Retrial Examples | How should new evidence submitted at the retrial review stage be determined?

Basic case The retrial applicant Zhang refused to accept the civil judgment of a city intermediate people's court and applied to the Shandong Provincial higher people's Court for a retrial because of a dispute over the right of recourse with the respondent, a real estate development company and a property management company. Zhang applied in accordance with items (I) and (II) of Article 200 of the the People's Republic of China Civil Procedure Law (amended in 2017). Subject matter I: Apply for a retrial on the ground that there is new evidence sufficient to overturn the original judgment. Zhang applied for retrial and submitted new evidence. One was a "Power Transmission and Transformation Project Installation Agreement" signed by a real estate development company and Zhang, which confirmed that there was a contractual relationship between the two parties. Zhang advanced the project price. A real estate development company shall return the advance money and pay interest before the expiration of the agreed period. The second is two witness testimonies, confirming the construction situation and the fact of advance funds. Subject matter II: Apply for retrial on the grounds that the basic facts found in the original judgment lack evidence. The original judgment found that the "certificate" issued by a property management co., ltd. submitted by Zhang on July 20, 2007 did not have the signature or seal of the producer or the person in charge of the unit in form, and did not meet the formal requirements of the unit to issue the certification materials. the original court did not adopt the validity of the evidence. Zhang believes that although the form of the "Certificate" issued by a property management company is flawed, it can be mutually confirmed with the "Power Transmission and Transformation Project Installation Agreement" and other evidence submitted for retrial, and it is wrong for the court of second instance not to accept the "Certificate. A real estate development company and a property management company submitted a written reply that the facts in the original judgment were clear and the applicable law was correct, and requested that Zhang's retrial application be rejected in accordance with the law. retrial court decision Zhang's lawsuit request is to order a real estate development co., ltd. to repay 1.05 million yuan and interest on the project advance, and a property management co., ltd. to assume joint repayment responsibility for the above debts. In the original trial, Zhang submitted evidence such as details of construction costs, recording of calls, and proof of arrears in order to confirm his claim. As for the details of construction costs, a real estate development co., ltd. and a property management co., ltd. did not approve them. the original trial considered them to be photocopies and made by Zhang mou unilaterally. there was no corresponding construction contract, construction log, project completion settlement documents and other evidence to support them. the proof effect of the evidence and the facts to be proved were not confirmed. With regard to the recording of the call, Zhang has no evidence to prove that the recorded person is the person in charge of the construction project he claims, and the recorded person has not explicitly recognized the arrears claimed by Zhang, and in the absence of other valid evidence to support it, the validity of the recording evidence and the facts to be proved in the original trial will not be determined. In the application for retrial, although Zhang submitted two receipts from China Mobile Communications Company, it was not enough to prove the identity of the person in charge of the construction project. On the validity of the certificate of arrears. The debt certificate provided by Zhang not only has the situation that the name of the person who wrote the money does not match the seal, but also does not have the signature or seal of the manager or the person in charge of the company. Zhang's evidence does not conform to the form prescribed by law, and the original trial is not accepted, which is not improper. On May 21, 2007, a real estate development company and Zhang signed a "Power Transmission and Transformation Project Installation Agreement" on Zhang's application for retrial, which intends to confirm the existence of a power transmission and transformation project construction contract relationship between the two parties. In this regard, the retrial court held that during the first trial of this case, Zhang made the following statement on the relevant inquiries of the court: the construction project from 2004 to 2007 did not sign a written contract, only had an oral agreement with the staff authorized by a real estate development company (the name is unknown), and there was no corresponding construction quantity record and account, and the construction quantity was not signed and confirmed by a real estate development company limited. The "Power Transmission and Transformation Project Installation Agreement" signed with a real estate development company on May 21, 2007, which is now claimed by Zhang, contradicts Zhang's court statement and does not conform to the "Supreme People's Court on Application".<中华人民共和国民事诉讼法>The Court will not accept the criteria for identifying new evidence. As for the witness testimony submitted by Zhang, it is intended to confirm the construction situation and the fact of advance payment, but it is not enough to overturn the original judgment without other evidence to support it. Therefore, Zhang's retrial reason for overturning the original judgment with new evidence cannot be established. Lawyer's opinion Item 1 of Article 217 of the the People's Republic of China Civil procedure Law (amended in 2021): "only when there is new evidence sufficient to overturn the original judgment or ruling" can the conditions for retrial be met. According to the first paragraph of Article 387 of the Interpretation of the the People's Republic of China Civil Procedure Law (revised in 2020) of the Supreme People's Court, "if the new evidence provided by the retrial applicant can prove that the original judgment or ruling determines the basic facts or the judgment result is wrong, it shall be deemed as the situation stipulated in paragraph 1 of Article 200 of the Civil Procedure Law". In combination with this case, the court not only formally examines whether the new evidence submitted by the retrial applicant belongs to the new evidence submitted during the retrial, but also examines whether the new evidence is "sufficient to overturn" the facts identified in the original judgment and ruling. In the retrial review stage, the court takes the high probability as the standard for the new evidence, instead of adopting the unnecessary standard, too strict with "sufficient to overturn" as the standard may cause the application for retrial to become a mere formality. First, the retrial of new evidence must meet the standards set by the law and judicial interpretation. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation (2020 Amendment) "Article 388:" If the retrial applicant proves that the new evidence submitted by him meets one of the following circumstances, the reason for overdue provision of evidence may be determined to be valid: (1) it existed before the end of the original trial and was discovered after the end of the trial due to objective reasons; (II) it has been discovered before the end of the original trial, however, it cannot be obtained due to objective reasons or cannot be provided within the prescribed time limit; the (III) is formed after the end of the original trial, and a separate lawsuit cannot be filed accordingly. If the evidence submitted by the retrial applicant has been provided in the original trial, and the people's court of the original trial has not organized cross-examination and has not been used as the basis for the judgment, it shall be deemed that the reason for providing the evidence within the time limit is established, but the people's court of the original trial shall be in accordance with Article 65 of the Civil procedure Law ". Secondly, the probative force of the new evidence must be sufficient to overturn the original judgment and ruling in order to cause a retrial. In essence, the probative force of the new evidence must be sufficient to overturn the original judgment or ruling in order to cause a retrial. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 387 of the Interpretation (2020 Amendment): "If the new evidence provided by the retrial applicant can prove that the original judgment, ruling, the determination of the basic facts or the judgment result is wrong, it shall be deemed as the situation stipulated in Item 1 of Article 200 of the Civil Procedure Law. For the evidence that meets the provisions of the preceding paragraph, the people's court shall order the retrial applicant to explain the reasons for providing the evidence within the time limit; if he refuses to explain the reasons or the reasons are not tenable, it shall be dealt with in accordance with the provisions of paragraph 2 of Article 65 of the Civil procedure Law and the provisions of Article 102 of this interpretation". Finally, the judicial view of the People's Court of the Supreme Court also holds that at the stage of retrial review, the assurance of "sufficient to overturn" should be based on a high degree of certainty, rather than requiring new evidence to overturn the original decision. The new evidence at the retrial review stage meets the requirements of the first paragraph of Article 387 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law. How to grasp the standard of "sufficient to overturn", there are two approaches in practice: one is to adopt the standard of inevitability, that is, the original judgment must be changed after the retrial; the other is to adopt the standard of probability, that is, the evidence may overturn the original judgment. Because the retrial review procedure and the retrial procedure are two relatively independent stages in the trial supervision procedure, the purpose of the retrial review procedure is to decide whether to initiate the retrial procedure, and the retrial procedure is to make a substantive judgment on the case. The different purposes and tasks of the two procedures determine that there are significant differences between the review standards adopted by the retrial review and the retrial trial. The function of retrial review cannot be replaced by the function of retrial review. Not to mention the purpose of retrial review can be replaced by the purpose of retrial, otherwise the protection of the right of the parties to apply for retrial and the maintenance of the effective judgment of the res judicata are diametrically opposed, denying the unique procedural function of retrial review. Therefore, at the stage of retrial review, the assurance of "sufficient to overturn" should be based on a high degree of probability, rather than requiring new evidence to overturn the original decision, otherwise it is likely that the case that should be retried will not be retried or the retrial procedure will be formalized.</中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>

2022-02-07

Point of View... How is the act of the lender and the borrower conspiring to defraud the guarantor's property from the case?

1. brief In December 2008, Wu XX borrowed the name of Weng XX to establish XX Real Estate Co., Ltd., with Weng XX as the legal representative and Wu XX as the general manager. At the same time, Wu Moumou and Weng Moumou signed an agreement, agreeing that the shareholders of the company are Wu Moumou and Weng Moumou. Weng Moumou does not actually contribute capital to the company and does not participate in the operation of the company. All capital contributions of the company are borne by Wu Moumou, and all external responsibilities of the company are borne by Wu Moumou. In January 2010, the legal person of the company was changed from Weng Moumou to Wu Moumou. On February 3, 2010, Weng Moumou reported to the public security that the company's general manager Wu Moumou had embezzled his company's equity. Later, the public security filed a case for investigation with Wu Moumou suspected of falsely reporting registered capital, and took criminal coercive measures against Wu Moumou. Wu Moumou's father then signed the "Agreement" with Weng Moumou to hand over the company's seal, financial information and important documents of the company's development project to Weng Moumou. Later, Jiang Moumou sued the court with a private lending dispute, demanding that the borrower Weng Moumou perform the repayment responsibility, and the guarantor Wu Moumou's company performs joint and several liability for the loan. After the court accepted the case, Jiang Moumou applied to seal up a large number of houses under construction in Wu Moumou Company. After many court sessions, Jiang Moumou submitted an application for withdrawal to the court, and the court allowed him to withdraw the lawsuit. 2. case analysis (I) Weng used the convenience of keeping the company's official seal to forge the loan agreement and let the company provide joint and several liability guarantee for his personal loan. In this case, Wu is the actual shareholder of the company, and Weng is only a nominal shareholder. Weng Moumou kept the company's official seal on his behalf after Wu Moumou was detained by the public security. Therefore, this case needs to examine the authenticity of the loan relationship between Weng and Jiang and the authenticity of the guarantee relationship. First, the issue of the timing of the official seal on the loan agreement between Weng and Jiang. During the signing period of the loan agreement, the company's official seal was kept by Wu, who did not affix the company's official seal to the loan agreement involved. During the trial, Jiang Moumou and Weng Moumou admitted that the company's official seal was stamped by Weng Moumou afterwards. Even if there is a loan relationship, the time when the loan relationship occurs does not match the time when so-and-so crown real estate stamps. Second, according to the agreement signed between Weng and Wu, Weng is not the actual shareholder of the company and has not invested money in the company. Therefore, objectively there is no situation in which Weng has borrowed money for the company's construction in progress. Third, after Weng signed an agreement with Wu's father, the two sides had carried out the company's creditor's rights and debts check, in the handover Weng did not put forward the case of the loan and guarantee. Since the project developed by the company is an urban construction project of the so-and-so sub-district office, the so-and-so sub-district office issued a "certificate" stating that in resolving the dispute between the company and Weng, it had sent personnel to coordinate and reconcile many times. During this period, Weng Moumou himself and his agent never proposed that Weng Moumou borrowed Jiang Moumou's personal money to invest in the company's project, nor provided the company's loan guarantee evidence. Therefore, before Jiang so-and-so sued, the company and the project client so-and-so street office did not know about the loan and guarantee involved. Fourth, the total amount of the four loan agreements involved in the case is as high as more than 3728 million yuan, but the lender Jiang Moumou can not provide the source of these funds, the formation of the loan transactions, the loan process, the way the loan payment and other important evidence that can prove the real occurrence of the loan involved in the case, Jiang Moumou has no evidence to prove that the loan involved in the case actually occurred. Fifth, according to the provisions of Article 16 of the 2011 Company Law, if a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders. The company involved in the case is an independent legal person. Even if Weng is the legal representative and nominal shareholder of the company, he decides to let the company provide joint guarantee liability for his personal loan without a vote of the shareholders' meeting. Because of the violation of the provisions of the company law, it is also an invalid guarantee. (II) Weng and Jiang for the criminal purpose of illegally occupying the company's property, through the fictitious loan agreement and guarantee relationship, the use of civil litigation, defrauding the property of a certain crown, belongs to litigation fraud, the behavior of the two has constituted the crime of fraud. In this case, after the lawsuit, Jiang Moumou filed an application for property preservation against the guarantor to the court. Soon the court made a ruling to seal up the guarantor's house under construction when Jiang Moumou did not provide a full guarantee. It can be seen that the purpose of the lawsuit between Jiang and Weng is to encroach on the property of the guarantor through civil litigation, that is, the two have a clear purpose of illegal possession of the guarantor's property. It must be emphasized here that although Weng Moumou and Jiang Moumou's actions involved in the case objectively meet the constitutive requirements of the crime of false litigation, their subjective intention to illegally occupy the legal property of XX Crown Real Estate Company is very clear. And the behavior involved in the case occurred before the establishment of the crime of false litigation, according to the Supreme People's Court's Interpretation of the (IX) Time Effect of the Criminal Law Amendment, implement false litigation behavior, if the criminal law before the amendment should be investigated for criminal responsibility for the crime of fraud, embezzlement or embezzlement according to the criminal law before the amendment, the relevant provisions of the criminal law before the amendment shall apply. In general, there are only the perpetrator and the victim in fraud. The victim has a misunderstanding due to the perpetrator's deception and disposes of his own property, that is, the victim and the deceived are the same person. However, in practice, there are also cases of triangular fraud in which the victim and the deceived are not the same person. This case is a triangular fraud. The judge involved in the case is the deceived person. Based on the law, he has the right to decide whether a certain crown real estate bears joint and several guarantee liabilities. Therefore, he is the property disposer, but the victim is a certain crown real estate. In this case, the content of Weng's deception was to fabricate the loan and guarantee relationship, which made the trial judge mistakenly believe that the loan relationship and guarantee relationship existed, thus making a civil judgment that the guarantor should bear joint and several guarantee liability for the loan of more than 3728 million yuan involved. Therefore, Weng's behavior belongs to the purpose of illegal possession, through litigation to defraud the guarantor's property, constitute the crime of fraud. (III), Jiang's withdrawal does not belong to the suspension of the crime, but is forced to make a choice based on objective circumstances, which is an attempted crime. In the course of the crime, the perpetrator's influence on the perpetrator needs to be examined whether the factor other than the will causes the perpetrator to stop continuing the crime, which constitutes the suspension of the crime or the attempted crime. If factors other than will occur, but are not sufficient to prevent the continuation of the crime, and the perpetrator voluntarily gives up the crime based on such unfavorable conditions, it shall be the suspension of the crime; if a phenomenon other than will occurs and is sufficient to prevent the perpetrator from continuing to commit the crime, it shall be an attempt to commit the crime. In this case, Weng Moumou did not intend to let the guarantor XXX company participate in the trial. Weng Moumou entrusted his colleague Pan Moumou to participate in the trial on behalf of the guarantor by using the official seal and invalid business license and other materials to cooperate with him to complete the fraud crime. After Wu Moumou inadvertently learned of the lawsuit involved, Weng Moumou prevented the person entrusted by Wu Moumou from attending the trial. After the agent entrusted by Wu participated in the trial, many questions were raised about the loan and guarantee relationship in this case, and Jiang could not provide a reasonable explanation. After many court sessions, Jiang was forced to apply to the court for withdrawal after realizing that the criminal purpose of the two men could not be realized. Therefore, the criminal state of the two men is not a crime suspension, but an attempted crime.. The criminal acts of (IV) Weng and Jiang are still within the statute of limitations. Weng Moumou colluded with Jiang Moumou to fabricate the loan agreement and guarantee relationship, the total amount was as high as more than 3728 million yuan, and the guarantor Moumou Company was jointly and severally liable for the loan of more than 3728 million yuan, that is, the two persons intended to defraud the guarantor of more than 3728 million yuan worth of property through litigation. According to the sentencing regulations of Shandong Province on the crime of fraud, if the amount of fraud is 500000 yuan or more, it belongs to a particularly large amount, and shall be sentenced to fixed-term imprisonment of more than ten years or life imprisonment, and a fine or confiscation of property. According to the above provisions, Weng's fraud obviously belongs to the "extremely large amount" and should be sentenced within the scope of fixed-term imprisonment of more than ten years or even life imprisonment. According to Article 87 of my country's Criminal Law, crimes will no longer be prosecuted after the following periods: if the legal maximum sentence is less than 5 years of fixed-term imprisonment, the limitation of prosecution is 5 years; if the legal maximum sentence is more than 5 years but less than 10 years of fixed-term imprisonment, The limitation of prosecution is 10 years; if the legal maximum sentence is more than 10 years, after 15 years; if the legal maximum sentence is life imprisonment or death, after 20 years. The maximum legal penalty for fraud by Weng Moumou is life imprisonment, so the prosecution is still 20 years, and the criminal acts of the two are still within the statute of limitations and can be investigated for criminal responsibility. In summary, according to the provisions of Article 266 of my country's Criminal Law on the crime of fraud, Weng Moumou and Jiang Moumou fabricated the loan agreement and guarantee relationship, intending to embezzle the guarantor's property through civil litigation, and their actions have been suspected of fraud. Because the guarantor found out and participated in the civil action in time, the illegal possession purpose of Weng and Jiang was not realized, and it was an attempted fraud.

2021-12-30

If the third party constitutes an apparent agent in the handling of insurance business, the insured shall notify the third party of the validity of the termination of the insurance contract and the insurer.

[brief case]] On August 22, 2016, Wang mou signed an insurance contract with an insurance company to insure employer's liability insurance. the insurance period is from August 23, 2016 to August 22, 2017. the insured amount of each employee is casualty 800000 yuan, the insured amount of medical expenses is 80000 yuan, and the total insurance premium is 161280 yuan. the second paragraph of article 24 of the employer's insurance clause states that "if the applicant requests to terminate the insurance contract after the insurance liability starts, the insurance contract, the insurance contract shall be terminated, the insurer shall charge the premium for the period from the date of commencement of the insurance liability to the date of termination of the contract at the short-term rate specified in the table below, and refund the remaining portion of the premium. The part of the insured period of less than one month is charged on a monthly basis"; in addition, the two parties also signed a "payment agreement", which stipulates that the insurance premium shall be paid in installments. The agreement states: "The insurer and the insured have agreed to reach a cost payment agreement. This agreement is an integral part of the insurance contract. The insurance premium under this insurance contract will be paid by the applicant in the following way: the insurance premium will be paid in installments 1. the premium amount will be 48384 yuan, and the delivery date will be 2016.8.22;2. The premium amount will be 112896 yuan, and the delivery date will be 2016.12.31. If the policyholder fails to pay the premium as agreed, the insurer will bear the corresponding insurance liability in proportion to the actual premium paid to the total premium after the insurance accident". The payment agreement is stamped with a special seal for the appellee's underwriting business, and the operator has the signature of "Sun. After the contract was signed, Wang paid the first premium of 48384 yuan, but the final premium was not paid. In mid-December 2016, Sun called Wang to pay the premium. Wang said that he would no longer pay the premium and asked to terminate the insurance contract. Later, Sun informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Due to a dispute over the delivery of the final premium, an insurance company sued Wang to the court. After hearing, the court ruled that the 1. Wang should pay an insurance company's premium of 112896 yuan within 10 days after the judgment came into effect. 2. dismiss other claims of an insurance company. After Wang filed an appeal, the court of second instance made a judgment on August 29, 2018, and ordered the cancellation of the first-instance judgment. The appellant Wang paid the appellee an insurance company insurance premium of 32256 yuan within 10 days from the effective date of the judgment. Other claims of an insurance company of the appellee. Because of not accepting the final judgment, an insurance company applied to the Shandong Higher People's Court for a retrial, and the court ruled that an insurance company's retrial application was rejected after review. focus of controversy] The focus of the dispute in this case is mainly whether the policyholder notifies the third party involved in the case whether the termination of the insurance contract will have the effect of the termination of the contract. The court of first instance held that] Wang signed an insurance contract with an insurance company, the two sides agreed on the insurance period and liability, an insurance company in accordance with the contract has settled Wang's insurance accident, the insurance contract signed by both parties has taken effect and has been performed, Wang should pay all the premiums in accordance with the contract. An insurance company demanded Wang's 112896 yuan premium in arrears, which did not violate relevant laws and regulations and supported it. Wang's claim on the termination of the performance of the contract is not supported by evidence and is not supported. The court of second instance held that] In the opinion of the Court, Article 35 of the Insurance Law stipulates: "The policyholder may pay the full premium or the premium in instalments to the insurer in accordance with the contract." During the second instance, the appellant approved the authenticity of the copy of the payment agreement submitted by the appellant, and the payment agreement stipulated that the insurance premium involved was paid in installments. The appellant paid the initial premium as agreed and the final premium was not paid. However, the appellant claimed that he had notified Sun Mou, the manager of the insurance involved, before the expiration of the final premium, to request the termination of the insurance contract, to stop paying the premium, and to apply for Sun Mou to testify in court. The Court believes that the payment agreement involved in the case is stamped with a special seal for the appellee's underwriting business, and the handler has Sun's signature. The appellee also recognizes the authenticity of the payment agreement submitted by the appellee. Therefore, Sun's identity as the insurance handler involved in the case is confirmed by the Court. Sun testified in court that in mid-December 2016, he called the appellant for the premium, and the appellant had made it clear that he would no longer pay the premium and would terminate the insurance contract. Sun informed the person in charge of the appellee of the appellee's intention to terminate the insurance contract. Sun has no legal interest with the appellant, and the witness testimony issued by him as the insurance agent involved in the case is objective, and the court accepts the witness testimony. According to Article 24 of the employer's liability insurance clause involved in the case, the insurance contract shall be terminated from the date of notification to the appellee, and the appellee shall actually insure for five months, with an annual rate of 50%, so the total premium payable by the appellant shall be 80640. The appellant has already paid the insurance premium of 48384 yuan and must pay another insurance premium of 32256 yuan. To sum up, the original court found that the facts were wrong and should be corrected. The retrial court held that] In this case, an insurance company recognized the authenticity of the payment agreement submitted by Wang, because the person in charge of the payment agreement had Sun's signature and stamped with a special seal for the business of an insurance company, Wang had reason to believe that Sun had the right to handle the insurance business involved on behalf of an insurance company. In the original trial, Sun appeared in court to confirm that he had informed the person in charge of an insurance company of Wang's intention to terminate the insurance contract. Sun and Wang have no legal interest, and the witness testimony issued by him as the insurance agent involved in the case is objective. According to Article 24 of the employer's liability insurance clause involved in the case, the original judgment determined that since Wang notified an insurance company From the date, the insurance contract involved in the case was terminated, and it was not improper to determine the facts and apply the law. To sum up, the retrial application of an insurance company does not conform to the provisions of items 2 and 6 of Article 200 of the the People's Republic of China Civil Procedure Law. In accordance with the first paragraph of Article 204 of the the People's Republic of China Civil Procedure Law and the second paragraph of Article 395 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the ruling is as follows: Reject an insurance company's retrial application. Lawyer comment] Appreciative agency refers to a system that belongs to the unauthorized agency, but because of the cause attributable to the agent, causes the appearance or appearance of the authorized act, causes the good faith and no fault of the relative person to believe that the unauthorized agent has the power of agency and carries out legal acts with it, and the law provides for the same effect as the right to act. The constituent elements of apparent agency include:(1) the agent does not actually have the power of agency;(2) the actor has the appearance of being granted the power of agency;(3) the relative believes that the actor has the power of agency and is in good faith and without fault;(4) the relative performs legal acts with the actor based on the trust of the power of agency;(5) The appearance or appearance of the actor who is granted the power of agency can be attributed to the agent. In this case, the payment agreement involved in the case is stamped with a special seal for the underwriting business of the insurance company, and the handling person has the signature of a third person, Sun. Based on reasonable trust and the appearance of the agency, the insured Wang will no longer pay insurance premiums and terminate the insurance contract. The intention is to inform Sun that the insurance company has no evidence to prove that the appearance of the agency cannot be attributed to itself, and there is no evidence to prove that the policyholders are malicious, therefore, it should be regarded as an apparent agent, the policyholder Wang to the third person Sun a notice of the validity of the termination of the contract and the insurance company, at this time, the agent, that is, the insurance company may not claim no right to act against the agent.

2021-12-27

The statute of limitations for the exercise of insurance subrogation claims after the insurer pays insurance compensation in batches.

[brief case]] In 2012, a Tianjin Beverage Co., Ltd. (hereinafter referred to as "Tianjin Beverage Company") signed a one-year house lease contract with a scientific research institute in Chengde (now "Chengde Academy of Sciences"), agreeing that the company would lease the warehouse of the institute to store products and equipment. In December of the same year, a beverage company in Tianjin insured all risks to the Beijing branch of an insurance company. On April 20, 2013, an electrician of a scientific research institute in Chengde illegally operated, causing a fire in the warehouse, and the items stored in the warehouse of a beverage company in Tianjin were burned. Later, the Higher People's Court of Hebei Province determined in a separate civil judgment that the electrician's behavior was an act of duty, and the institute was mainly liable for compensation for the accident. After the accident, a beverage company in Tianjin applied for a claim to the Beijing branch of an insurance company for the loss of the accident. Beijing Branch of an insurance company paid insurance compensation of 2.5 million yuan and more than 1.92 million yuan to a beverage company in Tianjin on June 9, 2013 and November 11, 2014 respectively according to the insurance contract. On November 9, 2016, the Beijing branch of an insurance company filed a subrogation lawsuit with the People's Court of Shuangqiao District, Chengde City, Hebei Province. The first-instance judgment found that the first insurance compensation of 2.5 million yuan had passed the statute of limitations for subrogation. The claim for the insurance money was not supported. Later, the company appealed to the Intermediate People's Court of Chengde City, Hebei Province, and the original judgment was upheld in the second instance. In 2018, the company applied for a retrial, and the Hebei Provincial higher people's Court made a retrial judgment on November 29, 2018, finding that the first insurance compensation of 2.5 million yuan did not exceed the statute of limitations, and decided to revoke the 1. judgment of second instance. A scientific research institute in Chengde should pay compensation for fire losses to the Beijing branch of an insurance company within the scope of full insurance compensation in accordance with the proportion of fire accident liability. focus of controversy] Whether the insurance compensation claimed by the insurance company exceeds the statute of limitations. The court of first instance held that] According to the first paragraph of Article 60 of the the People's Republic of China Insurance Law, the insurance company must meet the following conditions to exercise the right of recovery: first, the insurance company has compensated the insured for the insurance money; second, the loss of the subject matter of the insurance is caused by the damage of a third party. In this case, the insurance contract relationship between a Tianjin beverage co., ltd. and the plaintiff is legal and valid. the plaintiff has paid compensation for the actual losses of a Tianjin company caused by the accident according to the insurance contract between the two parties. therefore, the plaintiff has the right to claim subrogation from a certain academy of sciences in Chengde city for 60% of the insurance premium payable. According to the provisions of Article 16, paragraph 2, of the (II) of the Supreme People's Court on the Interpretation of Several Issues Concerning the Application of the the People's Republic of China Insurance Law, the limitation period for the insurer's right of subrogation shall be calculated from the date on which it obtains the right of subrogation. According to the first paragraph of Article 60 of the Insurance Law, the insurer shall, from the date of compensation to the insured, exercise the right of the insured to claim compensation from a third party within the scope of the amount of compensation. Therefore, the date on which the insurer obtains the subrogation claim is the date on which its insurance is paid. In this case, the plaintiff paid insurance compensation of RMB 2500000 yuan and RMB 1920296.79 yuan to a company in Tianjin on June 9, 2013 and November 11, 2014 respectively. On June 9, 2013, the plaintiff's first insurance compensation of RMB 2500000 yuan obtained the right of subrogation against an academy of sciences in Chengde City. On November 11, 2014, the plaintiff's second insurance compensation of RMB 1920296.79 yuan obtained the right of subrogation against an academy of sciences in Chengde City. This case is a dispute over damages between the plaintiff, a Beijing branch of an insurance company, acting on behalf of a company in Tianjin, and the defendant. It is a lawsuit based on the debt of infringement. The limitation period of action should be two years. The limitation period for the plaintiff's first insurance compensation is from June 10, 2013 to June 9, 2015. According to Article 140 of the General Principles of Civil Law, the limitation of action is interrupted by the initiation of a lawsuit, the request of one of the parties or the consent to perform the obligation. The limitation period is recalculated from the time of the interruption. Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases stipulates that under any of the following circumstances, it shall be deemed as "a request by one of the parties" stipulated in Article 140 of the General Principles of Civil Law, which shall have the effect of interruption of the limitation of action: (2) One of the parties claims its rights by sending letters or data messages, and the letters or data messages arrive or data messages should arrive or reach the other parties. In this case, a law firm in Beijing sent a lawyer's letter EMS on claiming compensation to a scientific research institute in Chengde City on June 9, 2015. The lawyer's letter did not attach the plaintiff's authorization document. In combination with a law firm in Beijing as the agent of the insurer and the insured in the warehouse fire series case, it could not be determined that it claimed the right to a certain person in Chengde City based on the authorization act. In addition, the EMS did not arrive at the defendant on June 9, 2015, and could not interrupt the statute of limitations for the first insurance compensation. The statute of limitations for the first insurance compensation of 2500000 yuan has passed for the past two years. In this case, the limitation period of action for the second insurance compensation of 1920296.79 yuan was calculated from November 11, 2014 to November 9, 2016. The plaintiff filed a lawsuit with Chengde intermediate people's court, and the limitation period of action for the second insurance compensation of 1920296.79 yuan was not expired. According to the provisions of Article 60 of the Insurance Law, the scope of the insurer's exercise of the right of subrogation is limited to the insurance compensation paid, and the loss of interest after the insurer pays the compensation shall not be claimed to a third party. In accordance with Article 60 of the the People's Republic of China Insurance Law, Article 16 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, Article 140 of the General Principles of the Civil Law, Item (II) of Article 10 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Limitation of Action System in the Trial of Civil Cases, and Article 144 of the the People's Republic of China Civil Procedure Law, the judgment: the 1. defendant, a scientific academy of sciences in Chengde city, shall compensate the plaintiff for 1152178.07 yuan (1920296.79 X60%) of the Beijing branch of an insurance company within 15 days after the judgment comes into effect. The 2. defendant, a trading co., ltd. in Chengde city, shall not be liable for compensation; The 3. rejected other claims of the plaintiff's Beijing branch of an insurance company. The court of second instance held that] After the insurance accident occurred, the Beijing branch of an insurance company paid insurance compensation of RMB 2500000.00 yuan and RMB 1920296.79 yuan to a company in Tianjin on June 9, 2013 and November 11, 2014 respectively according to the insurance compensation request of the insured company in Tianjin and the relevant accident materials provided, indicating that the Beijing branch of an insurance company should know the infringer and infringement when paying the first insurance compensation, and an insurance company Beijing branch did not provide evidence to prove that the two insurance compensation payment methods are agreed by both parties or the legal provisions of the installment payment method, so the two insurance compensation statute of limitations should be calculated separately. The limitation period for the first insurance compensation is from June 10, 2013 to June 9, 2015. Although a law firm in Beijing sent a lawyer's letter claiming compensation to a scientific research institute in Chengde City through EMS on June 9, 2015, the lawyer's letter did not attach the authorization document of a Beijing branch of an insurance company, and it cannot be determined that it claimed rights from a certain company in Chengde City based on the authorization act, and the lawyer's letter did not arrive on June 9, 2015, there is no interruption of the statute of limitations for the first insurance compensation. The judgment of the original court that after the Beijing branch of an insurance company paid the first insurance compensation of 2500000 yuan to a Tianjin company, it claimed this right to a scientific research institute in Chengde city after two years of limitation of action was found to be not improper. The scope of the Beijing branch of an insurance company exercising the right of subrogation as an insurer is limited to the insurance compensation paid in accordance with the provisions of Article 60 of the Insurance Law. The judgment of the court of first instance against the claim of interest of an insurance company Beijing Branch was not supported, and there was nothing improper. In summary, the appellant's appeal request from the Beijing branch of an insurance company cannot be established and should be rejected. The first-instance judgment has clear facts and the applicable law is correct and should be maintained. The retrial court held that] On the question of whether an insurance company's Beijing branch claimed to a Chengde academy of sciences whether the 2500000 yuan insurance compensation exceeded the statute of limitations. The Supreme People's Court on the application

2021-12-15

Real estate perspective: the application of the extended period of overdue delivery in the context of the Civil Code.

Presentation of 1. issues In practice, the developer and the buyer signed the "commercial housing sales contract", in the agreed housing delivery period at the same time, in order to avoid the late delivery of the liability for breach of contract, agreed on a fixed period of extension, the developer does not bear the responsibility for late delivery of breach of contract. Before the implementation of the the People's Republic of China Civil Code (hereinafter referred to as the Civil Code), the Intermediate People's Court of Jinan City and the courts under its jurisdiction mostly cited the relevant provisions of the the People's Republic of China Contract Law (abolished, hereinafter referred to as the Contract Law), and tended to think that the agreement on "late delivery of extended period" was legal and effective. The terms on extended period were the agreement of both parties and did not obviously infringe the interests of the buyer, it also does not violate the mandatory provisions of laws and administrative regulations. Both parties shall perform in accordance with the agreement. The starting time for the developer to bear the liquidated damages for overdue house delivery shall be calculated after the expiration of the grace period. However, the Civil Code has made more stringent provisions on the format clause, and will there be a change in the determination of the validity of the late delivery extension period? New Rules on Form Clauses in the Civil Code of 2. Article 496, paragraphs 1 and 2, of the Civil Code Contract Code, respectively, states: "A format clause is a clause that the parties have prepared in advance for reuse and has not negotiated with the other party at the time of the conclusion of the contract." "Where a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to the terms that have a significant interest in the other party, such as the exemption or reduction of its responsibilities, and explain the terms in accordance with the requirements of the other party. If the party providing the form clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract." This provision provides for the format clause and the obligation of the party providing the format clause. Compared with Article 39 of the original Contract Law, the following major amendments have been made: 1. After "taking reasonable measures to remind the other party to pay attention to exemption or reduction of its responsibilities", the content of "clauses with significant interests with the other party" is added. This means that the clauses that exempt or reduce the responsibilities of the party providing standard clauses are not the only clauses that need to be reminded of the other party, and other clauses that have significant interests with the other party also need to be reminded. This obviously expands the scope of drawing the attention of the other party, and all clauses that have a major interest in the other party are within the scope of prompting attention. 2, increase the consequences of not fulfilling the duty of care to remind the other party. Article 39 of the original "Contract Law" does not provide for the legal consequences of not fulfilling the obligation to prompt the other party to pay attention, so it is called "soft obligation". This article supplements this by providing the legal consequences of "if the party providing the standard clause fails to perform its obligation to prompt or explain, resulting in the other party failing to pay attention to or understand the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. To advocate that "clauses that have a significant interest relationship with the other party" do not become an integral part of the contract is tantamount to declaring that it does not exist and has no effect. Such legal consequences are sufficient to warn the party providing the standard clauses to exercise utmost care and protect the other party's rights and interests., Also protect your own rights and interests. 3. This article also adds the "unreasonably" restriction language, increasing the circumstances of mitigation of liability, in other words, must achieve unreasonable exemption or reduction of its liability, increase the other party's liability, in order to make the format clause invalid. On the other hand, "excluding the main rights of the other party" is revised to "restricting the main rights of the other party", and the qualification of "unreasonable" is added. In this way, the limitation of the other party's rights and the exemption or reduction of its liability, increase the other party's liability side by side, constitute the same exemption, that is, any unreasonable exemption or reduction of its liability, increase the other party's liability, limit the other party's main rights, will lead to the invalidity of the format clause. In addition, the Civil Code has also adjusted the reasons for the invalidity of the format clause, mainly reflected in: the party providing the format clause unreasonably exempts or reduces its liability, increases the liability of the other party, and restricts the other party's main rights. These circumstances are not expected by the parties to the contract when they conclude the contract, are contrary to the purpose of the parties to conclude the contract, seriously damage the legitimate rights and interests of the other party, and obviously violate the basic principles of civil law, such as the principle of fairness. Therefore, they are all legal causes that lead to the invalidity of the standard clause. As long as one of the circumstances occurs, the standard clause is invalid. 3. related cases (I) 2021 Lu Minshen 974 Commercial Housing Sales Contract Dispute Judgment of Shandong Higher People's Court: After review, this court believes that the "Qingdao Commercial Housing presale Contract" signed by the buyer and the seller is legal and valid, and both parties should perform their contractual obligations. The "Qingdao Commercial Housing presale Contract" clearly stipulates that the delivery date is before March 31, 2019. The supplementary terms of the contract stipulate that the seller fails to deliver the house to the buyer within the time limit stipulated in this contract due to its own reasons, the buyer shall give the seller A 30-day extension period, during which the contract continues to be performed, and the seller does not need to bear the liability for breach of contract to the buyer. The buyer shall exercise prudent care over the contents of the supplementary clause, and the buyer, as a person with full civil capacity, shall be aware of the legal consequences of its signature on the contract, and the buyer shall not support the claim that the clause is a standard clause and that the seller has not fulfilled its obligation of clear notification and presentation. (II) 2021 Lu 01 Min Zhong 6181 Commercial Housing presale Contract Dispute The judgment of Jinan Intermediate People's Court: The commercial housing sales contract and supplementary agreement signed by the original and the defendant are the true intentions of the parties, and do not violate the mandatory provisions of laws and regulations, and are legal and effective. Both parties should fully perform the contract. In this case, the first item of Article 3, paragraph 8, of Annex 5 to the contract signed by the plaintiff and the defendant stipulated a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period. (III) 2021 Lu 0102 Minchu 1295 Commercial Housing presale Contract Dispute The People's Court of Lixia District of Jinan City ruled: The "Jinan City Commercial Housing Sales Contract", "Supplementary Agreement", and "Compensation Confirmation Form" signed by the buyer and the seller are the true intentions of both parties and do not violate the effectiveness of laws and administrative regulations. The mandatory provisions do not violate public order and good customs, and are legal and effective. As a person with full capacity for civil conduct, the buyer is punishing his own rights, and he has not submitted evidence to prove that the seller is in a situation of coercion or taking advantage of the danger of others, so the buyer requires the seller to pay another 90-day penalty, which has no factual and legal basis, and this court does not support it. 4. Lawyer's View The author is inclined to believe that, on the premise that the developer fulfills the obligation to prompt or explain the grace period, the "late delivery extension period" should be considered valid for the following reasons: First of all, before the entry into force of the Civil Code, the Contract Law and its related judicial interpretations contained relevant provisions on standard clauses. Combined with the search of cases before the entry into force of the Civil Code, the determination of "standard clauses" in judicial practice was still With a cautious and conservative attitude, it is determined that the agreement of "late delivery extension period" is legal and valid. The current Civil Code retains some of the provisions of the original Contract Law and related judicial interpretations on "format clauses", and the cases before the entry into force of the Civil Code have certain reference value. For example, in (2021) Lu 01 min zong No. 6177 civil judgment, Jinan intermediate people's court, following the principle of the same case and the same judgment, directly quoted the contents of the judgment of the same court: "regarding the liquidated damages for overdue house delivery, the effect of article 3, paragraph 8, of the supplementary agreement, the civil judgments (2020) Lu 01 min zong No. 9658 and No. 9661 made by Jinan intermediate people's court are as follows: the Supplementary Agreement signed by both parties stipulates a grace period of 60 days for the seller's specific delivery time. This clause is an agreement between the parties, which does not obviously infringe on the interests of the buyer, nor does it violate the mandatory provisions of laws and administrative regulations, and both parties shall perform in accordance with the agreement. Therefore, the starting time for the seller to bear the liquidated damages for overdue delivery shall be calculated after the expiration of the 60-day grace period." Secondly, on the one hand, the Civil Code makes stricter provisions on the standard clauses, but on the other hand, the provisions also add expressions such as "significant interests" and "unreasonable exemption or mitigation". There is no relevant judicial interpretation to clarify how to define "significant" and "unreasonable", which belongs to the discretion of judges in the process of hearing cases. The author believes that the "significant", "unreasonable" and other qualifiers, to a certain extent, can avoid the risk of "exemption is the format clause. Although the "Supplementary Agreement on Commercial Housing Sales Contract" will exempt the developer from the responsibility for breach of contract for overdue delivery of the house to a certain extent, it should not constitute a situation of "unreasonably exempting or reducing its responsibility and increasing the responsibility of the other party. Finally, as far as both parties are concerned, the main contractual obligation of the buyer is to pay the purchase price on time, and the main contractual right is to accept the house according to the contract; as a developer, its main contractual obligation is to deliver the commercial housing that meets the conditions stipulated by laws and regulations according to the contract. The agreement on the leniency period does not invalidate the contract or clause in Chapter 6, Section 3 and Article 506 of Title I of the Civil Code, nor does it increase the buyer's contractual obligations. It only conditionally exempts the developer from part of the responsibility as the seller, rather than completely or indefinitely exempting the developer from the responsibility of handing over the house. At the same time, the clause still stipulates that if the developer fails to hand over the house within the leniency period, the buyer may still be held liable for breach of contract in accordance with the contract and does not exclude the buyer's contractual rights. Therefore, the agreement of the late delivery grace period should not be recognized as the category of the buyer's "main rights", let alone the buyer's "main rights are restricted or excluded". To sum up, the terms of the extension period are the agreement of both parties, which does not obviously infringe on the interests of the buyers. The agreement of the extension period only delays the time for the developer to assume the responsibility of overdue delivery or exempts the developer from the responsibility of overdue delivery. Part of the responsibility, it does not fall under any of the circumstances of "unreasonably exempting or reducing its liability, increasing the liability of the other party, limiting or excluding the main rights of the other party" as stipulated in article 496 of the Civil Code.

2021-12-11

The conclusion that the vehicle inspection after the accident is not qualified is not a cause of exemption from insurance liability.

[brief case]] Zhu Moujia and other three people are the first legal heirs of the deceased in a traffic accident, the insured and driver of an accident vehicle, and the Shanghai branch of a property insurance company is the insurer of the accident vehicle. The traffic police department issued the ''Road Traffic Accident Recognition Letter'', which determined that a vehicle with a certain driving braking performance that did not meet the safety technical conditions and had a safety hazard encountered a pedestrian passing the crosswalk and did not stop to give way; Hou Mouyi did not follow the traffic signal lights. Passing (running a red light), both parties in the accident violated the Road Traffic Safety Law. According to the cause of the accident, it, it, it is determined that both parties bear the equal responsibility for the accident. The plaintiff Zhu Moujia and three others sued to the court, demanding that the Shanghai branch of a certain property insurance company bear the corresponding compensation liability. During the trial, the parties had no objection to the accident and the determination of the responsibility for the accident. The Shanghai branch of a property insurance company argued that it had already delivered the insurance clause to a certain company, and had given this clause a bold and black prompt, and informed the specific content of the exemption clause of a commercial three-way insurance by telephone. According to the aforementioned exemption clause, this case of traffic accident belongs to the situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified". The so-called unqualified inspection includes the unqualified annual inspection of the vehicle and the unqualified inspection after the accident. Therefore, the insurer refuses to bear the commercial insurance limit. Liability. Yu argued that although he had received the insurance clause, the accident vehicle had been inspected annually in accordance with the regulations and passed the annual inspection. There was no problem with the braking of the vehicle before the accident, which was not a case of exemption from insurance liability. He was willing to bear the compensation liability beyond the insurance limit. focus of controversy] Whether this traffic accident is an applicable situation of the commercial three-party insurance exemption clause. The court considered] After hearing, the court held that according to the legal nature of the exemption clause, following the meaning and spirit of Article 15 of the regulations on the implementation of the road traffic safety law, and comprehensively considering other factors such as the legitimate expectation of the insured, the degree of fault of the driver, and the general cognition of the public, the accident in this case does not belong to the case of exemption from insurance liability. The court ruled that the Shanghai branch of a property insurance company should pay the plaintiff 299522.8 yuan for compulsory insurance and commercial insurance. For the insurer's refusal to claim based on the exemption clause of the insurance contract, the trial idea of "from form to reality" and "combination of form and reality" should generally be followed. First of all, in form, it is necessary to examine whether the insurer has fulfilled the obligation of service, prompt and notification of the insurance terms. In this case, the Shanghai branch of a property insurance company has served the insurance terms to the policyholder, in which the exemption clause is also bolded and blackened, and the terms are read out to the policyholder in the form of telephone recording. Therefore, in terms of form, the insurer has fulfilled the corresponding legal obligations. Secondly, in terms of content, the meaning of the contract needs to be interpreted in a manner consistent with the nature of the exemption clause and the legislative intent. According to the insurance clause involved in the case: "When the insured motor vehicle driving license or number plate is canceled in the event of an insurance accident, or fails to inspect or fail to pass the inspection as required" is one of the items exempted from insurance liability. First, as far as the nature of the insurance clause is concerned, it is a form clause provided by the insurer to exempt the insurer from its own obligations, and the understanding of this clause is disputed between the insurer and the policyholder. According to the provisions of the the People's Republic of China Civil Code: if there is a dispute over the understanding of the format clause, it shall be interpreted in accordance with the usual understanding. If there are two or more interpretations of the form clause, an interpretation that is not conducive to the party providing the form clause shall be made. The exemption clause should be interpreted against the insurer. Secondly, in terms of legislative intent, Article 15 of the regulations on the implementation of the Road Traffic Safety Law clearly stipulates that motor vehicle safety technical inspection shall be carried out by motor vehicle safety technical inspection institutions. Based on the meaning of this administrative regulation, the exemption clause refers to "failure to inspect or fail to pass the inspection in accordance with the regulations", which is generally understood to mean that the vehicle is not inspected regularly and in accordance with the regulations to the motor vehicle safety technical inspection institution or the vehicle is inspected by the motor vehicle safety technical inspection institution. The insurer should not make an expansive interpretation of this exemption from its liability after the accident. Third, the insurer should make a substantive and specific detailed description of the content of the insurance exemption clause. Although the insurer orally read out the exemption clause to the policyholder, it did not clearly explain to the policyholder the specific content of the category, subject, method, and time limit of the "inspection according to regulations" referred to in the exemption clause. The insurer shall bear the adverse legal consequences arising from the unclear notification. Finally, in the result, the application of the exemption clause should be consistent with the legitimate expectations of the policyholder and the degree of fault of the actor. In this case, Yu has submitted the accident vehicle for inspection according to regulations and schedule, and passed the inspection. When the accident occurred, it also took the necessary braking measures to actively prevent the occurrence of the accident involved. Although it is recorded in the "Road Traffic Accident Identification Letter" that the braking performance of the accident vehicle does not meet the safety technical conditions and has potential safety hazards, the accident occurred suddenly. It is difficult for a certain vehicle to make accurate self-inspection, evaluation and complete elimination of potential safety hazards in advance. The psychological expectation of taking out commercial triple insurance is also to replace or reduce its own liability for compensation in the event of a traffic accident. Therefore, the exclusion of the aforementioned insurance exemption clause is more in line with the general perception and legitimate expectations of the public. Lawyer Advice] In practice, insurance companies often encounter the need to deal with the customer's vehicle out of danger due to traffic accidents. When making an insurance claim, if it is found that the claim may be "strange" and refused to settle the claim, it is difficult to be identified only on the basis of the "road traffic accident identification" issued by the traffic police department in the lawsuit. Although the ''Road Traffic Accident Recognition Letter'' determines that the accident vehicle does not meet the safety technical conditions and has safety hazards, due to the lack of other evidence to strengthen it, the inspection conclusion after such an accident is usually determined in judicial practice as not belonging to the insurance exemption clause. The situation of "the vehicle is not inspected in accordance with the regulations or the inspection is unqualified. Therefore, in the process of informing the insurer of the relevant exemption clause, the insurance company needs to inform the insurer in detail and comprehensively, and should make a substantive and specific detailed explanation to the policyholder on the content of the exemption clause, and fix and retain the relevant evidence to prevent claims and litigation risks.

2021-12-11

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

[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.

2021-12-09

Viewpoint... A brief analysis of the responsibility of law firms in the securities market -- take the "Five Foreign Bonds Case" as an example.

1. Introduction In 2015, Wuyang Construction Group Co., Ltd. (hereinafter referred to as Wuyang Construction) issued a bond of 1.36 billion yuan to the public, which was materially defaulted due to its failure to pay the principal and interest as scheduled. After investigation by the CSRC, Wuyang Construction has false records in the issuance application documents. After the investor claims to the issuer and the intermediary to pursue its liability. In September 2021, the Zhejiang Provincial High Court made a final judgment on the case, rejecting the appeals of various intermediary agencies, and ruled that all intermediary agencies in this case were jointly and severally liable. Among them, the court held that Shanghai Jintiancheng Law Firm issued a legal opinion for the bond issue, did not work diligently and dutifully, there was a certain fault, and decided that Jintiancheng Law Institute should be responsible for 5% of the scope of joint and several liability. This case is the first case of the application of the representative litigation system in the field of securities in China, and it is also the first time that a law firm has been included in the scope of joint and several liability, thus causing a lot of waves in the industry. 2. case analysis 1. Inadequacy of the reasoning part of the court decision In the first instance judgment of this case, the Hangzhou Intermediate Court's reasoning part of the responsibility of Jintiancheng Law Firm is as follows: Under the circumstances that Dagong International's 2015 Corporate Bond Credit Rating Report has prompted Wuyang Construction Holding Subsidiary to sell investment real estate, Jintiancheng Law Firm has not paid attention to the verification of the major contract and the major asset changes involved, has not conducted due diligence on the ownership of real estate, and has not found the legal risks to Wuyang Construction's solvency caused by the relatively high reduction of major assets. Therefore, Jintiancheng Law Firm has not worked diligently and is at fault. It is not difficult to see that the court believes that the law firm's fault lies in the failure to find that Wuyang Construction has a relatively high proportion of significant asset reductions, but what is the basis for this fault? What is the scope of the law firm's due investigation? Is the law firm capable of having an obligation to investigate asset changes? Is there a causal relationship between the law firm's fault and the bond default? The court did not elaborate further. In fact, the law firm does not have much power to conduct a comprehensive investigation of the issuer in the process of issuing bonds. In other words, as an intermediary, the due diligence ability and authority of law firms are completely different from those of administrative agencies. It is undoubtedly a harsh criticism to impose requirements on intermediary agencies with the verification ability of administrative agencies and exchanges as a general standard. It would be far-fetched for the court to decide that the firm was liable on this point alone, especially since it is estimated that Jintiancheng's liability is about 500 times as much as the service fee it charges. 2. Intersection of commercial and legal risks The supervision of the securities market by law firms is mainly reflected in the control of legal risks, but the rating report in this case shows that the company sells investment properties. It is questionable whether this should be included in the scope of legal risk review. The sale of real estate in exchange for the purchase of a house is a price exchange, even if the final reduction of assets, is also a normal business risk faced by the company, such a decision may be based on the future development of the company's various considerations, if the regulatory authorities only engage in the results of the determination of violations, it is not a cause of suspicion. The law's regulation of commercial risk is more procedural than substantive, which also requires the law to focus on the static ownership of assets rather than dynamic asset changes in the reality of the investigation, in fact, lawyers do not have the ability to fully estimate and predict the risk of the commercial field. Of course, commercial risk and legal risk are by no means distinct, and the outcome of the case also suggests that legal practitioners should pay attention to the investigation of such two related situations. 3. Law Firm Liability Boundaries 1. The basis for the joint and several liability of the law firm. According to Article 163 of the Securities Law, if the documents produced or issued by a securities service institution contain false records, misleading statements or material omissions, causing losses to others, it shall be jointly and severally liable with the principal, except where it can prove that it is not at fault. It follows that this is a presumption of fault liability, the problem is how to determine the fault of the law firm, and the determination of whether there is fault involves the law's obligations in the securities market. The Securities Law does not clearly stipulate this. According to Article 14 of the "Administrative Measures for Law Firms Engaging in Securities Legal Business" (hereinafter referred to as the "Administrative Measures") issued by the Ministry of Justice and the China Securities Regulatory Commission, when lawyers issue legal opinions, they are related to the law. The business matters of China shall perform the special duty of care of legal professionals, and perform the general duty of care of ordinary people for other business matters. This provision distinguishes between two different types of duty of care. Article 15 of the Administrative Measures stipulates that documents directly obtained by lawyers from state agencies, organizations with the function of managing public affairs, accounting firms, asset appraisal agencies, credit rating agencies, and notary agencies may be used as the basis for issuing legal opinions, but Lawyers shall perform the duty of care stipulated in Article 14 of these Measures and explain them. The question about this article is to what extent of the duty of care does the law firm review the materials issued by other intermediaries? What is the difference between the special duty of care and the general duty of care? These are not clearly defined, which gives the court more room for discretion. 2. Understanding within the framework of existing rules The process of issuing legal opinions by law firms often involves the review of a large number of materials issued by other institutions, so when these materials are falsely recorded, is the law firm necessarily liable? The answer is no. The court in this case also did not point out that the law firm should bear full responsibility for the untruthfulness of the materials, but the key lies in whether the law firm is diligent and conscientious in the investigation process, that is, whether it has fulfilled the relevant duty of care. Therefore, according to Article 14 of the Administrative Measures, it is particularly important to distinguish between legal and non-legal matters. The author believes that in the absence of clear legal rules and guidelines, the "Rules for the Reporting of Information Disclosure of Publicly Issued Securities Companies" No. 12 issued by the China Securities Regulatory Commission has certain reference value. The specification makes more detailed provisions on the contents of legal opinions and lawyers' work reports, which is an important basis for clarifying lawyers' duty of care in the securities market. In practical work, it is worth noting that matters that meet the duty of special attention should be shown through a clear carrier, and in the process of making legal opinions, attention should be paid to the process of collecting and fixing relevant evidence. keep relevant examination records and working papers, in order to reduce the risk of liability. 3. A brief outlook for the future of the responsibility of intermediaries. Accurate data-based trial mode is the general trend of judicial reform in the future, and it is no exception in the highly digital securities market. The author thinks that the judicial organ can at least consider the responsibility determination in the following aspects: first, distinguish the size of the fault according to subjective factors, such as intentional, knowing that it should be known and laissez faire or gross negligence, general and minor negligence; second, it pays attention to the argument of causality, focusing on the extent to which the behavior of intermediary institutions leads to the final loss of investors; finally, the unity of power and responsibility, liability should be adapted to the fees charged by the intermediary. 4. epilogue After the implementation of the new "Securities Law", my country's protection of the rights of small and medium investors in the securities market has reached a new level, but judicial practice has also brought doubts about the excessive crackdown on intermediaries and "overcorrection. As legal workers, we should clearly understand the risks of the work of lawyers in the securities market, improve the level of understanding of relevant laws and regulations, and constantly promote the development and improvement of various systems in China's securities market.

2021-12-08

If the insurance company fails to inquire about the relevant situation of the insured, the insured shall not have the obligation to inform.

[brief case]] Zu took out personal insurance with an insurance company, and later Zu was diagnosed with "right breast cancer" and was rejected from an insurance company, so he filed a lawsuit. An insurance company argued that Zu did not fulfill the obligation of truthful notification when he was insured. He deliberately concealed that he had suffered from diabetes, solid liver nodules, abnormal liver function and other diseases, and confirmed the major diseases listed in the contract during the waiting period. According to the insurance contract, the insurance company has the right not to pay the insurance premium. After review, the "Health Notice" in the "Insurance Contract" signed by an insurance company and Zu did not mention the inquiries about gestational diabetes, solid liver nodules, and abnormal liver function, and an insurance company did not provide evidence to prove it When applying for insurance, he explained to Zu that the "diabetes" included gestational diabetes, and did not ask Zu whether he had abnormal liver function or solid liver nodules. The People's Court held that the insurance company did not provide evidence to prove that it had asked Zu whether he had suffered from gestational diabetes, abnormal liver function, and solid liver nodules when applying for insurance. Therefore, Zu did not ask questions that the insurance company did not ask. There is no obligation to inform, and the insurance company should pay insurance money to Zu. focus of controversy] Whether Zu has fulfilled the obligation of truthful notification at the time of insurance, and whether the insurance company should bear the responsibility of paying the insurance premium. The court of first instance held that] The Court considers that this case is a dispute over a life insurance contract. The insurance contract signed by Zu and an insurance company is the true intention of both parties. The content does not violate the prohibitive provisions of laws and regulations. It is a valid contract. Both parties should strictly perform their respective obligations in accordance with the contract. The focus of the dispute in this case is: whether an insurance company should pay 350000 yuan to Zu. In this dispute, first of all, an insurance company claimed that Zu did not fulfill the obligation to tell the truth. In combination with Zumou's medical history of "liver nodules" and the requirements of "Health Notification", Zumou has truthfully replied. An insurance company did not submit evidence that Zu had diabetes when he was insured. Secondly, an insurance company claims that Zu has developed symptoms related to the major illness agreed upon in the insurance contract during the waiting period of the insurance contract. According to the existing evidence, Zu found a right breast nodule on October 20, 2019, and underwent medical treatment and examination in November 2019, and was finally diagnosed with breast cancer after re-examination and treatment in March 2020. Although the time of Zu's first visit is within the waiting period of the insurance contract, it belongs to normal examination and treatment. The symptoms of the examination result are the same or similar to the early symptoms of breast cancer. Patients with the above symptoms are only likely to be diagnosed with breast cancer and other cancer diseases, but it is not inevitable. It can not be determined that Zu has breast cancer during this period. Zumou was diagnosed with the first illness for more than the waiting period for the insurance contract. The circumstances of this case are in line with the relevant provisions of the major disease insurance in the insurance contract involved in the case. "The insured shall be diagnosed by a Junior College doctor in a medical institution designated or approved by the company for non-accidental reasons within 180 days from the effective date of the contract." One or more major diseases listed "is obviously inconsistent. The relevant defense of an insurance company lacks factual basis and is not supported by this court. Third, an insurance company argued that Zu should report the deterioration of his health to him during the waiting period of the insurance contract in accordance with Article 52 of the the People's Republic of China Insurance Law. This clause is in response to the provisions of the property insurance contract on the "obligation to notify of increased risk", and the insurance contract in question is a life insurance contract. An insurance company invoking this provision to claim exemption is an error in the application of the law, which is not adopted by the Court in accordance with the law. In summary, the Court does not support the relevant defenses of an insurance company. The court of second instance held that] The Court held that the case was a dispute over a life insurance contract. According to Article 323 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law, the people's court of second instance shall hear the appeal request of the party concerned. If the party concerned fails to appeal, the case shall not be heard. Combined with the arguments of both parties, the focus of the dispute in the second instance of this case is: whether the 1. Zu has fulfilled the obligation of truthful notification when applying for insurance; whether the 2. Zu has been diagnosed with breast cancer during the waiting period of the insurance contract. With regard to the first focus of the dispute, the question of whether Zu had fulfilled his obligation to tell the truth when he was insured. 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." Paragraph 1 of Article 6 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: "The obligation of the policyholder to inform is limited to the scope and content of the insurer's inquiry. If the parties dispute the scope and content of the inquiry, the insurer shall bear the burden of proof." According to the provisions of the above-mentioned laws and judicial interpretations, the current law of our country adopts the mode of inquiry and notification, that is, the insurer asks about the subject matter of the insurance or the relevant situation of the insured, and the policyholder truthfully informs the questions asked, and the scope of the policyholder's notification is limited to the questions asked by the insurer. In this case, an insurance company claimed that Zu did not truthfully inform gestational diabetes, abnormal liver function and solid liver nodules at the time of insurance. Therefore, an insurance company should prove that it has asked Zu whether he has or has suffered from the above three diseases at the time of insurance. Only on the premise of an insurance company's inquiry, Zu has the corresponding obligation to inform. About whether gestational diabetes falls within the scope of what should be told truthfully. An insurance company inquires about Zu at the time of insurance through the Health Notice. Among them, the Health Notice asks "Do you have or have suffered from the following diseases or symptoms, or have been examined or treated for the following diseases?... (4) Endocrine or immune system diseases (diabetes mellitus...)". It can be seen that an insurance company only asked whether Zu had or had had diabetes, but did not ask whether Zu had or had had gestational diabetes. An insurance company did not prove that the meaning and type of "diabetes" included gestational diabetes, nor did it prove that the expanded interpretation of "diabetes" included gestational diabetes at the time of the conclusion of the contract. Moreover, in the gestational glucose tolerance test, the index of the 1-hour blood glucose test result in only one prenatal examination slightly exceeded the normal value range, and the 2-hour test result was within the normal value range. The other blood glucose tests conducted by the prenatal examination and the blood glucose test results during the subsequent hospitalization due to illness were all normal. An insurance company had no evidence that Zu had diabetes. Therefore, an insurance company did not ask whether Zu had gestational diabetes when applying for insurance, and Zu did not have the obligation to truthfully inform gestational diabetes. Whether abnormal liver function and liver solid nodules belong to the scope that should be truthfully informed. An insurance company asks through the Health Notice, "Do you have or have ever had the following diseases or symptoms, or have you been examined or treated for the following diseases?... (5) Digestive system diseases (×× virus infection or carrying, liver cirrhosis, severe ××...)". It can be seen that at the time of insurance, an insurance company asked Zu whether he suffered from or had suffered from XXX virus infection or carrying, liver cirrhosis and severe XXX diseases. An insurance company did not ask Zu whether there was any "abnormal liver function" in the examination report, did not explain which liver diseases "abnormal liver function" included, and did not ask Zu whether he had solid liver nodules. Regarding the solid nodules of the liver, Zumou was diagnosed as hepatic hemangioma by examination. Zumou had voluntarily and truthfully informed him that he had suffered from hepatic hemangioma and the diameter of the hemangioma was not more than 5cm. Therefore, because an insurance company did not ask whether Zu had abnormal liver function or solid liver nodules when applying for insurance, Zu did not have the obligation to tell the truth. To sum up, an insurance company did not ask Zu whether he had gestational diabetes or whether he had abnormal liver function or solid liver nodules. Zu did not have the obligation to tell the truth about the questions that the insurance company did not ask. An insurance company claimed that Zu did not fulfill the obligation of truthfully informing when applying for insurance, lacking factual basis and legal basis, and the court did not support it. On the second focus of the dispute, whether Zumou was diagnosed with breast cancer during the waiting period of the insurance contract. The critical illness insurance clause of the insurance contract involved in the case states that the insured shall be diagnosed by a Junior College doctor in a medical institution designated or approved by the company for non-accidental reasons within 180 days from the effective date of the contract. For one or more major diseases, the company shall pay the basic critical illness insurance premium according to the accumulated insurance premium (without interest) paid by the insured in this contract, and this contract shall be terminated at the same time. According to the provisions of the above-mentioned insurance terms, if the insured is diagnosed with a major illness listed in the contract within 180 days of the waiting period, the insurer shall only pay the basic major illness insurance premium in accordance with the amount of the insurance premium paid by the policyholder, and the contract shall be terminated. The first paragraph of Article 64 of the the People's Republic of China Civil Procedure Law stipulates that the parties have the responsibility to provide evidence for their claims. An insurance company claims that Zu was confirmed to have breast cancer within 180 days of the waiting period, and an insurance company bears the burden of proof. The waiting period for the insurance contract involved is 180 days from June 16, 2019 to December 12, 2019. On October 20, 2019, the physical examination showed a right breast nodule. On November 10 and 26, 2019, Zu went to hospital for B- ultrasound examination and was diagnosed as right breast nodule grade BI-RADS3. An insurance company has no proof to prove that the BI-RADS3 level of breast nodules is the standard for the diagnosis of breast cancer. Therefore, the examination conclusion "BI-RADS3 level of right breast nodules" cannot prove that Zu has been diagnosed with breast cancer. An insurance company has no proof that Zu has been diagnosed with breast cancer as of December 12, 2019, and an insurance company claims that Zu was diagnosed with breast cancer during the waiting period, which lacks factual basis. According to the existing evidence, the court of first instance found that Zu had exceeded the waiting period of the insurance contract involved in the case when he was diagnosed with breast cancer. Based on the above analysis, the evidence submitted by an insurance company is not enough to prove that Zu did not fulfill the obligation of truthful notification when applying for insurance, and there is no evidence to prove that Zu was diagnosed with breast cancer during the waiting period. Breast cancer belongs to the scope of claims stipulated in the insurance contract involved in the case, Zu is in the insurance contract waiting for the expiration of the diagnosis of the above-mentioned disease, an insurance company also has no evidence to prove that there is an exemption from insurance liability in this case, so an insurance company should pay Zu a full amount of insurance compensation agreed in the insurance contract. Lawyer Advice] According to the provisions of the Insurance Law and other relevant laws and regulations, the policyholder's obligation to inform is limited to the scope and content of the insurance company's inquiry. For questions that the insurance company has not asked, the policyholder does not have the obligation to inform, and if both parties dispute the scope and content of the inquiry, The insurance company shall bear the burden of proof. Through this case, it is suggested that the insurance company should strictly fulfill the corresponding obligation of inquiry and notification when carrying out insurance business, and make the scope and content of the inquiry as specific and clear as possible to avoid ambiguity.

2021-12-08

In the case of the case, the insurance company has not exercised the right to terminate the contract within the statutory time limit, and may not refuse compensation on the basis of the policyholder's failure to perform the obligation of truthful notification.

[brief case]] In June 2017, Liu purchased personal accident insurance from a property insurance company through online insurance, which covers 1-3 categories. When Liu filled in the insurance information, he chose the occupation of being an expatriate (belonging to category 2). After the successful payment of the insurance, a property insurance company issued an insurance policy. The insurance period recorded in the policy is from June 18, 2017 to June 17, 2018. The coverage includes: accidental injury death disability insurance amount of 500000 yuan, accidental injury medical expenses insurance amount of 30000 yuan, hospitalization living allowance insurance amount of 36000 yuan, each accident accidental injury medical expenses without deductible, according to the proportion of 100 compensation, hospitalization living allowance only protects the insured due to accidental injury caused by hospitalization, does not protect the insured due to illness caused by hospitalization, there is no deductible for each accident hospitalization living allowance, and the daily compensation is 200 yuan. During the insurance period, the number of days of each compensation shall not exceed 90 days, and the total accumulated number of days of compensation shall not exceed 180 days. At the end of January 2018, Liu was accidentally injured at work, and was diagnosed as 1. Avulsion of the left forearm was completely severed; 2. Open fracture and dislocation of the left elbow joint. From January 31, 2018 to March 31, 2018, Liu was hospitalized in the hospital and spent 163474.44 yuan on medical expenses. On February 1, 2018, a property insurance company investigated Liu's work with Liu's colleague, who said that he and Liu were both drilling pile operators in a mechanical and electrical decoration engineering company. Later, a property insurance company refused to settle the claim on the grounds that the occupation informed by Liu when he was insured did not match the actual occupation. focus of controversy] Whether the insurance company should be liable for insurance claims. The court of first instance held that] According to the provisions of Article 16 of the the People's Republic of China Insurance Law: "If an insurance contract is concluded and the insurer makes inquiries about the subject matter of the insurance or the relevant circumstances of the insured, the applicant shall truthfully inform him. 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 for compensation or payment of insurance benefits. ......" In this case, a property insurance company on February 1, 2018, after knowing that Liu's insured occupation was inconsistent with the actual occupation, it did not exercise the right of discharge within 30 days, which did not meet the exemption of the above-mentioned legal provisions, and this defense of a property insurance company could not be established. A property insurance company shall bear the insurance liability in this case. According to the insurance policy and insurance terms, combined with Liu's disability grade and hospitalization medical situation, the judgment supports Liu's claim, that is, a property insurance company shall pay Liu 250000 yuan for accidental disability compensation, 30000 yuan for accidental injury medical expenses and 11600 yuan for hospitalization living allowance. The court of second instance held that] According to the facts found by the court of first instance, a property insurance company knew that Liu's insured occupation was inconsistent with his actual occupation when investigating Liu's work on February 1, 2018, but a property insurance company did not exercise the right of discharge within 30 days, the court of first instance found that a property insurance company's defense of not assuming insurance liability on the grounds that Liu did not truthfully inform the profession did not conform to the exemption situation stipulated in Article 16 of the the People's Republic of China Insurance Law, which had a factual basis, and the court maintained it. At present, it takes longer for a property insurance company to appeal and explain its follow-up investigation and approval process in the trial, which is not enough to be the reason for it to exercise the right of discharge beyond the legal time limit. The appeal of a property insurance company could not be established and the Court rejected it. Lawyer Advice] In the course of insurance business, it is inevitable that the policyholder fails to truthfully inform the insurance company about the subject matter of the insurance or the insured, in which case the insurance company has the right to unilaterally terminate the insurance contract, but the right of termination must be exercised within the statutory time limit. Through this case, it is recommended that insurance companies carry out regular business training on the Insurance Law and other relevant laws and regulations and common risks and precautions in business practice, so as to avoid failure to fulfill legal obligations, exceeding the legal time limit, etc., resulting in the inability to refuse compensation in accordance with the law and the trial. The adverse consequences of the inability to effectively defend.

2021-12-03