我国保险合同纠纷的非诉讼解决问题研究
发布时间:2018-12-17 15:01
【摘要】:保险合同纠纷非诉讼解决机制,关键就在于非诉讼三个字,具体的方式包括协商、调解等,通过一系列诉讼之外的手段解决保险纠纷,维护保险合同双方当事人的合法权益,促进保险行业的健康有序发展,促进社会公平和谐的制度。和域外非诉讼解决机制的构建和发展相比,由于我国保险行业起步比较晚,自然的也就导致了行业相关配套制度的起点也比较低。伴随着保险业的快速发展,起步阶段所没有遇到的问题也日益丛生、愈演愈烈,然而通过诉讼并没有很好的达到纠纷解决的初衷,这就直接引发了学者们关于建立非诉讼方式解决纠纷的研究。自然地,非诉讼方式的一些特质,如非对抗性、高效便捷、机会成本低等,得到了学者们的普遍关注。此外,纠纷的非诉讼解决也完全符合我国传统社会文化以及当前我国社会大众的共同理念:以和为贵。在保险纠纷非诉讼解决机制的构建上,笔者总结了我国国内江苏省的典型实践,同时还认真分析综合了域外保险市场发达的国家和地区如日本、新加坡、香港以及台湾的金融保险纠纷的非诉讼解决制度的优势和劣势,希望对于我国的保险纠纷非诉讼解决机制的构建与完善贡献自己的绵薄之力。笔者认为,在我国保险纠纷非诉讼解决机制构建时,我们应该从四个方面注意,以保证制度能够顺利落实,并有效解决保险纠纷双方的矛盾。一、法律地位的确立。从法律制度层面明确保险纠纷非诉讼解决的法律地位,清晰规定纠纷解决的组织结构、受案范围、工作流程、经费保障、裁决效力等内容,提高非诉讼解决机制的公信力;二、专门机构的设立。专门机构的设立,需要具有独立性和强制性,这就需要通过政府权力的授予来实现。人员构成上分为专业和非专业人员。专业人员可以是兼职的专家、学者、教授,也可以是全职人员。在经费上,专门机构可以不向被保险人或投保人收取费用,但保险人应该每年缴纳一定的费用;三、专门机构宣传。以日本为借鉴,通过设立咨询处、举办活动等传统方式和网站、新闻媒体等新媒体方式,宣传专门机构的功能、受案范围、工作流程以及代表性案例;四、监督机制的完善。保险行业协会、新闻媒体、中介机构、社会公众对于纠纷解决机构的工作积极监督。同时,纠纷处理机构可借力移动互联网技术,定期发布纠纷处理数据和业务报告,积极接受社会公众、第三方消费者维权组织等的监督。构建并完善我国保险纠纷非诉讼解决机制,不仅需要正确的理论指引,更需要扎实的落实执行。
[Abstract]:The key to the non-litigation settlement mechanism of insurance contract disputes lies in the non-litigation three words. The specific methods include consultation, mediation, and other means to resolve insurance disputes by means other than a series of litigation, so as to safeguard the legitimate rights and interests of both parties to an insurance contract. Promote the healthy and orderly development of the insurance industry, promote social justice and harmonious system. Compared with the construction and development of the extra-territorial non-litigation settlement mechanism, the insurance industry in our country started relatively late, which naturally led to a relatively low starting point of the relevant supporting system in the industry. With the rapid development of the insurance industry, the problems that have not been encountered in the initial stage have become increasingly numerous and intensified. However, the original intention of dispute resolution has not been well achieved through litigation. This directly triggered the scholars on the establishment of non-litigation methods to resolve disputes. Naturally, some characteristics of non-litigation, such as non-adversarial, efficient and convenient, and low opportunity cost, have attracted widespread attention of scholars. In addition, the non-litigation settlement of disputes is also in line with the traditional social culture and the common idea of the masses in our country: peace is the most important thing. On the construction of non-litigation settlement mechanism of insurance disputes, the author summarizes the typical practice of Jiangsu Province in China, and analyzes the countries and regions with developed insurance market abroad, such as Japan, Singapore, etc. The advantages and disadvantages of non-litigation settlement system of financial and insurance disputes in Hong Kong and Taiwan hope to contribute to the construction and perfection of non-litigation settlement mechanism of insurance disputes in China. The author believes that in the construction of non-litigation settlement mechanism of insurance disputes in China, we should pay attention from four aspects in order to ensure the smooth implementation of the system and to effectively resolve the contradictions between the two sides of the insurance dispute. First, the establishment of legal status. In order to improve the credibility of the non-litigation settlement mechanism, the legal status of non-litigation settlement of insurance disputes is clarified from the legal system level, and the organizational structure, the scope of the cases, the work flow, the financial security and the effectiveness of the adjudication are clearly defined. II. Establishment of specialized agencies. The establishment of specialized agencies needs to be independent and compulsory, and this needs to be achieved through the delegation of government power. The composition of personnel is divided into professional and non-professional personnel. Professionals can be part-time experts, academics, professors, or full-time staff. In fund, special agency can not charge to insurant or policy-holder, but underwriter ought to pay certain fee every year; 3, special agency propagandizes Japan for reference, through the establishment of advisory offices, activities and other traditional ways and websites, news media and other new media ways to publicize the functions of specialized agencies, the scope of cases, work processes and representative cases; fourth, the improvement of the supervision mechanism. Insurance industry associations, news media, intermediaries, and the public actively monitor the work of dispute resolution agencies. At the same time, dispute resolution agencies can take advantage of mobile Internet technology, regularly issue dispute resolution data and business reports, and actively accept supervision from the public and third-party consumer rights organizations. To construct and perfect the non-litigation settlement mechanism of insurance disputes in China requires not only correct theoretical guidance but also solid implementation.
【学位授予单位】:南京大学
【学位级别】:硕士
【学位授予年份】:2017
【分类号】:D922.284
,
本文编号:2384359
[Abstract]:The key to the non-litigation settlement mechanism of insurance contract disputes lies in the non-litigation three words. The specific methods include consultation, mediation, and other means to resolve insurance disputes by means other than a series of litigation, so as to safeguard the legitimate rights and interests of both parties to an insurance contract. Promote the healthy and orderly development of the insurance industry, promote social justice and harmonious system. Compared with the construction and development of the extra-territorial non-litigation settlement mechanism, the insurance industry in our country started relatively late, which naturally led to a relatively low starting point of the relevant supporting system in the industry. With the rapid development of the insurance industry, the problems that have not been encountered in the initial stage have become increasingly numerous and intensified. However, the original intention of dispute resolution has not been well achieved through litigation. This directly triggered the scholars on the establishment of non-litigation methods to resolve disputes. Naturally, some characteristics of non-litigation, such as non-adversarial, efficient and convenient, and low opportunity cost, have attracted widespread attention of scholars. In addition, the non-litigation settlement of disputes is also in line with the traditional social culture and the common idea of the masses in our country: peace is the most important thing. On the construction of non-litigation settlement mechanism of insurance disputes, the author summarizes the typical practice of Jiangsu Province in China, and analyzes the countries and regions with developed insurance market abroad, such as Japan, Singapore, etc. The advantages and disadvantages of non-litigation settlement system of financial and insurance disputes in Hong Kong and Taiwan hope to contribute to the construction and perfection of non-litigation settlement mechanism of insurance disputes in China. The author believes that in the construction of non-litigation settlement mechanism of insurance disputes in China, we should pay attention from four aspects in order to ensure the smooth implementation of the system and to effectively resolve the contradictions between the two sides of the insurance dispute. First, the establishment of legal status. In order to improve the credibility of the non-litigation settlement mechanism, the legal status of non-litigation settlement of insurance disputes is clarified from the legal system level, and the organizational structure, the scope of the cases, the work flow, the financial security and the effectiveness of the adjudication are clearly defined. II. Establishment of specialized agencies. The establishment of specialized agencies needs to be independent and compulsory, and this needs to be achieved through the delegation of government power. The composition of personnel is divided into professional and non-professional personnel. Professionals can be part-time experts, academics, professors, or full-time staff. In fund, special agency can not charge to insurant or policy-holder, but underwriter ought to pay certain fee every year; 3, special agency propagandizes Japan for reference, through the establishment of advisory offices, activities and other traditional ways and websites, news media and other new media ways to publicize the functions of specialized agencies, the scope of cases, work processes and representative cases; fourth, the improvement of the supervision mechanism. Insurance industry associations, news media, intermediaries, and the public actively monitor the work of dispute resolution agencies. At the same time, dispute resolution agencies can take advantage of mobile Internet technology, regularly issue dispute resolution data and business reports, and actively accept supervision from the public and third-party consumer rights organizations. To construct and perfect the non-litigation settlement mechanism of insurance disputes in China requires not only correct theoretical guidance but also solid implementation.
【学位授予单位】:南京大学
【学位级别】:硕士
【学位授予年份】:2017
【分类号】:D922.284
,
本文编号:2384359
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