海上货物运输保险中保险利益理论与实践研究
发布时间：2019-06-06 15:52
【摘要】： 保险利益是保险合同法上所特有的概念,保险利益原则一般被认为是保险合同法特有的基本原则之一,保险利益的有关理论是保险合同法理论的重要组成部分,有关保险利益的理论不仅是保险合同法上的重大理论问题,在实务中也具有独特的意义。 对于海上保险法而言,保险利益原则是当之无愧的最重要的原则之一,有句古语叫做“无保险利益则无保险”。但是,我国《海商法》对于保险利益原则并未加以规定,我国《保险法》虽然有所规定,但是规定得并不详尽,这样必将对其适用及适用后果造成不良影响。 本文作者在大量阅读相关学者文献,总结前人研究成果的基础上,通过比较大陆法系、英美法系以及一些国家及地区有关保险利益的理论观点、经典学说、立法和司法实践,从理论上对保险利益的定义、理论发展状况进行了阐述和总结,并提出了一些自己的看法,再结合相关案例以及我国保险立法和实践对有关保险利益的界定等问题做出了一些探讨,并在此基础上,对我国关于保险利益的立法的发展提出了自己的意见和建议。 本文共分为五部分。首先,在引言部分,作者结合保险利益的发展历史等,提出了本文的研究目标;在本文的第1章中,作者通过阐述保险利益的一些经典学说的发展,提出支持实质风险负担说的观点,阐述了自己对“风险”这一概念的认识、通过列举世界上一些国家和地区有关保险利益的立法情况、对比各个国家和地区有关保险利益的定义等,总结出各个国家有关保险利益的立法不尽相同,普遍认为,保险利益规则应仅适用于财产保险合同中,而人身保险合同则不适用;而英国、美国等英美法系国家一般认为,保险利益规则不但应适用于财产保险合同中,并且应同样适用于人身保险合同中;在第2章中,作者通过阐述保险利益界定的法律模式,论述了自己的观点,肯定了风险转移与货物所有权转移相分离的观点、通过阐述海上货物运输保险中保险利益的构成要件等理论问题,为下文的展开做好了铺垫;在第3章中,作者通过典型案例来说明在实践中海上货物运输保险有关保险利益方面出现的问题,在论述保险利益与保险损失的关系时,提出保险利益与损失之间的正确的逻辑关系是:被保险人对保险标的存在法律上承认的利益(如承担了货物风险、取得了货物的所有权等),因此,被保险人具有保险利益(保险标的的灭失或损坏会给被保险人造成经济上的损失或者给被保险人带来责任):在第4章中,作者结合我国目前的立法状况,提出了对我国有关保险利益立法的一些建议和意见。在文章最后,作者对本文的主要观点进行了总结,同时对今后保险利益立法的发展进行了展望。
[Abstract]:Insurable interest is a unique concept in insurance contract law. The principle of insurable interest is generally considered to be one of the unique basic principles of insurance contract law. The theory of insurable interest is an important part of the theory of insurance contract law. The theory of insurable interest is not only an important theoretical problem in insurance contract law, but also of unique significance in practice. As far as marine insurance law is concerned, the principle of insurable interest is one of the most important principles that deserve it. There is an old saying that "without insurable interest, there is no insurance". However, the Maritime Law of our country does not stipulate the principle of insurable interest. Although the Insurance Law of our country has some provisions, it is not detailed, which will have a negative impact on its application and the consequences of its application. On the basis of reading a large number of relevant scholars' literature and summing up the previous research results, the author compares the theoretical views, classical theories, legislation and judicial practice of the civil law system, the common law system and some countries and regions on insurable interests. This paper expounds and summarizes the definition and theoretical development of insurable interest in theory, and puts forward some own views. Combined with the relevant cases, as well as the insurance legislation and practice of our country, this paper makes some discussions on the definition of insurable interest, and on this basis, puts forward some suggestions and suggestions on the development of the legislation of insurable interest in our country. This paper is divided into five parts. First of all, in the introduction, combined with the development history of insurable interests, the author puts forward the research objectives of this paper. In the first chapter of this paper, by expounding the development of some classical theories of insurable interest, the author puts forward the viewpoint of supporting the theory of substantive risk burden, and expounds his own understanding of the concept of "risk". By enumerating the legislation on insurable interests in some countries and regions in the world and comparing the definitions of insurable interests in different countries and regions, it is concluded that the legislation on insurable interests in various countries is different, and it is generally believed that, The rules of insurable interest should only apply to property insurance contracts, but not to personal insurance contracts. However, Britain, the United States and other common law countries generally believe that the rules of insurable interest should be applied not only to property insurance contracts, but also to life insurance contracts. In the second chapter, by expounding the legal mode of defining insurable interest, the author discusses his own point of view, and confirms the separation of risk transfer from the transfer of ownership of goods. By expounding the theoretical problems such as the constituent elements of insurable interests in marine cargo transport insurance, this paper paves the way for the following development. In chapter 3, the author explains the problems related to insurable interest in marine cargo transport insurance through typical cases, and discusses the relationship between insurable interest and insurable loss. It is pointed out that the correct logical relationship between insurable interest and loss is that the insured has legally recognized interests in the subject matter insured (such as bearing the risk of the goods, obtaining the ownership of the goods, etc.). Therefore, The insured has insurable interest (the loss or damage of the subject matter insured will cause economic loss to the insured or bring liability to the insured): in Chapter 4, the author combines the current legislative situation of our country, Some suggestions and opinions on the legislation of insurable interests in China are put forward. At the end of the paper, the author summarizes the main viewpoints of this paper and looks forward to the development of insurable interest legislation in the future.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996
本文编号：2494421
[Abstract]:Insurable interest is a unique concept in insurance contract law. The principle of insurable interest is generally considered to be one of the unique basic principles of insurance contract law. The theory of insurable interest is an important part of the theory of insurance contract law. The theory of insurable interest is not only an important theoretical problem in insurance contract law, but also of unique significance in practice. As far as marine insurance law is concerned, the principle of insurable interest is one of the most important principles that deserve it. There is an old saying that "without insurable interest, there is no insurance". However, the Maritime Law of our country does not stipulate the principle of insurable interest. Although the Insurance Law of our country has some provisions, it is not detailed, which will have a negative impact on its application and the consequences of its application. On the basis of reading a large number of relevant scholars' literature and summing up the previous research results, the author compares the theoretical views, classical theories, legislation and judicial practice of the civil law system, the common law system and some countries and regions on insurable interests. This paper expounds and summarizes the definition and theoretical development of insurable interest in theory, and puts forward some own views. Combined with the relevant cases, as well as the insurance legislation and practice of our country, this paper makes some discussions on the definition of insurable interest, and on this basis, puts forward some suggestions and suggestions on the development of the legislation of insurable interest in our country. This paper is divided into five parts. First of all, in the introduction, combined with the development history of insurable interests, the author puts forward the research objectives of this paper. In the first chapter of this paper, by expounding the development of some classical theories of insurable interest, the author puts forward the viewpoint of supporting the theory of substantive risk burden, and expounds his own understanding of the concept of "risk". By enumerating the legislation on insurable interests in some countries and regions in the world and comparing the definitions of insurable interests in different countries and regions, it is concluded that the legislation on insurable interests in various countries is different, and it is generally believed that, The rules of insurable interest should only apply to property insurance contracts, but not to personal insurance contracts. However, Britain, the United States and other common law countries generally believe that the rules of insurable interest should be applied not only to property insurance contracts, but also to life insurance contracts. In the second chapter, by expounding the legal mode of defining insurable interest, the author discusses his own point of view, and confirms the separation of risk transfer from the transfer of ownership of goods. By expounding the theoretical problems such as the constituent elements of insurable interests in marine cargo transport insurance, this paper paves the way for the following development. In chapter 3, the author explains the problems related to insurable interest in marine cargo transport insurance through typical cases, and discusses the relationship between insurable interest and insurable loss. It is pointed out that the correct logical relationship between insurable interest and loss is that the insured has legally recognized interests in the subject matter insured (such as bearing the risk of the goods, obtaining the ownership of the goods, etc.). Therefore, The insured has insurable interest (the loss or damage of the subject matter insured will cause economic loss to the insured or bring liability to the insured): in Chapter 4, the author combines the current legislative situation of our country, Some suggestions and opinions on the legislation of insurable interests in China are put forward. At the end of the paper, the author summarizes the main viewpoints of this paper and looks forward to the development of insurable interest legislation in the future.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D996
【引证文献】
相关硕士学位论文 前3条
1 王曼;保险利益原则研究[D];大连海事大学;2011年
2 张琪;海上货物保险可保利益法律问题研究[D];大连海事大学;2011年
3 魏冉;试论无保险利益投保人在合同中的地位[D];华东政法大学;2011年
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