论海上保险合同中的最大诚信原则
发布时间：2018-10-21 12:39
【摘要】： 诚实信用原则是我国民法的一项基本原则。保险合同行为作为一项民事行为,合同双方应受该原则拘束。海上保险活动和保险合同的特殊性衍生了最大诚信原则。 目前,我国法律中尚无最大诚信原则的概念。那么,英国《1906年海上保险法》中的最大诚信原则在我国法律中是否有所体现呢?最大诚信原则与我国法律中的诚信原则有何联系和区别呢?我国法律中这方面的内容有无需要完善之处呢?带着这些疑问,笔者在文中论述了下列问题:民事法律基本原则的概况及其作用;海上保险合同中的最大诚信原则的起源及发展;最大诚信原则的基本问题;中英法律中关于最大诚信原则内容的比较;中国法中关于最大诚信原则的内容的不足及今后立法展望。 通过参阅大量的国内外学者的著作以及国外的判例,笔者认为,最大诚信原则实质上就是诚信原则,是诚信原则在海上保险合同制度中的运用和自然发展。它不仅适用于海上保险合同订立以前,也适用于海上保险合同订立以后;不仅对被保险人(投保人)的信息披露义务提出严格的要求,对保险人同样也课以严格的告知义务。我们在关注该原则对于被保险人严格要求同时,决不应忽视它对于保险人所规定的义务,因为,在现实的保险实践中,有些保险人往往利用其强大优势以及有些被保险人保险知识匮乏或者疏忽等原因,恶意造成被保险人违约,以达到获取非法利益的目的。另外,有限的法律条文不可能穷尽复杂纷争的大千世界的方方面面,因此,对于最大诚信原则的理解,决不应该仅仅局限于法律所规定的诸如告知义务等的具体内容,保险合同的双方当事人,都应该自觉遵守最大诚信原则。只有如此,才可以更好地保护交易安全,维护双方利益平衡,最大限度地实现法律的公平与正义。 至于如何完善我国的海上保险制度,笔者认为,应在我国《海商法》海上保险合同一章第一节中,加入有关最大诚信义务的原则性规定。当然,只有原则性的规定还是不够的,抽象的原则性规定应当具体化为合同双方各自明确的权利、义务。同时,建议我国立法者于《海商法》修改时,能够充分借鉴和吸收英国海上保险法中关于保证制度的规定,以充实我国相关的法律制度,使其更符合法理,更好地发挥指引当事人的行为和有利司法的作用。健全保险相关法律法规,加强监管。
[Abstract]:The principle of good faith is a basic principle of civil law in China. As a civil act, both parties should be bound by this principle. The particularity of marine insurance activities and insurance contracts gives rise to the principle of maximum good faith. At present, there is no concept of the principle of maximum good faith in Chinese law. So, is the principle of maximum good faith in the 1906 Marine Insurance Law embodied in the law of our country? What is the connection and difference between the principle of maximum good faith and the principle of good faith in Chinese law? Is there any need to improve this aspect of our law? With these questions, the author discusses the following problems: the general situation and function of the basic principles of civil law, the origin and development of the principle of maximum good faith in marine insurance contracts, the basic problems of the principle of maximum good faith; The comparison of the contents of the principle of maximum good faith in Chinese and British laws, the deficiency of the content of the principle of maximum good faith in Chinese law and the prospect of legislation in the future. By referring to a large number of domestic and foreign scholars' works and foreign precedents, the author holds that the principle of maximum good faith is essentially the principle of good faith, the application and natural development of the principle of good faith in the system of marine insurance contracts. It not only applies to the conclusion of the marine insurance contract, but also to the conclusion of the marine insurance contract; it not only puts forward strict requirements on the information disclosure obligation of the insured (policy holder), but also imposes strict disclosure obligation on the insurer. While we are concerned about the strict requirements of this principle for the insured, we should never lose sight of its obligations to the insurer, because, in the actual practice of insurance, Some insurers often take advantage of their strong advantages and some insured lack of insurance knowledge or negligence and other reasons malicious cause the insured breach of contract in order to achieve the purpose of obtaining illegal benefits. In addition, limited legal texts cannot exhaust all aspects of the world of complex disputes. Therefore, the understanding of the principle of maximum good faith should not be limited to the specific contents of such as the obligation to inform, as stipulated by law, Both parties to an insurance contract should consciously abide by the principle of maximum good faith. Only in this way, the transaction security can be better protected, the interests of both sides can be maintained, and the fairness and justice of the law can be realized to the maximum extent. As to how to perfect the marine insurance system of our country, the author thinks that we should add the principle stipulation about the maximum good faith obligation in the first section of the chapter of maritime insurance contract of our country "Maritime Law". Of course, only the stipulation of principle is not enough, the abstract stipulation of principle should be concretely translated into the specific rights and obligations of both parties. At the same time, it is suggested that when the Maritime Law is amended, Chinese legislators can draw lessons from and absorb the provisions of the guarantee system in the British Maritime Insurance Law, so as to enrich the relevant legal system of our country and make it more in line with the legal principles. Better play the role of guiding the behavior of the parties and conducive to the administration of justice. Improve insurance related laws and regulations, strengthen supervision.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.294
本文编号：2285115
[Abstract]:The principle of good faith is a basic principle of civil law in China. As a civil act, both parties should be bound by this principle. The particularity of marine insurance activities and insurance contracts gives rise to the principle of maximum good faith. At present, there is no concept of the principle of maximum good faith in Chinese law. So, is the principle of maximum good faith in the 1906 Marine Insurance Law embodied in the law of our country? What is the connection and difference between the principle of maximum good faith and the principle of good faith in Chinese law? Is there any need to improve this aspect of our law? With these questions, the author discusses the following problems: the general situation and function of the basic principles of civil law, the origin and development of the principle of maximum good faith in marine insurance contracts, the basic problems of the principle of maximum good faith; The comparison of the contents of the principle of maximum good faith in Chinese and British laws, the deficiency of the content of the principle of maximum good faith in Chinese law and the prospect of legislation in the future. By referring to a large number of domestic and foreign scholars' works and foreign precedents, the author holds that the principle of maximum good faith is essentially the principle of good faith, the application and natural development of the principle of good faith in the system of marine insurance contracts. It not only applies to the conclusion of the marine insurance contract, but also to the conclusion of the marine insurance contract; it not only puts forward strict requirements on the information disclosure obligation of the insured (policy holder), but also imposes strict disclosure obligation on the insurer. While we are concerned about the strict requirements of this principle for the insured, we should never lose sight of its obligations to the insurer, because, in the actual practice of insurance, Some insurers often take advantage of their strong advantages and some insured lack of insurance knowledge or negligence and other reasons malicious cause the insured breach of contract in order to achieve the purpose of obtaining illegal benefits. In addition, limited legal texts cannot exhaust all aspects of the world of complex disputes. Therefore, the understanding of the principle of maximum good faith should not be limited to the specific contents of such as the obligation to inform, as stipulated by law, Both parties to an insurance contract should consciously abide by the principle of maximum good faith. Only in this way, the transaction security can be better protected, the interests of both sides can be maintained, and the fairness and justice of the law can be realized to the maximum extent. As to how to perfect the marine insurance system of our country, the author thinks that we should add the principle stipulation about the maximum good faith obligation in the first section of the chapter of maritime insurance contract of our country "Maritime Law". Of course, only the stipulation of principle is not enough, the abstract stipulation of principle should be concretely translated into the specific rights and obligations of both parties. At the same time, it is suggested that when the Maritime Law is amended, Chinese legislators can draw lessons from and absorb the provisions of the guarantee system in the British Maritime Insurance Law, so as to enrich the relevant legal system of our country and make it more in line with the legal principles. Better play the role of guiding the behavior of the parties and conducive to the administration of justice. Improve insurance related laws and regulations, strengthen supervision.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.294
【引证文献】
相关期刊论文 前1条
1 田丽萍;;浅论保险法的最大诚信原则[J];法制与社会;2012年03期
相关硕士学位论文 前2条
1 王曼;保险利益原则研究[D];大连海事大学;2011年
2 邢小静;保险人明确说明义务的界定[D];兰州大学;2012年
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