Viewpoint... An analysis of the "duty to inform truthfully" in the Insurance Law"
Published:
2024-04-03
As a kind of commercial contract, insurance contract has its own uniqueness. If the insured or the insured fails to fulfill the "obligation to inform truthfully" at the time of the conclusion of the contract, resulting in the refusal of insurance after many years of performance of the contract and payment of many years of premiums, it will obviously cause the insurance contract to be in an unstable period for a long time, and will also cause the insurance company's trust crisis, which is not conducive to the long-term development of the insurance industry. In this context, the scope of notification and the identification of important matters that are limited by legislation to "truthfully inform the obligation" have emerged.
As a kind of commercial contract, insurance contract has its own uniqueness. With the development of social practice and the progress of the insurance industry, the channels for obtaining and disclosing information are becoming wider and wider. If the insured and the insured fail to fulfill the "obligation of truthful notification" when concluding the contract, resulting in the performance of the contract for many years and the payment of premiums for many years After being rejected, it will obviously cause the insurance contract to be in an unstable period for a long time, and it will also cause a crisis of trust for insurance companies, which is not conducive to the long-term. In this context, the scope of notification and the identification of important matters that are limited by legislation to "truthfully inform the obligation" have emerged.
Characteristics of the concept of "duty to inform truthfully" in 1.
The obligation to inform truthfully refers to the system in which the insured or the insured shall inform the insurer of the important matters of the insurance at the time of insurance. Summarizing the characteristics of the "obligation to inform truthfully" is helpful to grasp the connotation and extension of its concept.
The "duty to inform truthfully" has the following characteristics:
The subject of performance is the policyholder. At this time, the insured shall be interpreted as the insured party at the time of the conclusion of the insurance contract, or if the insured is inconsistent with the insured, as the insured being questioned. The period of performance of the "obligation to inform truthfully" shall be at the time of the conclusion of the contract. The scope of performance of the "obligation to inform truthfully" should be limited to "major matters". Therefore, the determination of what is a "major matter" directly affects whether the insured or the insured has violated the "obligation to inform truthfully. The determination of "significant matters", on the other hand, has a question of criteria for judgment.
A material matter is generally defined as a matter that is sufficient to affect whether the insurer will underwrite and the underwriting rate. But only so defined, and there will be the interpretation of the right to control in the hands of the insurer, leading to the policyholder completely vulnerable situation. Therefore, for the definition of "material matters" there is an "objective prudential insurer standard" and "decisive influence standard. Regardless of the criteria, is the degree of fulfilment of the "obligation to inform truthfully" limited to the fact that the policyholder "knows" or to the fact that the insurer "should know" according to industry practice? The fact that the policyholder is "sure to know" does not necessarily cover all the facts that affect the insurer's underwriting and rates, but if the policyholder is required to state all the facts that the insurer "should know", it will not be exhausted due to the limited knowledge, cognition, ability and experience of the policyholder. However, the author believes that when the policyholder has asked the insurer, the policyholder knows the existence of the facts and the true situation and conceals the facts, and cannot use his cognition, ability, knowledge and other issues as a defense. Because the true statement of facts does not have different conclusions due to cognition, ability, knowledge and other issues.
2. the scope of the "duty to inform truthfully"
China's Insurance Law has adopted the expression "sufficient to affect" the provisions of the "obligation to inform truthfully. The author thinks that the fact of corresponding notification should be understood as the fact that has a decisive influence on the judgment of the insurer and should be informed, that is, it can directly determine whether the insurer underwrites and the rate, and the fact must have a substantial impact on the insurer. The reasons are as follows:
(I) defines the scope of the facts to be informed as the facts that should be informed can directly determine whether the insurer underwrites, the rate, and must have a material impact, in line with the core content of the insurance contract, that is, underwriting and rates. The most important part of the insurance contract is whether the contract can be reached and the amount of the rate, the provisions to inform the facts for the above content, in line with the core content of the insurance contract requirements;
(II) clarifying the scope of the facts will help to reduce the burden of the policyholder's obligation to inform, so that the obligation to inform truthfully can be followed, the insurer shall not arbitrarily based on the "obligation to inform truthfully" and refuse to pay compensation, is conducive to maintaining the normal insurance order.
However, in modern insurance contracts, the facts that need to be informed are generally clearly printed by the insurer, so this standard contract text represents the view of the "prudent insurer. At this point, the application of the "reasonable insured standard" is even more important, and in fact, these form provisions represent the views of the insurer and are not necessarily matters that must be informed. This concept is particularly important for solving the disadvantages brought about by the format clause, which can be applied to make value judgments to avoid the situation where the insured or the insured is refused compensation and the rights and interests are difficult to be protected.
Therefore, a reasonable standard of the insured is more applicable to the policyholder, and it is easier for the policyholder to fulfill the obligation of notification within the scope of his knowledge and ability and within the scope of his or her cognitive reasoning as long as he or she has done his or her duty of reasonable care.
Consequences of 3. breach of the "duty to inform truthfully"
There are two main types of violations of the "obligation to inform truthfully": one is the failure to inform, including intentional concealment and negligent omission, and the other is the untrue notification caused by misinformation or misinformation. According to the subjective fault of the policyholder, the violation of the "obligation to inform truthfully" can also be distinguished into intentional failure to inform and negligent failure to inform. Article 16 of China's Insurance Law provides as follows:
"If an insurance contract is concluded and the insurer inquires about the subject matter of the insurance or the relevant situation of the insured, the applicant shall inform him truthfully.
If the applicant intentionally or due to gross negligence fails to perform the obligation of truthful disclosure stipulated in the preceding paragraph, which is sufficient to affect the insurer's decision whether to agree to underwrite or increase the insurance premium rate, the insurer shall have the right to terminate the contract.
The right to rescind a contract provided for in the preceding paragraph shall be extinguished without exercise for more than 30 days from the date on which the insurer becomes aware of the cause of rescission. If more than two years have passed since the date of the establishment of the contract, the insurer shall not terminate the contract: if an insurance accident occurs, the insurer shall bear the responsibility of compensation or payment of insurance benefits.
If the insured intentionally fails to perform the obligation of truthful disclosure, the insurer shall not be liable for compensation or payment of insurance benefits for the insurance accident that occurred before the termination of the contract, and shall not refund the insurance premium.
If the insured fails to perform the obligation of truthful notification due to gross negligence, which has a serious impact on the occurrence of an insurance accident, the insurer shall not be liable for compensation or payment of insurance benefits for the insurance accident that occurred before the termination of the contract, but shall refund the insurance premium.
If the insurer has known at the time of the conclusion of the contract that the insured has not truthfully informed the insured, the insurer shall not terminate the contract, and if an insurance accident occurs, the insurer shall be liable for compensation or payment of insurance benefits.
An insurance accident is an accident within the scope of insurance liability as stipulated in the insurance contract."
This provision not only reflects the different consequences of the violation of the "duty of truthful disclosure" due to intentional and gross negligence, but also reflects the progress of legislation, and then introduces the spirit of "incontestable clause.
In summary, the establishment of the "truthful notification obligation" and the clarification of the scope and consequences of the "truthful notification obligation" on the one hand enable the insured to clarify the notification obligation and reduce the burden of the notification obligation. On the other hand, the insurer can know the real situation and correctly assess the risks., To decide whether to underwrite and rate, and ultimately achieve the purpose of balancing the status of both parties, and play a greater role in promoting the development of my country's insurance industry.
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