保险法近因原则研究

发布时间：2018-04-22 06:37

本文选题：近因 + 近因原则　；参考：《吉林大学》2011年博士论文

【摘要】：保险法近因原则研究近因原则产生于英国的18、19世纪。几个世纪以来,近因原则一直作为国际保险理赔业务中公认的基本原则之一,主要用于判定承保风险与承保损失之间的因果关系。长期的实践中积累了大量的保险理赔经验和判例,并在各国的保险立法上均以法律形式明确规定。近因原则的含义是,保险人对因为承保风险为近因所造成的损失承担赔付责任,非因承保风险为近因所造成的损失不承担赔付责任。近因原则经过几个世纪的发展与研究逐渐形成了自己的判定标准、理论基础和适用规则,尤其在保险理赔的诉讼中判定因果关系、确定保险责任和范围发挥了极为重要的作用。当今世界绝大数国家的立法与实践中基本上都采纳、适用了近因原则的理念。然而在我国的保险立法中,无论是《保险法》,还是《海商法》,都没有明确规定近因原则,实践中近因原则也只能作为一种惯例,参考适用,并没有明确的法律地位。因此,近因原则在我国保险法学理论与实践中是值得深入研究和探讨的问题。第一章,首先,以条件和原因作为铺垫,论述了哲学和法学中原因的不同含义,并明确了法律上的原因才是近因。随后,分别从含义、特征和具有代表性的案例中逐渐明确了近因的内涵。通过近因和相似概念之比较,进一步界定了近因的内涵和外延。其次,以近因的判断标准“时空标准”、“效力标准”、“链条规则”“常识标准”为线索,介绍了近因判断标准的演变过程。在近因判断标准的基础上,逐渐形成了一套认定近因的原则,以便在实践中更好的确定近因。再次,在近因的基础上,根据近因的标准去判定数个原因中,哪个原因是近因,在事故引起标的的灭失或损坏时,为了分清与事故有关各方的责任,明确因果关系找出近因,近因原则孕育而生。经过几个世纪的发展逐渐形成了“合理诿因原则”、“原因力理论”、“比例因果关系理论”和“分摊原则”等新的理论和研究方法,为我们呈现出了近因原则的产生及历史发展的清晰脉络。最后,简述了近因原则在保险理论与实践中的重要功能以及对于保险功能的实现和保险业的发展所具有的价值意义。第二章,阐述了近因原则的理论基础。以因果关系理论作为近因原则理论基础的背景出发,分别界定了哲学范畴中的因果关系理论、刑法领域中的因果关系理论和民法领域中的因果关系理论,并与之比较,明确了差异,进一步缩小和确定了近因原则的理论基础,即民法中的因果关系理论。近因原则根植于民法因果关系理论,是民法因果关系理论在保险领域的具体运用,研究近因原则必然绕不开对民法因果关系理论的梳理和分析,笔者以民法中的因果关系理论为基础,分别以大陆法系和英美法系中因果关系理论为两条主线出发,分别介绍了各自法系中的代表性观点和理论学说,如条件说、相当因果关系说、实质要素规则、直接结果理论、可预见性理论等,对其加以评析,并分析了两大法系中因果关系理论的趋同性和差异性。在研究近因原则的时候,一般将近因原则看作因果关系理论的范畴,二者是特殊与一般的关系,当然两者必定会有联系和区别,通过近因原则和因果关系理论的比较,可以使我们更好的了解和把握近因原则的特点,即侧重于保险责任是否成立的问题,不考虑过错、违法性等因素,在原因范围与赔偿范围上有其特定性等。第三章,分析了近因原则适用的司法规则。保险实践中的情况大多是复杂的,造成损失的原因也是多种多样的,可能是单一原因致损,也可能是多种原因致损,可能是承保风险范围,也可能是除外风险或是保单未提及风险,如何在具体情况下准确寻找近因是重中之重的问题。笔者主要从单一原因致损、多因连续发生、多因间断发生、多因同时发生这四种情况分析,分别阐述了不同情形下近因原则的具体适用规则,使抽象的原则具体化,并在阐述过程中结合大量的经典判例,力求对规则的分析准确、清晰。然而具体适用规则只是近因原则适用的一般方法,在具体案件的应用中,笔者分析了近因原则的适用还可能受到诸如法官的自由裁量权、保险合同的条款、保险责任期间等的限制,从而影响到保险责任的认定和范围。第四章,分析了近因原则的举证责任问题。当保险人与被保险人对近因的认定产生分歧时,双方就会诉诸法院,如何准确适用近因原则涉及举证责任的分配问题。当然,之所以保险诉讼中举证责任有如此重要的位置是与它的特殊性及其成因分不开的。笔者结合我国保险诉讼中举证责任的法律规定,在遵循“谁主张,谁举证”的一般原则基础上,逐步分析了举证责任的具体分配规则。尤其涉及到除外责任、承保风险、保险责任范围和证据平衡等问题时,如何来分配近因的举证责任就更显重要。第五章,论述了近因原则的现状,并提出了若干具体的建议。分析了适用传统近因原则的缺陷,因为侧重于保护保险人的利益,而对保险范围的限定过于严格,近因原则也成为保险人逃避责任的一种手段,损害了被保险人的合法权益,导致利益失衡,所以传统近因原则的理论亟待提升。在介绍了我国当前保险法近因原则的现状及缺失的背景基础上,笔者阐明了我国保险立法中确立近因原则的必要性,并应重视近因原则的司法适用,对如何适用近因原则,以促进我国保险业的健康发展提出了自己的思考建议。
[Abstract]:Study on the principle of the proximate cause of insurance law
The principle of proximate cause came into being in the 18,19 century in Britain. For centuries, the principle of proximate cause has been one of the basic principles recognized in the international insurance claims business. It is mainly used to determine the causal relationship between underwriting risk and underwriting loss. In the long term, a large amount of insurance claims experience and precedents have been accumulated and insurance legislation in various countries. The meaning of the principle of proximate cause is that the insurer is responsible for the loss caused by the risk of underwriting as a proximate cause, and is not responsible for the loss caused by the risk of underwriting. The principle of proximate cause has gradually formed its own criteria and theoretical basis after several centuries of development and research. It is very important to determine the causal relationship and determine the liability and scope of insurance, especially in the litigation of insurance claims. It is basically adopted in the legislation and practice of the vast number of countries in the world today and applies the concept of the principle of proximate cause. However, in the insurance legislation of our country, whether it is the insurance law or the maritime law, There is no clear regulation of the principle of proximate cause. The principle of proximate cause in practice can only be used as a practice, reference is applicable, and there is no clear legal status. Therefore, the principle of proximate cause is a problem worthy of in-depth study and discussion in the theory and practice of China's Insurance law.
The first chapter, first, takes conditions and reasons as paving, discusses the different meanings of reasons in philosophy and law, and makes clear the reasons for the legal reason. Then, the connotation of the near cause is gradually clarified from the meanings, characteristics and representative cases, and the inner cause is further defined through the comparison of the near cause and the similar concept. Secondly, based on the judgment standard of the near cause, the standard of time and space, the standard of effectiveness, the chain rule and the common sense standard, the evolution process of the standard of proximate cause is introduced. On the basis of the standard of proximate cause, a set of original rules for determining the proximate cause is gradually formed so that the near cause can be better determined in practice. Again, On the basis of the near cause, according to the standard of the near cause, which is the proximate cause, which is the proximate cause; in the case of the loss or damage caused by the accident, in order to distinguish the responsibility of the parties concerned, the cause and effect relationship is found out, the principle of proximate cause is conceived. The theory of cause force, the theory of proportional causality and the principle of apportionment have shown a clear vein of the generation of the principle of proximate cause and the development of history. Finally, the important functions of the principle of close cause in the theory and practice of insurance are briefly described, and the realization of the insurance function and the development of the insurance industry are also described. The value of it.
In the second chapter, the theoretical basis of the principle of proximate cause is expounded. Based on the theory of causality as the basis of the principle of proximate cause, it defines the theory of causality in the philosophical category, the theory of causality in the field of criminal law and the theory of causality in the field of civil law, and compares it with the theory of causality in the field of civil law. The theoretical basis of the principle of proximate cause is the theory of causality in civil law. The principle of proximate cause is rooted in the theory of civil law and effect. It is the concrete application of the theory of causation in civil law in the field of insurance. The study of the principle of proximate cause is inevitable to comb and analyze the theory of causality in civil law. On the basis of two main lines in the continental law system and the causality theory of the Anglo American law system, the representative views and theories in the respective legal systems are introduced, such as conditions, the theory of substantial cause and effect, the principle of essential elements, the theory of direct result, the theory of predictability, etc., and the analysis of the cause and effect relationship in the two legal systems. In the study of the principle of proximate cause, the principle of proximate cause is generally regarded as the category of the theory of causality. The two is a special and general relationship. Of course, there must be a connection and distinction between them. By comparison of the principle of proximate cause and the theory of causality, we can better understand and grasp the characteristics of the principle of proximate cause. That is to say, whether the insurance liability is established or not, and the factors such as fault, illegality and so on, have their specific reasons in the scope of the cause of compensation and the scope of compensation.
The third chapter analyzes the judicial rules applicable to the principle of proximate cause. Most of the cases in the insurance practice are complex, and the cause of the loss is also varied. It may be a single cause and may be a damage to a variety of reasons. It may be the scope of the insurance risk, or the external risk or the policy without reference to the risk. It is a serious problem to find the exact proximate cause of the near cause. The author mainly from the single cause, the multi cause continuous occurrence, the multi cause discontinuous occurrence, the multiple causes and the simultaneous occurrence of these four cases, respectively expounds the specific application rules of the principle of near cause under different circumstances, so that the abstract principle is physical, and a large number of classical cases are combined in the process of elaboration. In the application of specific cases, the author analyses that the application of the principle of proximate cause may be limited by the discretion of the judge, the terms of the insurance contract and the term of the term of the insurance liability, thus affecting the recognition of the insurance liability. Set and range.
The fourth chapter analyzes the problem of the burden of proof in the near cause principle. When the insurer and the insured have disagreement on the identification of the proximate cause, the two parties will resort to the court, and how to apply the principle of close cause to the distribution of the burden of proof. Of course, the reason why the burden of proof in the insurance litigation is so important is its particularity and its particularity. In accordance with the legal provisions of the burden of proof in our insurance litigation, the author gradually analyzes the specific distribution rules of the burden of proof on the basis of the general principle of "who advocates, who raises evidence". In particular, how to distribute the proximate cause when the exception, the insurance risk, the insurance liability and the balance of evidence are involved. The burden of proof is more important.
The fifth chapter expounds the current situation of the principle of proximate cause and puts forward some specific suggestions. It analyzes the defects of the application of the traditional proximate cause principle, because it focuses on protecting the interests of the insurer and is too strict on the scope of the insurance. The principle of proximate cause has also become a means of escaping the liability of the insurer, resulting in damage to the legitimate rights and interests of the insured. The theory of the traditional proximate cause principle needs to be promoted urgently. On the basis of introducing the current situation of the current insurance law and the lack of background, the author clarifies the necessity of establishing the principle of proximate cause in our country's insurance legislation, and should attach importance to the judicial application of the principle of proximate cause, and how to apply the principle of proximate cause so as to promote the insurance of our country. The healthy development of the industry has put forward its own thoughts and suggestions.

【学位授予单位】：吉林大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D922.284

【引证文献】