保险合同免责条款的效力研究
发布时间：2019-05-16 20:55
【摘要】：我国《保险法》第17条对“免除保险人责任的条款”作出了原则性规定,学界对此规定的理解存在着诸多争议。而对具体保险合同中的免责条款的认定,应从实质上判断条款是否减轻或免除了保险人的责任。现实中保险合同免责条款的主要表现形式,包括除外责任条款、免赔条款等等,而《最高人民法院关于适用中华人民共和国保险法若干问题的解释(二)》对保险人解除保险合同的条款作出了不属于免责条款的规定。保险合同免责条款作为格式条款的常见形式,尽管因其免除或减轻了保险人的保险责任而备受争议,但该条款的存在是有其合理性的。无论是从保险合同的射幸性、信息不对称性的角度看,还是从保险人经营管理的角度看,抑或是从民法公平正义的角度看,保险合同免责条款都有其存在的必要性。保险合同免责条款虽然是保险合同的重要组成部分,但是免责条款发生效力的前提是,保险人作出足以引起投保人注意的提示和明确说明。提示义务作为保险人的一项独立的义务,应使免责条款可以和其他保险合同条款相区别,达到显著标识的程度；而明确说明义务在履行标准上应采用实质判断标准,即以保险相对人或其代理人对免责条款的实际理解作为判断说明义务履行与否的标’准。同时,可以采用以理性外行标准为主、投保人标准为辅的原则来判断保险人明确说明义务的履行与否,即原则上应达到普通知识水平和智力能力的社会主体能够理解的程度,同时兼顾智力缺陷、盲人、文盲等消费者的特殊情况。保险人的提示与说明义务也并非绝对的,在某些情况下是可以减轻或免除的。例如,保险人以法律、行政法规的禁止性规定作为免责事由的免责条款,其明确说明义务可以免除；经保险人和投保人充分协商确定的特约免责条款,保险人的明确说明义务也可免除；对于保险人已经明确说明过的免责条款,保险人的明确说明义务可以适当减轻。尽管如此,提示与说明义务作为保险人必须要履行的义务,对其履行的不到位,就会产生免责条款不发生效力的法律后果。保险人在履行了提示和明确说明义务之后,免责条款虽然已经订入到保险合同中,但这并不意味着免责条款是必然有效的。在判断免责条款的效力时,应采用合法性和合理性标准,合法性标准要求免责条款的内容应符合法律的强制性规定,不违反公序良俗；合理性标准则要求免责条款的内容应符合公平原则、诚实信用原则以及合理期待原则等。根据免责条款的效力评价标准,可以将免责条款的效力形态分为有效的免责条款和无效的免责条款。有效的免责条款需要满足保险合同有效的大前提,而无效的免责条款则是在《保险法》第19条规定的情形下,结合合法性和合理性原则进行具体的判断。
[Abstract]:Article 17 of the Insurance Law of our country makes the principle stipulation on the clause of exemption from the liability of the insurer, and there are many disputes about the understanding of this provision in the academic circles. In order to determine the exemption clause in the specific insurance contract, we should essentially judge whether the clause alleviates or waives the liability of the insurer. In reality, the main manifestations of the exemption clause of the insurance contract, including the exclusion clause, the exemption clause, and so on, The interpretation of the Supreme people's Court on the Application of the Insurance Law of the people's Republic of China (2) stipulates that the terms of the insurer's termination of the insurance contract do not belong to the exemption clause. As a common form of formal clause, the exemption clause of insurance contract is controversial because it waives or alleviates the insurer's insurance liability, but the existence of this clause is reasonable. It is necessary to exist the exemption clause of insurance contract from the point of view of survivability, information asymmetry, from the point of view of insurer management, or from the point of view of fairness and justice of civil law, whether it is from the point of view of survivability, information asymmetry, operation and management of insurer, or from the point of view of fairness and justice of civil law. Although the exemption clause of insurance contract is an important part of the insurance contract, the premise of the validity of the exemption clause is that the insurer makes a prompt and clear statement enough to attract the attention of the insured. As an independent obligation of the insurer, the obligation of prompt should make the exemption clause different from other terms of the insurance contract, and reach the degree of marked mark. On the other hand, the substantive judgment standard should be adopted in the performance standard of the clearly stated obligation, that is, the actual understanding of the exemption clause by the insurance counterpart or its agent should be taken as the criterion to judge whether the obligation is fulfilled or not. At the same time, we can use the principle of rational layman standard and policy holder standard as auxiliary to judge whether the insurer clearly states whether the obligation is fulfilled or not, that is, in principle, it should reach the level of general knowledge and the degree that the social subject of intellectual ability can understand. At the same time, the special situation of consumers, such as mental retardation, blind, illiterate and so on, is taken into account. The insurer's obligation to prompt and explain is not absolute, in some cases can be alleviated or exempted. For example, the insurer takes the prohibitive provisions of laws and administrative regulations as the exemption clause, which clearly states that the obligation can be exempted; The specific exemption clause determined by full negotiation between the insurer and the applicant may also be exempted from the express obligation of the insurer; for the exemption clause already clearly stated by the insurer, the explicit obligation of the insurer can be appropriately mitigated. However, as the obligation that the insurer must perform, if the obligation of prompt and explanation is not in place, there will be legal consequences that the exemption clause will not have effect. Although the exemption clause has been entered into the insurance contract after fulfilling the prompt and clear obligations of the insurer, this does not mean that the exemption clause is necessarily valid. When judging the validity of the exemption clause, the standards of legality and reasonableness should be adopted. The legality standard requires that the content of the exemption clause should conform to the mandatory provisions of the law and not violate the public order and good customs. The reasonableness standard requires that the content of the exemption clause should conform to the principle of fairness, the principle of good faith and the principle of reasonable expectation. According to the evaluation standard of the validity of the exemption clause, the effective form of the exemption clause can be divided into effective exemption clause and invalid exemption clause. The valid exemption clause needs to meet the premise of the validity of the insurance contract, while the invalid exemption clause is based on the principle of legality and reasonableness under the circumstances of Article 19 of the Insurance Law.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
[Abstract]:Article 17 of the Insurance Law of our country makes the principle stipulation on the clause of exemption from the liability of the insurer, and there are many disputes about the understanding of this provision in the academic circles. In order to determine the exemption clause in the specific insurance contract, we should essentially judge whether the clause alleviates or waives the liability of the insurer. In reality, the main manifestations of the exemption clause of the insurance contract, including the exclusion clause, the exemption clause, and so on, The interpretation of the Supreme people's Court on the Application of the Insurance Law of the people's Republic of China (2) stipulates that the terms of the insurer's termination of the insurance contract do not belong to the exemption clause. As a common form of formal clause, the exemption clause of insurance contract is controversial because it waives or alleviates the insurer's insurance liability, but the existence of this clause is reasonable. It is necessary to exist the exemption clause of insurance contract from the point of view of survivability, information asymmetry, from the point of view of insurer management, or from the point of view of fairness and justice of civil law, whether it is from the point of view of survivability, information asymmetry, operation and management of insurer, or from the point of view of fairness and justice of civil law. Although the exemption clause of insurance contract is an important part of the insurance contract, the premise of the validity of the exemption clause is that the insurer makes a prompt and clear statement enough to attract the attention of the insured. As an independent obligation of the insurer, the obligation of prompt should make the exemption clause different from other terms of the insurance contract, and reach the degree of marked mark. On the other hand, the substantive judgment standard should be adopted in the performance standard of the clearly stated obligation, that is, the actual understanding of the exemption clause by the insurance counterpart or its agent should be taken as the criterion to judge whether the obligation is fulfilled or not. At the same time, we can use the principle of rational layman standard and policy holder standard as auxiliary to judge whether the insurer clearly states whether the obligation is fulfilled or not, that is, in principle, it should reach the level of general knowledge and the degree that the social subject of intellectual ability can understand. At the same time, the special situation of consumers, such as mental retardation, blind, illiterate and so on, is taken into account. The insurer's obligation to prompt and explain is not absolute, in some cases can be alleviated or exempted. For example, the insurer takes the prohibitive provisions of laws and administrative regulations as the exemption clause, which clearly states that the obligation can be exempted; The specific exemption clause determined by full negotiation between the insurer and the applicant may also be exempted from the express obligation of the insurer; for the exemption clause already clearly stated by the insurer, the explicit obligation of the insurer can be appropriately mitigated. However, as the obligation that the insurer must perform, if the obligation of prompt and explanation is not in place, there will be legal consequences that the exemption clause will not have effect. Although the exemption clause has been entered into the insurance contract after fulfilling the prompt and clear obligations of the insurer, this does not mean that the exemption clause is necessarily valid. When judging the validity of the exemption clause, the standards of legality and reasonableness should be adopted. The legality standard requires that the content of the exemption clause should conform to the mandatory provisions of the law and not violate the public order and good customs. The reasonableness standard requires that the content of the exemption clause should conform to the principle of fairness, the principle of good faith and the principle of reasonable expectation. According to the evaluation standard of the validity of the exemption clause, the effective form of the exemption clause can be divided into effective exemption clause and invalid exemption clause. The valid exemption clause needs to meet the premise of the validity of the insurance contract, while the invalid exemption clause is based on the principle of legality and reasonableness under the circumstances of Article 19 of the Insurance Law.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
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