保险合同保证条款制度研究
发布时间：2019-04-19 19:22
【摘要】： 保险合同中的保险保证条款具有悠久的历史并在英美法中运用广泛,但在我国保险业发展迅速的今天,由于我国保险法对保险保证规定的缺失,保险保证条款没有得到足够的重视,许多保险合同的纠纷都是源于保险保证条款产生的矛盾。但国内的研究焦点集中海上保险法中的保证制度,对非由海商法规制的普通保险合同的保证制度研究却不是很多。鉴于此,本文试图通过对保险合同保险保证的阐述,运用比较研究的方法,考察保险保证的合理性,并对我国保险法中的保险保证制度建立与完善提出自己的理解和建议。 本文分为四个部分。 第一部分主要从保险保证的内涵入手,分别阐述保险保证的基本概念、特征,并且通过相关概念的比较,明晰了保险保证的具体内涵以避免与担保保证、保证保险以及免责条款的混淆。 第二部分主要以保险保证的历史性考察和分类考察为主,阐述了早期与风险有关的真正的保证在保险保证发展过程中所起的积极作用,探讨了当前以合同约定的保证为内容的保险保证存在的问题。并将明示保证、默示保证、确认性保证以及承诺性保证这四种常见的保险保证类型作为考察的重点,分析了其存在的合理性以及面临的问题。 第三部分承接第二部分的合理性考察的内容,针对保险保证所面临的问题,引出法律规范保险保证的必要性。并以分析比较的方法提出了保险保证法律规范的具体制度,并从保险保证的内容规范、认定违反保证的规范、违反保证的后果的规范以及举证责任的规范四个角度进行阐述,此外,还将其与常见的格式条款的法律规范进行了简单的比较,阐明了保险保证法律规范的特点。 第四部分着重考察了我国保险法的保险保证制度的现状,通过对现有法律规定的保险保证的解读指出了我国保险保证制度不仅在海商法的海上保险部分存在缺失,而且在非海上保险领域的普通保险法中也存在疏漏。并从保险保证制度的缺失所造成的不利后的角度,简单论述了重视保险保证制度的必要性。最后对我国保险保证制度建立和完善提出了以明确保险保证的定义、适用形式、适用规则等为内容的建议。
[Abstract]:The insurance guarantee clause in the insurance contract has a long history and is widely used in the Anglo-American law. However, with the rapid development of the insurance industry in our country, due to the lack of the insurance guarantee provision in the insurance law of our country, Insurance guarantee clause has not been paid enough attention, many disputes of insurance contract originate from the contradiction of insurance guarantee clause. However, the domestic research focuses on the guarantee system in marine insurance law, but not a lot on the guarantee system of general insurance contract which is not regulated by maritime law. In view of this, this paper attempts to explore the rationality of insurance guarantee by expounding the insurance guarantee of insurance contract, using the method of comparative research, and puts forward some understanding and suggestions on the establishment and perfection of insurance guarantee system in the insurance law of our country. This paper is divided into four parts. The first part starts with the connotation of insurance guarantee, expounds the basic concept and characteristics of insurance guarantee respectively, and through the comparison of related concepts, clarifies the concrete connotation of insurance guarantee to avoid and guarantee. Confusion between warranty insurance and exemption clauses. The second part mainly focuses on the historical investigation and classification investigation of insurance guarantee, and expounds the positive role played by the real guarantee related to risk in the development of insurance guarantee in the early stage. This paper probes into the problems existing in the insurance guarantee which is based on the guarantee stipulated in the contract. The four common types of insurance guarantee, namely express warranty, implied warranty, confirmatory guarantee and commitment guarantee, are taken as the focus of investigation, and the rationality of their existence and the problems they face are analyzed. The third part carries on the content of the rationality inspection of the second part, aiming at the problems faced by insurance guarantee, it leads to the necessity of legal regulation of insurance guarantee. The concrete system of legal norm of insurance guarantee is put forward by means of analysis and comparison, and it is expounded from four angles: the content standard of insurance guarantee, the norm of violation of guarantee, the norm of consequence of breach of guarantee and the norm of burden of proof. In addition, the characteristics of the legal norm of insurance guarantee are illustrated by comparing it with the legal norms of common standard clauses. The fourth part focuses on the status quo of the insurance guarantee system in China's insurance law, and points out that the insurance guarantee system in China is missing not only in the marine insurance part of the maritime law, but also in the marine insurance part of the maritime law through the interpretation of the insurance guarantee provided by the existing laws. And in the field of non-marine insurance, there are also omissions in the general insurance law. From the point of view of disadvantage caused by the lack of insurance guarantee system, this paper simply discusses the necessity of attaching importance to insurance guarantee system. Finally, the author puts forward some suggestions on the establishment and perfection of insurance guarantee system in our country, such as the definition, the applicable form and the applicable rules of the insurance guarantee system.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.284
本文编号：2461204
[Abstract]:The insurance guarantee clause in the insurance contract has a long history and is widely used in the Anglo-American law. However, with the rapid development of the insurance industry in our country, due to the lack of the insurance guarantee provision in the insurance law of our country, Insurance guarantee clause has not been paid enough attention, many disputes of insurance contract originate from the contradiction of insurance guarantee clause. However, the domestic research focuses on the guarantee system in marine insurance law, but not a lot on the guarantee system of general insurance contract which is not regulated by maritime law. In view of this, this paper attempts to explore the rationality of insurance guarantee by expounding the insurance guarantee of insurance contract, using the method of comparative research, and puts forward some understanding and suggestions on the establishment and perfection of insurance guarantee system in the insurance law of our country. This paper is divided into four parts. The first part starts with the connotation of insurance guarantee, expounds the basic concept and characteristics of insurance guarantee respectively, and through the comparison of related concepts, clarifies the concrete connotation of insurance guarantee to avoid and guarantee. Confusion between warranty insurance and exemption clauses. The second part mainly focuses on the historical investigation and classification investigation of insurance guarantee, and expounds the positive role played by the real guarantee related to risk in the development of insurance guarantee in the early stage. This paper probes into the problems existing in the insurance guarantee which is based on the guarantee stipulated in the contract. The four common types of insurance guarantee, namely express warranty, implied warranty, confirmatory guarantee and commitment guarantee, are taken as the focus of investigation, and the rationality of their existence and the problems they face are analyzed. The third part carries on the content of the rationality inspection of the second part, aiming at the problems faced by insurance guarantee, it leads to the necessity of legal regulation of insurance guarantee. The concrete system of legal norm of insurance guarantee is put forward by means of analysis and comparison, and it is expounded from four angles: the content standard of insurance guarantee, the norm of violation of guarantee, the norm of consequence of breach of guarantee and the norm of burden of proof. In addition, the characteristics of the legal norm of insurance guarantee are illustrated by comparing it with the legal norms of common standard clauses. The fourth part focuses on the status quo of the insurance guarantee system in China's insurance law, and points out that the insurance guarantee system in China is missing not only in the marine insurance part of the maritime law, but also in the marine insurance part of the maritime law through the interpretation of the insurance guarantee provided by the existing laws. And in the field of non-marine insurance, there are also omissions in the general insurance law. From the point of view of disadvantage caused by the lack of insurance guarantee system, this paper simply discusses the necessity of attaching importance to insurance guarantee system. Finally, the author puts forward some suggestions on the establishment and perfection of insurance guarantee system in our country, such as the definition, the applicable form and the applicable rules of the insurance guarantee system.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.284
【引证文献】
相关硕士学位论文 前1条
1 樊丽;中国保险保证制度及条款的缺失与完善[D];西南财经大学;2011年
，本文编号：2461204
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