险人行使合同任意解除权；另一方面,《保险法》及其司法解释可以延长海上被保险人任意解除权的行使期限。本文第四章主要分析了《保险法》及其司法解释对海上保险人代位求偿权的行使限度、行使对象、获赔前后放弃对第三人权利产生的不同后果以及诉讼时效起算时间等方面的影响。结语部分主要总结了《海商法》实施以来的成就以及当前存在的问题,《保险法》及其司法解释对海上保险的影响,并对《海商法》的修改工作做出展望。
[Abstract]:The Maritime Law is the most important law to adjust the marine insurance relationship, and the relationship between it and the land insurance law is the focus that we should pay attention to. In our country, Insurance Law and its judicial interpretation can influence marine insurance contract. This is mainly because the insurance legislation of our country adopts the "monism" method. Compared with the marine insurance law, the Insurance Law is a general law applicable to all commercial insurance except agricultural insurance. In addition, the relative autologous nature of the marine insurance law in China, the weakness of the theoretical basis and the inevitable lag after the application of the marine insurance law for more than 20 years are also the important reasons why the Insurance Law can play an important role in the field of marine insurance. At present, the social environment of our country has changed greatly. In recent years, the legislative level of our country has been improved, the judicial practice ability has been improved, the research of the law of law has been further deepened, and many achievements have been made in the construction of the rule of law, and the voice of revising the Maritime Law has become stronger and stronger. Among them, the conclusion of marine insurance contract, the termination of marine insurance contract and the subrogation right of marine insurer are all the key points and difficulties in amending Maritime Law. In comparison, the relevant provisions of the Insurance Law can continuously absorb the academic research results and constantly adapt to the needs of social development, and play an important role in guiding and referencing the revision of the Maritime Law. However, the amendments to the Maritime Code were not on the agenda of the National Legislative Council in view of the priority given to the use of limited legislative resources. 2 in this case, The difficulties and bottlenecks encountered in the application of maritime insurance laws and regulations can only find a breakthrough from the correct application of the Insurance Law and its judicial interpretation, and the exertion of the influence of the Insurance Law and its judicial interpretation on marine insurance contracts. There are six parts in this paper. The introduction mainly analyzes the significance of the study on the impact of the Insurance Law and its judicial interpretation on marine insurance, the possible impact of the Insurance Law and its judicial interpretation on marine insurance, and how to influence it. The first chapter mainly discusses the fundamental reasons, internal reasons, objective reasons and direct causes that the insurance law and its judicial interpretation can influence the marine insurance law. The second chapter mainly discusses the influence of Insurance Law and its judicial interpretation on the conclusion of marine insurance contract. It is mainly embodied in two aspects: first, the Insurance Law and its judicial interpretation can help to expand the scope of the contracting parties of marine insurance contracts, that is, to allow policy holders to conclude marine insurance contracts; Second, the Insurance Law and its judicial interpretation can enrich the basic terms of marine insurance contract. The third chapter mainly studies the influence of Insurance Law and its judicial interpretation on the termination of marine insurance contract. On the one hand, the Insurance Law and its judicial interpretation can make up the loophole of the Maritime Law and prohibit the insurer from exercising the right to rescind the contract arbitrarily. On the other hand, the Insurance Law and its judicial interpretation can prolong the period of exercise of the right of arbitrary discharge of the insured at sea. The fourth chapter mainly analyzes the limit and object of the law of insurance and its judicial interpretation on the exercise of subrogation right of marine insurer. The different consequences of waiving the right of the third party before and after the indemnity and the time of limitation. The conclusion part mainly summarizes the achievements since the implementation of the Maritime Law and the existing problems, the impact of the Insurance Law and its judicial interpretation on marine insurance, and the prospects for the revision of the Maritime Code.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
[Abstract]:The Maritime Law is the most important law to adjust the marine insurance relationship, and the relationship between it and the land insurance law is the focus that we should pay attention to. In our country, Insurance Law and its judicial interpretation can influence marine insurance contract. This is mainly because the insurance legislation of our country adopts the "monism" method. Compared with the marine insurance law, the Insurance Law is a general law applicable to all commercial insurance except agricultural insurance. In addition, the relative autologous nature of the marine insurance law in China, the weakness of the theoretical basis and the inevitable lag after the application of the marine insurance law for more than 20 years are also the important reasons why the Insurance Law can play an important role in the field of marine insurance. At present, the social environment of our country has changed greatly. In recent years, the legislative level of our country has been improved, the judicial practice ability has been improved, the research of the law of law has been further deepened, and many achievements have been made in the construction of the rule of law, and the voice of revising the Maritime Law has become stronger and stronger. Among them, the conclusion of marine insurance contract, the termination of marine insurance contract and the subrogation right of marine insurer are all the key points and difficulties in amending Maritime Law. In comparison, the relevant provisions of the Insurance Law can continuously absorb the academic research results and constantly adapt to the needs of social development, and play an important role in guiding and referencing the revision of the Maritime Law. However, the amendments to the Maritime Code were not on the agenda of the National Legislative Council in view of the priority given to the use of limited legislative resources. 2 in this case, The difficulties and bottlenecks encountered in the application of maritime insurance laws and regulations can only find a breakthrough from the correct application of the Insurance Law and its judicial interpretation, and the exertion of the influence of the Insurance Law and its judicial interpretation on marine insurance contracts. There are six parts in this paper. The introduction mainly analyzes the significance of the study on the impact of the Insurance Law and its judicial interpretation on marine insurance, the possible impact of the Insurance Law and its judicial interpretation on marine insurance, and how to influence it. The first chapter mainly discusses the fundamental reasons, internal reasons, objective reasons and direct causes that the insurance law and its judicial interpretation can influence the marine insurance law. The second chapter mainly discusses the influence of Insurance Law and its judicial interpretation on the conclusion of marine insurance contract. It is mainly embodied in two aspects: first, the Insurance Law and its judicial interpretation can help to expand the scope of the contracting parties of marine insurance contracts, that is, to allow policy holders to conclude marine insurance contracts; Second, the Insurance Law and its judicial interpretation can enrich the basic terms of marine insurance contract. The third chapter mainly studies the influence of Insurance Law and its judicial interpretation on the termination of marine insurance contract. On the one hand, the Insurance Law and its judicial interpretation can make up the loophole of the Maritime Law and prohibit the insurer from exercising the right to rescind the contract arbitrarily. On the other hand, the Insurance Law and its judicial interpretation can prolong the period of exercise of the right of arbitrary discharge of the insured at sea. The fourth chapter mainly analyzes the limit and object of the law of insurance and its judicial interpretation on the exercise of subrogation right of marine insurer. The different consequences of waiving the right of the third party before and after the indemnity and the time of limitation. The conclusion part mainly summarizes the achievements since the implementation of the Maritime Law and the existing problems, the impact of the Insurance Law and its judicial interpretation on marine insurance, and the prospects for the revision of the Maritime Code.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
【参考文献】
相关期刊论文 前4条
1 邢海宝;;中国海上保险法律的修改[J];法学家;2004年03期
2 周s，
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