The insurer has no right to claim the termination of the contract on the grounds that the insurance contract is still in the hesitancy period, unless otherwise stipulated by law or the insurance contract.
Published:
2021-10-23
[brief case]] On December 16, 2016, Yuan Mou took out insurance from a certain person's insurance company in Linyi. The insurance items include 100 years of additional health 100 to pay critical illness insurance in advance, with an insurance amount of 200000 yuan. On December 16, 2016, someone's Linyi Branch collected Yuan's insurance premium of 8473 yuan. On January 4, 2017, someone insured Linyi Branch to refund Yuan Mou's fee. On January 5, 2017, someone insured Linyi Branch Company charged the fee again. On January 18, 2017, someone insured Linyi Branch Company returned Yuan Mou 763 yuan. On January 24, 2017, someone insured Linyi Branch Company returned Yuan Mou 7710 yuan. Yuan was hospitalized for cerebral hemorrhage and hypertension stage III on January 20, 2017. He was discharged from hospital on January 29, 2017 and was diagnosed with cerebral hemorrhage, hypertension stage III and hyponatremia. On June 11, 2019, Linyi Lanshan Forensic Judicial Appraisal Institute issued an appraisal opinion, which determined that Yuan's left upper limb function was completely lost due to hypertension and cerebral hemorrhage, his left lower limb was claudication, and his muscle strength was level 3. According to Article 7.6 of the "Personal Insurance Disability Assessment Standard", it conforms to "complete loss of function of one limb" and constitutes level 5 disability. The appraisal opinion is Yuan's "post-cerebral hemorrhage disease" constitutes level 5 disability. Yuan has repeatedly asked someone to insure Linyi Branch to pay for major illness insurance, but someone has refused to bear the insurance liability on the grounds that the insurance contract has been terminated and Yuan's premium has been refunded. After Yuan Mou filed a lawsuit with the people's Court of lanshan district, Linyi City, Shandong Province. After hearing, the court ruled that 1. someone to pay Yuan Mou's insurance money to Linyi Branch Company in 200000 yuan, which should be paid to Yuan Mou's account within 10 days after the legal effect of this judgment. The 2. rejected Yuan's other claims. A person Bao Linyi Branch appealed against the first instance judgment, and the Intermediate People's Court of Linyi City, Shandong Province, rejected the appeal and upheld the original judgment on June 28, 2020. focus of controversy] 1. Whether the insurance contract in question has been terminated during the period of hesitation; 2. The validity of the format clause of the insurance contract in question is determined. The court of first instance held that] The insurance contract signed by the original and the defendant is the true intention of both parties, does not violate the mandatory provisions of laws and regulations, and the insurance contract is established and valid. If the plaintiff is ill during the insurance period, the defendant shall bear the corresponding obligation to settle the claim in accordance with the provisions of the law and the insurance contract. According to Article 15 of the the People's Republic of China Insurance Law, unless otherwise provided in this Law or otherwise agreed in the insurance contract, after the establishment of the insurance contract, the applicant may terminate the contract and the insurer may not terminate the contract. The Court does not support the defendant's claim that he can terminate the contract. The defendant claimed that the plaintiff entrusted Liu mou to apply for surrender during the hesitation period, because the application for change of insurance contract and the power of attorney for change of insurance contract provided by the plaintiff were copies, and the defendant also recognized that the signature of "yuan mou" in the application was not signed by yuan mou himself. therefore, the defendant's claim that the plaintiff entrusted Liu mou to apply for surrender was not supported by the court due to insufficient evidence. According to Article 17 of the the People's Republic of China Insurance Law, if an insurance contract is concluded and the standard terms provided by the insurer are adopted, the insurance policy provided by the insurer to the policyholder shall be accompanied by the standard terms, and the insurer shall explain the contents of the contract to the policyholder. With regard to the clause in the insurance contract that exempts the insurer from liability, the insurer shall, when concluding the contract, make a prompt sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificate, and make a clear explanation to the applicant in written or oral form on the content of the clause; if there is no prompt or clear explanation, the clause shall not be effective. Accordingly, the insurer has the obligation to prompt and explain the exemption clause in the contract, and when the content of the clause involves technical terminology, the performance of the obligation should be to the extent that ordinary people can normally clearly know the content, meaning and legal consequences of the exemption clause. The confirmation of the electronic insurance application in this case has not been signed and confirmed by Yuan, which is not enough to prove that the defendant has clearly stated the exemption agreement in the insurance clause to Yuan, and the court does not support the defendant's defense of the company's exemption from insurance liability. The court of second instance held that] The Court held that, according to the Supreme People's Court's Rules on the Application<中华人民共和国民事诉讼法>的解释》第三百二十三条关于“第二审人民法院应当围绕当事人的上诉请求进行审理”的规定，本院二审中仅针对上诉人上诉请求的范围进行审查，无争议的问题不予审查。《最高人民法院关于适用<中华人民共和国民事诉讼法>Article 90 of the Interpretation of the Law of the People's Republic of China stipulates: "The parties shall provide evidence to prove the facts on which their claims are based or to refute the facts on which the other party's claims are based, unless otherwise provided by law. If the parties fail to provide evidence or the evidence is insufficient to prove their claims of fact before the judgment is rendered, the party bearing the burden of proof shall bear the adverse consequences." Article 63 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "The people's court shall make judgments in accordance with the law on the basis of the facts of the case that the evidence can prove." Article 17 of the the People's Republic of China Insurance Law stipulates: "Where an insurance contract is concluded and the standard terms provided by the insurer are adopted, the insurance form provided by the insurer to the policyholder shall be accompanied by the standard terms, and the insurer shall explain the contents of the contract to the policyholder. For the clause in the insurance contract that exempts the insurer from liability, the insurer shall, when concluding the contract, make a prompt sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificate, and make a clear explanation to the applicant in written or oral form on the content of the clause; if there is no prompt or clear explanation, the clause shall not be effective." The insurance clause in dispute in this case is the format clause issued unilaterally by the appellant. According to the above-mentioned legal provisions, whether it is the exemption clause in the form clause or the ordinary contract clause, the appellant is obliged to deliver or inform the terms to the insured at the time of insurance, and the obligation should not be replaced by a return visit afterwards, which is also in line with the principle of mutual agreement at the time of the conclusion of the ordinary contract. However, after the first instance, it was found that all parties agreed that the signatures on the electronic insurance application confirmation and other relevant documents were filled in by the insurance agent privately, not signed by the applicant's authorization, and could not represent the true intention of the applicant. The appellant also cannot submit other evidence to prove that it has informed or delivered the standard contract terms involved in the case to the policyholder at the time of insurance and has prompted and clearly stated the exemption clause, and shall bear the adverse consequences. The appellant's request for the assessment of disability rating in accordance with the terms of the format contract, the proportional payment of insurance benefits and the application of the agreed effective time and the application of the "waiting period" after the entry into force of the contract to refund the premium and exempt the agreement, are not based on the law, but also obviously unfair. In this case, the appellant claimed that the contract had been terminated, but his claim contradicted the "Application for Change of Insurance Contract" submitted by him and the contents of the telephone return visit he claimed, and there was no contract or legal basis, so the court refused to accept it according to law. With regard to the appellant's claim that the premium refunded should be deducted, the Court held that the appellant did not make the claim in the first instance. The appellant now proposes in the second instance that according to the second instance trial of the case, the court will not support it according to law. To sum up, the appellant's appeal request of a life insurance Linyi branch company cannot be established and should be rejected. In accordance with the first paragraph of Article 170 of the the People's Republic of China Civil Procedure Law, the judgment is as follows: the appeal is rejected and the original judgment is upheld. Lawyer comment] Article 5 of the the People's Republic of China Insurance Law stipulates: "The parties to insurance activities shall follow the principle of good faith in exercising their rights and performing their obligations." The principle of good faith, as one of the basic principles of insurance (the principle of insurance interests, the principle of good faith, the principle of proximate cause, and the principle of compensation for losses), means that the parties to an insurance contract should provide the other party with all the substantive and important facts that can affect the other party's decision to contract and perform the contract and abide by the agreements and commitments concluded in the contract. In insurance activities, for the insurer, the main content of the principle of good faith is that the insurer should explain the insurance contract to the counterpart, especially the exemption clause in the contract and make corresponding explanations. In this case, the insurance contract signed between the insurer and the applicant has been established and comes into effect. According to the provisions of Article 15 of the Insurance Law, even if the insurance contract is still in the hesitation period, in the absence of legal provisions or other provisions in the insurance contract, the insurer does not have the right to claim the termination of the contract; in addition, the insurer fails to perform the corresponding obligation of prompt notification and explanation on the exemption clause involved in the case, Therefore, it should bear adverse consequences.</中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>
[brief case]]
2016On December 16, 2002, Yuan Mou took out insurance from a certain person's Linyi Branch. The insurance items include 100 years of additional health 100 to pay critical illness insurance in advance, with an insurance amount of 200000 yuan. On December 16, 2016, someone's Linyi Branch collected Yuan's insurance premium of 8473 yuan. On January 4, 2017, someone insured Linyi Branch to refund Yuan Mou's fee. On January 5, 2017, someone insured Linyi Branch Company charged the fee again. On January 18, 2017, someone insured Linyi Branch Company returned Yuan Mou 763 yuan. On January 24, 2017, someone insured Linyi Branch Company returned Yuan Mou 7710 yuan. Yuan was hospitalized for cerebral hemorrhage and hypertension stage III on January 20, 2017. He was discharged from hospital on January 29, 2017 and was diagnosed with cerebral hemorrhage, hypertension stage III and hyponatremia. On June 11, 2019, Linyi Lanshan Forensic Judicial Appraisal Institute issued an appraisal opinion, which determined that Yuan's left upper limb function was completely lost due to hypertension and cerebral hemorrhage, his left lower limb was claudication, and his muscle strength was level 3. According to Article 7.6 of the "Personal Insurance Disability Assessment Standard", it conforms to "complete loss of function of one limb" and constitutes level 5 disability. The appraisal opinion is Yuan's "post-cerebral hemorrhage disease" constitutes level 5 disability.Yuan has repeatedly asked someone to insure Linyi Branch to pay for major illness insurance, but someone has refused to bear the insurance liability on the grounds that the insurance contract has been terminated and Yuan's premium has been refunded.After Yuan Mou filed a lawsuit with the people's Court of lanshan district, Linyi City, Shandong Province. After hearing, the court ruled that 1. someone to pay Yuan Mou's insurance money to Linyi Branch Company in 200000 yuan, which should be paid to Yuan Mou's account within 10 days after the legal effect of this judgment. The 2. rejected Yuan's other claims. A person Bao Linyi Branch appealed against the first instance judgment, and the Intermediate People's Court of Linyi City, Shandong Province, rejected the appeal and upheld the original judgment on June 28, 2020.
focus of controversy]
1.Whether the insurance contract in question has been terminated during the period of hesitation; 2. The validity of the format clause of the insurance contract in question is determined.
The court of first instance held that]
The insurance contract signed by the original and the defendant is the true intention of both parties, does not violate the mandatory provisions of laws and regulations, and the insurance contract is established and valid. If the plaintiff is ill during the insurance period, the defendant shall bear the corresponding obligation to settle the claim in accordance with the provisions of the law and the insurance contract.
AccordingArticle 15 of the the People's Republic of China Insurance Law stipulates that, unless otherwise provided in this Law or otherwise agreed in the insurance contract, after the establishment of the insurance contract, the applicant may terminate the contract and the insurer may not terminate the contract.The Court does not support the defendant's claim that he can terminate the contract. The defendant claimed that the plaintiff entrusted Liu mou to apply for surrender during the hesitation period, because the application for change of insurance contract and the power of attorney for change of insurance contract provided by the plaintiff were copies, and the defendant also recognized that the signature of "yuan mou" in the application was not signed by yuan mou himself. therefore, the defendant's claim that the plaintiff entrusted Liu mou to apply for surrender was not supported by the court due to insufficient evidence.
According to Article 17 of the the People's Republic of China Insurance Law, if an insurance contract is concluded and the standard terms provided by the insurer are adopted, the insurance policy provided by the insurer to the policyholder shall be accompanied by the standard terms, and the insurer shall explain the contents of the contract to the policyholder. With regard to the clause in the insurance contract that exempts the insurer from liability, the insurer shall, when concluding the contract, make a prompt sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificate, and make a clear explanation to the applicant in written or oral form on the content of the clause; if there is no prompt or clear explanation, the clause shall not be effective. according to this,The insurer has the obligation to prompt and explain the exemption clause in the contract. When the content of the clause involves technical terms, the performance of the obligation should be to the extent that ordinary people can clearly know the content, meaning and legal consequences of the exemption clause.The confirmation of the electronic insurance application in this case has not been signed and confirmed by Yuan, which is not enough to prove that the defendant has clearly stated the exemption agreement in the insurance clause to Yuan, and the court does not support the defendant's defense of the company's exemption from insurance liability.
The court of second instance held that]
The Court held that, according to the Supreme People's Court's Rules on the Application <中华人民共和国民事诉讼法> According to Article 323 of the Interpretation of the People's Court of Second Instance, the People's Court of Second Instance shall conduct a trial around the appeal requests of the parties. In the second instance of this court, only the scope of the appellant's appeal requests shall be reviewed, and undisputed issues shall not be reviewed. The Supreme People's Court on the application <中华人民共和国民事诉讼法> Article 90 of the Interpretation of the Law of the People's Republic of China stipulates: "The parties shall provide evidence to prove the facts on which their claims are based or to refute the facts on which the other party's claims are based, unless otherwise provided by law. If the parties fail to provide evidence or the evidence is insufficient to prove their claims of fact before the judgment is rendered, the party bearing the burden of proof shall bear the adverse consequences." Article 63 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" stipulates: "The people's court shall make judgments in accordance with the law on the basis of the facts of the case that the evidence can prove." Article 17 of the the People's Republic of China Insurance Law stipulates: "Where an insurance contract is concluded and the standard terms provided by the insurer are adopted, the insurance form provided by the insurer to the policyholder shall be accompanied by the standard terms, and the insurer shall explain the contents of the contract to the policyholder. For the clause in the insurance contract that exempts the insurer from liability, the insurer shall, when concluding the contract, make a prompt sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificate, and make a clear explanation to the applicant in written or oral form on the content of the clause; if there is no prompt or clear explanation, the clause shall not be effective." The insurance clause in dispute in this case is the format clause issued unilaterally by the appellant. According to the above-mentioned legal provisions, whether it is the exemption clause in the form clause or the ordinary contract clause, the appellant is obliged to deliver or inform the terms to the insured at the time of insurance, and the obligation should not be replaced by a return visit afterwards, which is also in line with the principle of mutual agreement at the time of the conclusion of the ordinary contract.However, after the first instance, it was found that all parties agreed that the signatures on the electronic insurance application confirmation and other relevant documents were filled in by the insurance agent privately, not signed by the applicant's authorization, and could not represent the true intention of the applicant. The appellant also cannot submit other evidence to prove that it has informed or delivered the standard contract terms involved in the case to the policyholder at the time of insurance and has prompted and clearly stated the exemption clause, and shall bear the adverse consequences. The appellant's request for the assessment of disability rating in accordance with the terms of the format contract, the proportional payment of insurance benefits and the application of the agreed effective time and the application of the "waiting period" after the entry into force of the contract to refund the premium and exempt the agreement, are not based on the law, but also obviously unfair.In this case, the appellant claimed that the contract had been terminated, but his claim contradicted the "Application for Change of Insurance Contract" submitted by him and the contents of the telephone return visit he claimed, and there was no contract or legal basis, so the court refused to accept it according to law.
With regard to the appellant's claim that the premium refunded should be deducted, the Court held that the appellant did not make the claim in the first instance. The appellant now proposes in the second instance that according to the second instance trial of the case, the court will not support it according to law. To sum up, the appellant's appeal request of a life insurance Linyi branch company cannot be established and should be rejected. In accordance with the first paragraph of Article 170 of the the People's Republic of China Civil Procedure Law, the judgment is as follows: the appeal is rejected and the original judgment is upheld.
Lawyer comment]
Article 5 of the the People's Republic of China Insurance Law stipulates: "The parties to insurance activities shall follow the principle of good faith in exercising their rights and performing their obligations." The principle of good faith, as one of the basic principles of insurance (the principle of insurance interests, the principle of good faith, the principle of proximate cause, and the principle of compensation for losses), means that the parties to an insurance contract should provide the other party with all the substantive and important facts that can affect the other party's decision to contract and perform the contract and abide by the agreements and commitments concluded in the contract.
In insurance activities, for the insurer, the main content of the principle of good faith is that the insurer should explain the insurance contract to the counterpart, especially the exemption clause in the contract and make corresponding explanations. In this case, the insurance contract signed between the insurer and the applicant has been established and comes into effect. According to the provisions of Article 15 of the Insurance Law, even if the insurance contract is still in the hesitation period, in the absence of legal provisions or other provisions in the insurance contract, the insurer does not have the right to claim the termination of the contract; in addition, the insurer fails to perform the corresponding obligation of prompt notification and explanation on the exemption clause involved in the case, Therefore, it should bear adverse consequences.
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