The distribution of leaflets by insurance companies does not constitute the obligation to fulfill the reminder.

Published:

2021-12-09

[brief case]] Liang and Chen took out campus insurance for their daughter Xiao Liang to an insurance company through the school. During the insurance period, Xiao Liang died of illness, so Liang and Chen asked an insurance company to pay insurance money. An insurance company believes that the medical records show that trabecular has been suffering from illness before the insurance, according to the insurance contract, it does not need to pay insurance money. There is a dispute between the parties as to whether an insurance company has fulfilled its obligation to advise on the exemption clause. An insurance company claimed that it had fulfilled the obligation of prompt explanation by distributing leaflets to parents through the school before underwriting, but Liang and Chen did not confirm this. The people's court held that the main purpose of an insurance company's distribution of leaflets through schools was to attract parents of students to take out insurance. The nature of the leaflets was similar to advertisements and did not belong to the scope of insurance certificates. There was no hint on the leaflets that parents should pay attention to the contents of the exemption clauses, and an insurance company did not explain the exemption clauses in other ways, therefore, the leaflet alone can not prove that an insurance company on the exemption clause to fulfill the obligation to explain the obligation, the judgment of an insurance company to Liang, Chen Mou to pay insurance money. focus of controversy] Whether an insurance company has fulfilled its obligation to clearly explain to the policyholder the exemption clause involved in the case, and whether the policyholder has intentionally or due to gross negligence failed to fulfill the obligation of truthful disclosure. The court of first instance held that] The Court believes that: Liang, Chen as the legal guardian of trabecular to an insurance company to insure students, children safe personal accident insurance, and an insurance company to collect insurance premiums, so the two sides set up a life insurance contract relationship in accordance with the law. Both parties have no objection to the fact that the insured trabecular had a past medical history before the insurance and trabecular spent a total of 117979.99 yuan on medical expenses before his death due to illness, which was confirmed by our hospital. According to the arguments of both parties, the focus of the dispute in this case is whether an insurance company has fulfilled its obligation to clearly explain the exemption clause involved in the case to the insured. In this regard, the court believes that the second paragraph of Article 17 of the the People's Republic of China Insurance Law stipulates that for the clause in the insurance contract that exempts the insurer from liability, the insurer shall make a sufficient statement on the insurance policy, insurance policy or other insurance certificate when concluding the contract. Prompt to attract the attention of the applicant, and make a clear explanation of the content of the clause to the applicant in written or oral form; if there is no prompt or clear explanation, the clause, the clause shall not. Article 11 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the the People's Republic of China Insurance Law stipulates that when an insurance contract is concluded, the insurer shall exempt the insurer from liability in the insurance contract on other insurance documents such as the application form or insurance policy. The clause is prompted by words, fonts, symbols or other obvious signs sufficient to attract the attention of the applicant, the people's court shall determine that it has fulfilled the reminder obligation stipulated in the second paragraph of Article 17 of the Insurance Law. Where the insurer provides an explanation in writing or orally to the insured of the concept, content and legal consequences of the clause in the insurance contract relating to the exemption of the insurer's liability, the people's court shall determine that the insurer has fulfilled the obligation of clear explanation stipulated in the second paragraph of Article 17 of the Insurance Law. In this case, an insurance company claimed that the insurance policy involved in the case made it clear that the insurer would not be liable for the death caused by the disease and its complications that existed before the insured was insured, and that the insurer would not be liable for the payment of insurance benefits. It also indicated in the leaflet issued to the parents of the students that "the diseases, congenital diseases, hereditary diseases and their complications that had been suffered before the initial insurance shall not be liable for insurance", so it has fulfilled. However, according to the "Information Note" provided by a primary school, it can be seen that an insurance company has not directly contacted the parents of the students in the whole process of issuing leaflets, parents' signatures, premium collection and policy delivery. There is no evidence that an insurance company has explained the concept, content and legal consequences of the exemption clauses in the leaflets and insurance policies to the parents of the students in written or oral form. In addition, an insurance company argues that the parent of the student and an insurance brokerage company constitute a principal-agent relationship, so its behavior of exercising the obligation of prompting and explaining to an insurance brokerage company also has effect on the policyholder. This defense obviously confuses the basic principles of the subject status of the parties to the insurance contract and the relativity of the contract, and whether the establishment of the insurance contract has the intervention of the insurance brokerage company, neither does it affect the performance of the insurer's obligation to explicitly state directly to the policyholder on the exemption clause, so this defense claim of an insurance company is not accepted by the Court. In summary, the Court confirmed that an insurance company did not clearly explain the obligation of the exemption clause involved in the case to the policyholder Liang and Chen, and the exemption clause has no effect on Liang and Chen. The insurance policy involved in the case did not agree on the beneficiary. According to the provisions of Article 42 of the the People's Republic of China Insurance Law, Liang and Chen Mou, as the first order heirs of Liang, are now suing to require an insurance company to pay insurance money of 130000 yuan. The rationale is sufficient and the court supports it. In addition, no matter whether Liang and Chen have signed on the leaflet, and whether Liang's cause of death is related to past medical history, it will not affect the above-mentioned determination and handling results of this case. Therefore, it is no longer necessary to obtain evidence from an insurance company and the application for identification, and the court will not allow it. The court of second instance held that] The Court believes that the trial of the second instance case should revolve around the appeal request of the parties. Based on the opinions of both parties, the focus of the dispute in the second instance of this case includes: whether an insurance company in the 1. has fulfilled the obligation to clearly explain the exemption clause to the insured Liang and Chen, 2. whether the insured Liang and Chen have deliberately or due to Gross negligence failed to perform the obligation of truthful notification. Regarding the focus of the dispute, whether an insurance company has clearly stated its obligation to the policyholder Liang and Chen on the exemption clause. The insurer's obligation to explain the exemption clause refers to the insurer's explanation of the concept, content and legal consequences of the exemption clause in the insurance contract to the policyholder in writing or orally. First of all, the main purpose of an insurance company distributing leaflets through schools is to attract parents of students to take out insurance. The nature of the leaflets is similar to advertisements and does not belong to the category of insurance certificates. At the same time, the part of the leaflet that needs to be signed by parents is only the "power of attorney for the insurance broker of" learning accident insurance ", and there is nothing to remind parents to pay attention to the exemption clause. An insurance company also did not explain the exemption clause in other ways. Therefore, the leaflet alone cannot prove that an insurance company has fulfilled its obligation to prompt the exemption clause, let alone that an insurance company has fulfilled its obligation to explain. Secondly, in accordance with the "'Learning Insurance' insurance broker power of attorney" contained, the insurance broker accepts the student's parents entrusted to handle the insurance and claims procedures, but the insurer's reminder to the policyholder that the obligation is not exempted by the policyholder entrusting the insurance broker to handle the insurance procedures. Because the counterparties to the insurance contract are the insurer and the policyholder, the insurance broker only handles the insurance procedures on behalf of the policyholder, not an independent party, the insurance broker handles the insurance procedures in the name of the policyholder rather than in his own name, and the insurer fulfills the obligation to prompt the policyholder rather than the insurance broker. Therefore, an insurance company advocates that the act of exercising the obligation of prompting the insurance broker has the effect on the insured, which is contrary to the connotation of the entrustment agent system, and the court will not adopt it. In summary, an insurance company claims that it has fulfilled its obligation to clearly explain the exemption clause to the policyholder, and the court does not support it on insufficient basis. With regard to the second focus of the dispute, whether the policyholder has intentionally or through gross negligence failed to perform the obligation of truthful disclosure. Article 16, paragraph 1, of the the People's Republic of China Insurance Law stipulates: "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 truthfully inform it." However, from the ''Statement of Situation'' provided by a primary school, it can be seen that from the entire process of issuing leaflets, parents' signatures, premium collection, and policy delivery, an insurance company has not directly contacted the parents of the students, and there is no formal inquiry procedure for the subject matter of the insurance or the insured. The only evidence available is that the "power of attorney for 'academic insurance' insurance brokers" in the leaflet mentions "whether there is a past illness" in the student information column ". As mentioned above, the leaflet is of an advertising nature and does not constitute a process for the formal conclusion of an insurance contract, and the relevant content on the leaflet is not sufficient to enable the policyholder to pay enough attention to and have a clear understanding of the meaning and consequences of the check. Moreover, from the fact that an insurance company stated that the leaflet was retained by the school, it can be seen that an insurance company did not in fact review the contents of the leaflet at the time of underwriting and used it as the basis for underwriting. To sum up, regardless of whether the applicant has checked "whether there is a past illness" and how to check, it cannot be determined that the applicant has intentionally or failed to fulfill the obligation of truthfully informing due to gross negligence. The relevant claims of an insurance company lack basis and the court will not support them. Whether the applicant signs the leaflet or not does not affect the determination and handling of the case. The court of first instance did not allow the investigation and evidence collection, which is not improper. Lawyer Advice] China's insurance law and judicial interpretation on the insurance company for the insurance contract exemption clause of the prompt explanation obligation has clear provisions, but in practice there are disputes caused by the obligation to fulfill the determination of disputes. In this case, the court held that the leaflet distributed by the insurance company through the school did not belong to the scope of the insurance certificate. The leaflet did not indicate that parents should pay attention to the exemption clause, and the insurance company did not explain the exemption clause through other means. The leaflet alone cannot prove that the insurance company has fulfilled its obligation to explain the exemption clause. Through this case, it is suggested that insurance companies should pay attention to fully fulfilling the statutory responsibilities of the insurer. For the exemption clauses that are prone to disputes, they should adopt appropriate methods to fulfill the obligation of reasonable and sufficient prompts to the insured when accepting insurance, and pay attention to retaining Relevant evidence to avoid mere formality.

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