中、日保险法的告知义务制度比较研究
发布时间：2018-08-02 13:19
【摘要】： 如实告知义务是保险法上一项古老而重要的制度,它直接涉及保险法的两大基本原则——“最大诚信”原则及“对价平衡”原则,在保险法上有着举足轻重的地位。告知义务制度的健全与完善在保险合同法理论研究中历来受到较多的关注,是保险法制进程中的一项重要课题。在保险实务中,我国保险市场上存在的大量不公平交易、不诚信行为及理赔难等现象也大都与告知义务制度有关。而在司法实践领域,与如实告知义务有关的保险人拒赔或投保人欺诈案件也占多数。鉴于告知义务制度在理论与实务中的重要性,本文拟从比较法的角度,以中日两国相继修改保险法为研究背景,对中日两国保险法上的告知义务制度进行深入分析。 笔者立足于保险告知义务的概念、法理依据等基本理论,围绕中日两国保险上告知义务制度的修改背景、修改内容以及告知义务的主体、履行方式、构成要件、重要事项、解除权等问题,逐一进行了细致的对比分析。本文研究目的在于,通过归纳、分析,对我国保险法告知义务制度的构建提出合理性意见,以促进我国相关立法的完善,为我国保险行业的健康发展提供法律保障。 本文内容共分四章展开。首先,第一章主要运用历史研究的方法,对告知义务制度的概念、起源、法律性质、法理依据等进行分析,以求正确理解和把握告知义务制度的内涵。 第二章主要针对中日两国近期对保险合同法的修改,在两国修法背景以及告知义务条款方面的修改内容做了简要阐述。希望通过两国新旧保险立法的对比,,理清中日之间保险立法的差异点及变化趋势。 第三章主要对中日保险法上告知义务的构成要素进行了对比研究。本章围绕告知义务的主体、履行方式、履行时间、告知事项的界定、违反告知义务的主客观要件及法律后果等方面,逐一进行了深入探讨。本章是对中日保险法告知义务进行比较法研究的重点段落,在对中日两国具体的法律条文及学说理论的对比、评析的基础上,提出一些自己的观点,并为第四章中我国保险告知义务制度的修改及完善建议的提出做好铺垫。 第四章在总结前文的基础上,对我国保险法告知义务制度中存在的不足进行了梳理,并提出了修改与完善的建议。主要包括告知义务主体的完善、告知事项及解除权阻却制度的完善等方面。
[Abstract]:The obligation to inform truthfully is an old and important system in the insurance law. It is directly related to the two basic principles of the insurance law-the principle of "maximum good faith" and the principle of "balance of consideration", which plays an important role in the insurance law. The perfection and perfection of the obligation to inform has always been paid more attention in the theoretical study of insurance contract law, and it is an important subject in the process of insurance legal system. In the practice of insurance, there are a lot of unfair transactions, dishonest behavior and difficult claims in the insurance market of our country, which are mostly related to the obligation to inform. But in the judicial practice field, the insurer refuses to compensate or the policy-holder fraud case which is related to the truthful obligation of informing also accounts for the majority. In view of the importance of the obligation of notification system in theory and practice, this paper intends to make a thorough analysis of the system of disclosure obligation in the insurance law of China and Japan from the perspective of comparative law and with the background of the successive revision of insurance law between China and Japan. Based on the concept of insurance obligation of disclosure, legal basis and other basic theories, the author revolves around the background of the modification of the system of the obligation of notification in insurance between China and Japan, the modification of the content, the subject of the obligation of notification, the way of performance, the composing elements, and the important matters. Release power and other issues, one by one, a detailed comparative analysis. The purpose of this paper is to put forward reasonable opinions on the construction of the obligation of informing system in China's insurance law through induction and analysis in order to promote the perfection of relevant legislation of our country and to provide legal guarantee for the healthy development of insurance industry in China. This paper is divided into four chapters. First of all, the first chapter mainly uses the method of historical research to analyze the concept, origin, legal nature and legal basis of the obligation to inform system, in order to correctly understand and grasp the connotation of the obligation to inform system. The second chapter mainly focuses on the recent amendments to the insurance contract law between China and Japan, the background of the two countries' amendment law and the content of the modification of the terms of the obligation to inform. The author hopes to clarify the differences and trends of insurance legislation between China and Japan through the comparison of new and old insurance legislation between the two countries. The third chapter makes a comparative study on the constituent elements of the obligation to inform in the insurance law of China and Japan. This chapter focuses on the subject, the way of performance, the time of performance, the definition of the matter of notification, the subjective and objective elements of breach of the obligation of notification and the legal consequences, etc. This chapter is the focus of the comparative study on the obligation to inform of the Sino-Japanese insurance law. On the basis of the comparison and analysis of the specific legal provisions and theories between China and Japan, this chapter puts forward some points of view. And the fourth chapter of China's insurance obligation to inform the system of modification and improvement of the proposal to do a good job. On the basis of summarizing the above, the fourth chapter combs the deficiency in the system of informing obligation of insurance law of our country, and puts forward some suggestions to revise and perfect it. It mainly includes the perfection of the subject of obligation of informing, the matter of informing and the perfection of the system of lifting the right and hindrance.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.284;D931.3
本文编号：2159564
[Abstract]:The obligation to inform truthfully is an old and important system in the insurance law. It is directly related to the two basic principles of the insurance law-the principle of "maximum good faith" and the principle of "balance of consideration", which plays an important role in the insurance law. The perfection and perfection of the obligation to inform has always been paid more attention in the theoretical study of insurance contract law, and it is an important subject in the process of insurance legal system. In the practice of insurance, there are a lot of unfair transactions, dishonest behavior and difficult claims in the insurance market of our country, which are mostly related to the obligation to inform. But in the judicial practice field, the insurer refuses to compensate or the policy-holder fraud case which is related to the truthful obligation of informing also accounts for the majority. In view of the importance of the obligation of notification system in theory and practice, this paper intends to make a thorough analysis of the system of disclosure obligation in the insurance law of China and Japan from the perspective of comparative law and with the background of the successive revision of insurance law between China and Japan. Based on the concept of insurance obligation of disclosure, legal basis and other basic theories, the author revolves around the background of the modification of the system of the obligation of notification in insurance between China and Japan, the modification of the content, the subject of the obligation of notification, the way of performance, the composing elements, and the important matters. Release power and other issues, one by one, a detailed comparative analysis. The purpose of this paper is to put forward reasonable opinions on the construction of the obligation of informing system in China's insurance law through induction and analysis in order to promote the perfection of relevant legislation of our country and to provide legal guarantee for the healthy development of insurance industry in China. This paper is divided into four chapters. First of all, the first chapter mainly uses the method of historical research to analyze the concept, origin, legal nature and legal basis of the obligation to inform system, in order to correctly understand and grasp the connotation of the obligation to inform system. The second chapter mainly focuses on the recent amendments to the insurance contract law between China and Japan, the background of the two countries' amendment law and the content of the modification of the terms of the obligation to inform. The author hopes to clarify the differences and trends of insurance legislation between China and Japan through the comparison of new and old insurance legislation between the two countries. The third chapter makes a comparative study on the constituent elements of the obligation to inform in the insurance law of China and Japan. This chapter focuses on the subject, the way of performance, the time of performance, the definition of the matter of notification, the subjective and objective elements of breach of the obligation of notification and the legal consequences, etc. This chapter is the focus of the comparative study on the obligation to inform of the Sino-Japanese insurance law. On the basis of the comparison and analysis of the specific legal provisions and theories between China and Japan, this chapter puts forward some points of view. And the fourth chapter of China's insurance obligation to inform the system of modification and improvement of the proposal to do a good job. On the basis of summarizing the above, the fourth chapter combs the deficiency in the system of informing obligation of insurance law of our country, and puts forward some suggestions to revise and perfect it. It mainly includes the perfection of the subject of obligation of informing, the matter of informing and the perfection of the system of lifting the right and hindrance.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.284;D931.3
【参考文献】
相关期刊论文 前2条
1 沙银华;姬文娟;;日本保险立法对我国的启示[J];保险研究;2008年10期
2 岳卫;;日本《保险法》的立法原则及对我国的借鉴意义[J];当代法学;2009年04期
相关博士学位论文 前1条
1 王雪杉;保险法告知义务研究[D];吉林大学;2007年
相关硕士学位论文 前2条
1 拜村贤征;中、英、日保险告知义务问题研究[D];华东政法学院;2005年
2 隋yN宁;日本伤害保险复保险合同告知义务研究[D];吉林大学;2007年
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