我国保险合同复效制度研究
发布时间：2019-03-28 18:12
【摘要】：随着社会的进步,保险这个名词越来越频繁的出现到普通百姓的生活中,人们开始关注保险,了解保险,并希望通过保险这一商业行为来减少生活中可能遇到的风险,因此出现了越来越多的保险法律问题,保险也越来越受到法学界和法律工作者的关注,而其中人身保险合同复效制度就是一个重要的关注点。人身保险合同的持续时间普遍都比较长,在这个过程中,难免会出现因投保人一时的疏忽或者因为其他原因而未及时缴纳保费的情况,这样很可能会造成原保险合同中止。复效制度的设立目的就是为了避免投保人长期投资利益受损,平衡保险合同双方的利益,追求双方利益的最大化。2009年10月1日,重新修订保险法正式施行。该法的正式施行,不仅仅是我国保险法发展的巨大进步,也是完善我国市场经济法律体系的重要措施。对于规范投保人、保险人、被保险人的行为,保护其合法权益,加大对保险行业的监管,促进保险行业的进一步发展起到了深刻而长远的影响。但是法律的生命在于实施。针对保险实务中遇到的问题,有关部门又发布了一系列的配套措施,如《保险公司管理规定》、《保险专业代理机构监管规定》、《保险公估机构监管规定》等,这些规定既提高其可操作性,又解决了很多保险实务中的问题。复效制度作为一项特有制度被明确规定在我国《保险法》第三十六、第三十七条中,但是由于内容比较简略,并不利于实际操作,且在实务应用过程中出现了很多问题,因此最高人民法院又在《保险法解释(三)》第八条对遇到的问题作出了明确的规定。本文采取法解释学、比较研究等写作方法,以我国现行的保险法和保险法司法解释作为基础,同时参考美国、日本、我国台湾地区等国家地区的立法和司法实务,对保险合同的中止制度、复效制度等进行解释分析,同时提出一些更适合当前保险实务的意见。本文共分成四个部分。第一部分具体阐述保险合同复效制度的含义,复效后保险合同的法律性质,以及复效制度的立法价值。第二部分,是本文最重要的一部分。通过对保险法第三十六和三十七条进行文理解释,来阐明中止制度和宽限期制度是什么、保险合同复效的适用程序、复效期间经过的法律效果、复效制度与自杀条款、以及补缴保险费和利息的问题,通过多个角度的具体阐述,可以更好的理解我国保险合同复效制度的规定。第三部分,也是本文重点介绍的一部分。通过对《保险法司法解释(三)》第八条的规定和保险实务进行分析,提出了“被保险人的危险程度显著增加”、“中止期间”的认定困难等问题,为保险实务如何适用该司法解释的规定,提供了一些帮助。第四章,是总结本文的观点,得出结论,并针对具体问题,提出一些有建设性的建议与法律修改方案。
[Abstract]:With the progress of society, the term "insurance" appears more and more frequently in the lives of ordinary people. People begin to pay attention to insurance, understand insurance, and hope to reduce the risks that may be encountered in life through the commercial behavior of insurance. Therefore, there are more and more legal problems of insurance, and insurance has been paid more and more attention by law scholars and legal workers, and the rehabilitation system of personal insurance contracts is an important concern. The duration of the life insurance contract is generally relatively long, in this process, it is inevitable that due to the temporary negligence of the policy-holder or due to other reasons and not pay the premium in time, this may lead to the termination of the original insurance contract. The purpose of the rehabilitation system is to avoid damage to the long-term investment interests of the insured, to balance the interests of both sides of the insurance contract, and to pursue the maximization of the interests of both sides. On October 1, 2009, the insurance law was re-amended and formally put into effect. The formal implementation of this law is not only a great progress in the development of China's insurance law, but also an important measure to perfect the legal system of China's market economy. To regulate the behavior of the insured, the insurer and the insured, to protect their legitimate rights and interests, to strengthen the supervision of the insurance industry, to promote the further development of the insurance industry has played a profound and long-term impact. But the life of the law lies in enforcement. In view of the problems encountered in insurance practice, the relevant departments have also issued a series of supporting measures, such as the regulations on the Management of Insurance companies, the regulations on Supervision of specialized Insurance agencies, and the regulations on Supervision of Insurance Appraisal institutions, and so on. These regulations not only improve its maneuverability, but also solve many problems in insurance practice. As a unique system, the compound effect system is clearly stipulated in articles 36 and 37 of the Insurance Law of our country, but because of its relatively simple content, it is not conducive to practical operation, and there are many problems in the process of practical application. Therefore, the Supreme people's Court also made clear provisions on the problems encountered in Article 8 of interpretation of Insurance Law. This paper adopts the methods of legal hermeneutics and comparative study, based on the current insurance law and judicial interpretation of insurance law in our country, and makes reference to the legislative and judicial practice of the United States, Japan, Taiwan and other countries in the United States, Japan, Taiwan and other countries. This paper explains and analyzes the suspension system and the effect system of insurance contract, and puts forward some suggestions which are more suitable for the current insurance practice. This paper is divided into four parts. The first part expounds the meaning of the system of the effect of insurance contract, the legal nature of the insurance contract after the effect, and the legislative value of the system. The second part is the most important part of this paper. By interpreting articles 36 and 37 of the Insurance Law, this paper clarifies what the suspension system and the grace period system are, the applicable procedures for the reinstatement of insurance contracts, the legal effects passed during the period of reinstatement, the rehabilitation system and the suicide clause, As well as the issue of premium and interest, through the specific elaboration of many angles, we can better understand the provisions of China's insurance contract effect system. The third part is also the key part of this article. Based on the analysis of the provisions of Article 8 of the Judicial interpretation of Insurance Law (3) and the insurance practice, this paper puts forward the problems of "the danger degree of the insured increasing significantly" and the difficulty in determining the "period of suspension", and so on. Some help has been provided for how insurance practice applies the provisions of this judicial interpretation. The fourth chapter is to summarize the point of view of this paper, draw a conclusion, and put forward some constructive suggestions and legal amendments to specific problems.
【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】：D922.284
本文编号：2449108
[Abstract]:With the progress of society, the term "insurance" appears more and more frequently in the lives of ordinary people. People begin to pay attention to insurance, understand insurance, and hope to reduce the risks that may be encountered in life through the commercial behavior of insurance. Therefore, there are more and more legal problems of insurance, and insurance has been paid more and more attention by law scholars and legal workers, and the rehabilitation system of personal insurance contracts is an important concern. The duration of the life insurance contract is generally relatively long, in this process, it is inevitable that due to the temporary negligence of the policy-holder or due to other reasons and not pay the premium in time, this may lead to the termination of the original insurance contract. The purpose of the rehabilitation system is to avoid damage to the long-term investment interests of the insured, to balance the interests of both sides of the insurance contract, and to pursue the maximization of the interests of both sides. On October 1, 2009, the insurance law was re-amended and formally put into effect. The formal implementation of this law is not only a great progress in the development of China's insurance law, but also an important measure to perfect the legal system of China's market economy. To regulate the behavior of the insured, the insurer and the insured, to protect their legitimate rights and interests, to strengthen the supervision of the insurance industry, to promote the further development of the insurance industry has played a profound and long-term impact. But the life of the law lies in enforcement. In view of the problems encountered in insurance practice, the relevant departments have also issued a series of supporting measures, such as the regulations on the Management of Insurance companies, the regulations on Supervision of specialized Insurance agencies, and the regulations on Supervision of Insurance Appraisal institutions, and so on. These regulations not only improve its maneuverability, but also solve many problems in insurance practice. As a unique system, the compound effect system is clearly stipulated in articles 36 and 37 of the Insurance Law of our country, but because of its relatively simple content, it is not conducive to practical operation, and there are many problems in the process of practical application. Therefore, the Supreme people's Court also made clear provisions on the problems encountered in Article 8 of interpretation of Insurance Law. This paper adopts the methods of legal hermeneutics and comparative study, based on the current insurance law and judicial interpretation of insurance law in our country, and makes reference to the legislative and judicial practice of the United States, Japan, Taiwan and other countries in the United States, Japan, Taiwan and other countries. This paper explains and analyzes the suspension system and the effect system of insurance contract, and puts forward some suggestions which are more suitable for the current insurance practice. This paper is divided into four parts. The first part expounds the meaning of the system of the effect of insurance contract, the legal nature of the insurance contract after the effect, and the legislative value of the system. The second part is the most important part of this paper. By interpreting articles 36 and 37 of the Insurance Law, this paper clarifies what the suspension system and the grace period system are, the applicable procedures for the reinstatement of insurance contracts, the legal effects passed during the period of reinstatement, the rehabilitation system and the suicide clause, As well as the issue of premium and interest, through the specific elaboration of many angles, we can better understand the provisions of China's insurance contract effect system. The third part is also the key part of this article. Based on the analysis of the provisions of Article 8 of the Judicial interpretation of Insurance Law (3) and the insurance practice, this paper puts forward the problems of "the danger degree of the insured increasing significantly" and the difficulty in determining the "period of suspension", and so on. Some help has been provided for how insurance practice applies the provisions of this judicial interpretation. The fourth chapter is to summarize the point of view of this paper, draw a conclusion, and put forward some constructive suggestions and legal amendments to specific problems.
【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】：D922.284
【参考文献】
相关期刊论文 前1条
1 张楠;;保险合同的复效问题研究[J];时代金融;2015年12期
相关硕士学位论文 前1条
1 张祥;人寿保险合同复效之研究[D];吉林大学;2009年
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