海上保险告知义务的保险人抗辩法律问题研究
发布时间：2018-08-26 13:51
【摘要】：海上保险告知义务是海上保险法中的重要制度之一,其能够促进海上保险业的顺利发展。这一制度存在的目的是保护海上运输早期处于劣势地位的保险人的利益,保证保险人不会因被保险人对标的物信息披露不全面而承担更多的责任,最终兼顾保险合同双方在合同中地位的平衡。随着科技的发展,保险人拥有足够能力去了解保险标的的信息,双方地位的差异性得到改善。与此同时,保险人为了推卸责任拒绝赔偿,往往会利用自己对专业知识的掌握提出被保险人违反告知义务的抗辩。这一现状带来结果是使得告知义务制度沦为了保险人恶意抗辩的工具,与海上保险的最大诚信原则的宗旨和原则相违背。因此,本文试图对告知义务下保险人的抗辩制度进行研究,对保险人合理抗辩进行指引,进而减少海上保险纠纷。同时对保险人的救济方式进行讨论,避免保险人随意滥用救济方式损害被保险人的利益,并寻找最为合理的救济方式,并对我国法下的相关规定提供一定的借鉴作用。本文运用比较研究方法,主要是参照海上保险业发达的英国《1906年海上保险法》的规定及相关判例,对被保险人违反告知义务时保险人的抗辩制度进行研究论文共分绪论、正文、结论三部分。其中,正文部分包括四方面内容:第一章阐述了海上保险下告知义务的基本理论,主要从告知义务的背景、定义、法律性质以及履行主体、履行范围、违反告知义务造成的法律后果等几方面解析,作为全文的基础。第二章是本文的重点,未告知是保险人援用最为频繁的抗辩,主要从认定标准方面分析保险人的抗辩,包括客观方面的“重要情况”认定和主观方面的“知悉或应当知悉”规则,对客观层面进行论述时主要借鉴英国法下的“决定性影响”标准、“纯粹性影响”标准、“谨慎保险人”标准以及实际诱导规则,并对各种标准的利弊进行分析。第三章主要是法律对保险人抗辩的限制即从弃权和禁止反言两方面进行论述。该章论述主要是对保险人滥用抗辩的限制性规定,平衡保险合同双方的利益。第四章是对保险人抗辩的救济方式的探讨,保险人的救济模式经历了从传统到现代的改变。通过分析各种救济模式对我国《海商法》下的保险人救济方式提供借鉴,完善我国《海商法》第223条的规定。
[Abstract]:The obligation to inform marine insurance is one of the important systems in marine insurance law, which can promote the smooth development of marine insurance industry. The purpose of this system is to protect the interests of the underwriters who were at a disadvantage in the early stage of maritime transport, and to ensure that the insurer will not assume more responsibility for the incomplete disclosure of the subject-matter information by the insured. Finally, the balance of the position of the two parties in the contract is taken into account. With the development of science and technology, the insurer has enough ability to understand the information of the subject matter of insurance, and the difference between the two sides is improved. At the same time, in order to shirk the responsibility and refuse to compensate, the insurer often makes use of its own professional knowledge to raise the defense that the insured violates the obligation of informing. The result of the present situation is that the obligation of notification becomes the instrument of the insurer's malicious defense, which is contrary to the tenet and principle of the principle of maximum good faith of marine insurance. Therefore, this paper attempts to study the defense system of the insurer under the obligation of notification, and to guide the insurer's reasonable defense so as to reduce the maritime insurance disputes. At the same time, the relief way of the insurer is discussed to avoid the insurer from harming the insurant's interests by abusing the relief method at will, and to find the most reasonable relief method, and to provide some reference for the relevant provisions under the law of our country. This paper applies comparative research methods, mainly referring to the provisions of the British Marine Insurance Law of 1906 and relevant cases, and carries on the research on the defense system of the insured in case of breach of the obligation of informing, which is divided into two parts: introduction, main text, Conclusion three parts. Among them, the text part includes four aspects: the first chapter describes the basic theory of the obligation of notification under marine insurance, mainly from the background, definition, legal nature, the subject of performance, the scope of performance. The legal consequences caused by breach of the obligation of notification are analyzed as the basis of the full text. The second chapter is the focus of this article, not informing the insurer is the most frequently used defense, mainly from the identification of the standard analysis of the insurer's defense, Including "important information" in objective aspect and "know or ought to know" rule in subjective aspect. When dealing with objective aspect, it mainly draws lessons from the "decisive influence" standard and "pure influence" standard under British law. The standard of "prudent insurer" and the practical inducement rule, and the advantages and disadvantages of these standards are analyzed. The third chapter mainly discusses the limitation of the insurer's defense from two aspects: abstaining and estoppel. This chapter mainly deals with the restrictive provisions of the insurer's abuse of defences, balancing the interests of both sides of the insurance contract. The fourth chapter discusses the relief mode of the insurer's defense, the relief mode of the insurer has changed from tradition to modern. Through the analysis of various relief modes to provide reference for the insurer relief under the Maritime Law of China, the article 223 of the Maritime Law of China is perfected.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
本文编号：2205062
[Abstract]:The obligation to inform marine insurance is one of the important systems in marine insurance law, which can promote the smooth development of marine insurance industry. The purpose of this system is to protect the interests of the underwriters who were at a disadvantage in the early stage of maritime transport, and to ensure that the insurer will not assume more responsibility for the incomplete disclosure of the subject-matter information by the insured. Finally, the balance of the position of the two parties in the contract is taken into account. With the development of science and technology, the insurer has enough ability to understand the information of the subject matter of insurance, and the difference between the two sides is improved. At the same time, in order to shirk the responsibility and refuse to compensate, the insurer often makes use of its own professional knowledge to raise the defense that the insured violates the obligation of informing. The result of the present situation is that the obligation of notification becomes the instrument of the insurer's malicious defense, which is contrary to the tenet and principle of the principle of maximum good faith of marine insurance. Therefore, this paper attempts to study the defense system of the insurer under the obligation of notification, and to guide the insurer's reasonable defense so as to reduce the maritime insurance disputes. At the same time, the relief way of the insurer is discussed to avoid the insurer from harming the insurant's interests by abusing the relief method at will, and to find the most reasonable relief method, and to provide some reference for the relevant provisions under the law of our country. This paper applies comparative research methods, mainly referring to the provisions of the British Marine Insurance Law of 1906 and relevant cases, and carries on the research on the defense system of the insured in case of breach of the obligation of informing, which is divided into two parts: introduction, main text, Conclusion three parts. Among them, the text part includes four aspects: the first chapter describes the basic theory of the obligation of notification under marine insurance, mainly from the background, definition, legal nature, the subject of performance, the scope of performance. The legal consequences caused by breach of the obligation of notification are analyzed as the basis of the full text. The second chapter is the focus of this article, not informing the insurer is the most frequently used defense, mainly from the identification of the standard analysis of the insurer's defense, Including "important information" in objective aspect and "know or ought to know" rule in subjective aspect. When dealing with objective aspect, it mainly draws lessons from the "decisive influence" standard and "pure influence" standard under British law. The standard of "prudent insurer" and the practical inducement rule, and the advantages and disadvantages of these standards are analyzed. The third chapter mainly discusses the limitation of the insurer's defense from two aspects: abstaining and estoppel. This chapter mainly deals with the restrictive provisions of the insurer's abuse of defences, balancing the interests of both sides of the insurance contract. The fourth chapter discusses the relief mode of the insurer's defense, the relief mode of the insurer has changed from tradition to modern. Through the analysis of various relief modes to provide reference for the insurer relief under the Maritime Law of China, the article 223 of the Maritime Law of China is perfected.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
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