消费信贷保证保险制度研究

发布时间：2019-02-18 09:02

【摘要】：消费信贷保证保险是随着消费信贷的发展而产生的一种能够实现经销商、银行、保险公司、消费者多方共赢的制度。由于我国法律制度滞后于消费信贷的发展，在司法实践中，法院在处理消费信贷保证保险案件时遇到了诸多问题。09年保险法修改后将保证保险明确界定为保险，使保证保险的性质得以明晰。但新保险法仍然缺乏对保证保险的具体规定，司法实践中的很多问题还没有解决。本文在界定消费信贷保证保险的基础上，从消费信贷保证保险的历史发展进程入手，试图找出消费信贷保证保险发展停滞不前的原因。进而从法律制度和风险及其防控两个方面分析消费信贷保证保险存在的主要问题。本文共分四个部分。第一部分简要界定了消费信贷保证保险的概念及其产生的必要性。首先通过阐述消费信贷保证保险的内涵，在对保证保险分类的基础上区分贷款保证保险、合同履约保证保险与消费信贷保证保险的关系，从而明确了消费信贷保证保险的外延为个人消费信贷保证保险、住房消费信贷保证保险、汽车消费信贷保证保险。消费信贷保证保险产生的必要性是分别从传统担保机制的不足以及消费信贷的发展来阐述其产生的理论和现实原因。第二部分主要阐述消费信贷保证保险的历史沿革。在简要分析国外消费信贷保证保险的发展之后，从消费信贷保证保险的运用、法律制度的出台以及相关合同条文几个方面重点分析了住房消费信贷保证保险、汽车消费信贷保证保险以及个人消费信贷保证保险。第三部分是本文的重点所在。探讨的是消费信贷保证保险存在的法律问题。从程序法和实体法两个层面进行分析。由于消费信贷保证保险的法律问题很多，本文仅选取了几个普遍的、争议较大的法律问题进行探讨。程序法方面主要探讨消费信贷保证保险案件的当事人和管辖。实体法方面主要探讨了四点。一是保证保险合同与借款合同、银保合作协议的关系；二是银行能否被指定为受益人；三是保险公司的抗辩权；最后探讨保险公司的代位求偿权。通过比较的方法对争议问题双方观点进行了阐述，并加以分析。第四部分从保险公司和银行两个角度分析了各自面临的风险，指出消费信贷保证保险发展停滞不前的深层次原因，即保险公司监管不力造成的风险和银行风险失控。从明确个人资信调查的主体及责任方式，，加强保险公司的内部管理以及协调保险公司和银行的利益的角度提出了相关的防控措施。本文写作的总体思路是在了解消费信贷保证保险的界定及发展进程的基础上，分析其发展停滞不前的原因，包括法律制度和保险公司、银行的风险防控的不足，并提出相应的解决措施。
[Abstract]:With the development of consumer credit, consumer credit guarantee insurance is a system which can realize the win-win situation of dealers, banks, insurance companies and consumers. Because the legal system of our country lags behind the development of consumer credit, in judicial practice, the court has encountered many problems in dealing with the case of consumer credit guarantee insurance. To clarify the nature of warranty insurance. However, the new insurance law still lacks the specific provisions of guarantee insurance, and many problems in judicial practice have not been solved. Based on the definition of consumer credit guarantee insurance, this paper tries to find out the reasons why the development of consumer credit guarantee insurance stagnates from the historical development process of consumer credit guarantee insurance. The main problems of consumer credit guarantee insurance are analyzed from legal system, risk and prevention and control. This paper is divided into four parts. The first part briefly defines the concept of consumer credit guarantee insurance and its necessity. First of all, by expounding the connotation of consumer credit guarantee insurance, the relationship between loan guarantee insurance, contract performance guarantee insurance and consumer credit guarantee insurance is distinguished on the basis of the classification of guarantee insurance. Thus, the extension of consumer credit guarantee insurance is defined as personal consumption credit guarantee insurance, housing consumption credit guarantee insurance and automobile consumption credit guarantee insurance. The necessity of producing consumer credit guarantee insurance is to explain the theoretical and practical reasons from the deficiency of traditional guarantee mechanism and the development of consumer credit. The second part mainly expounds the history of consumer credit guarantee insurance. After a brief analysis of the development of foreign consumer credit guarantee insurance, this paper focuses on the analysis of housing consumption credit guarantee insurance from the aspects of the application of consumer credit guarantee insurance, the introduction of legal system and the relevant contract provisions. Auto consumption credit guarantee insurance and personal consumption credit guarantee insurance. The third part is the focus of this paper. What is discussed is the legal question which the consumer credit guarantees insurance exists. From the procedural law and substantive law two levels of analysis. As there are many legal problems in consumer credit guarantee insurance, this paper only selects several general and controversial legal issues to be discussed. Procedural law mainly discusses the parties and jurisdiction of consumer credit guarantee insurance cases. In the aspect of substantive law, it mainly discusses four points. The first is the relationship between the guarantee insurance contract and the loan contract, the cooperation agreement between the bank and the insurance company; the second is whether the bank can be designated as the beneficiary; the third is the defense right of the insurance company; finally, the subrogation right of the insurance company is discussed. Through the method of comparison, the views of both sides of the dispute are expounded and analyzed. The fourth part analyzes the risks faced by insurance companies and banks, and points out the deep-seated reasons for the stagnant development of consumer credit guarantee insurance, that is, the risks caused by the weak supervision of insurance companies and the runaway risks of banks. From the angle of clarifying the main body and responsibility of personal credit investigation, strengthening the internal management of insurance companies and coordinating the interests of insurance companies and banks, this paper puts forward relevant preventive and control measures. On the basis of understanding the definition and development process of consumer credit guarantee insurance, this paper analyzes the reasons for the stagnation of its development, including the legal system, insurance companies, and the lack of risk prevention and control of banks. And put forward the corresponding solution.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.284;F832.4

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