论美国保险法的合理期待原则
发布时间：2018-12-12 13:10
【摘要】： 合理期待原则是美国保险法中一种新兴的保险合同解释原则,该原则是指当保险合同当事人就合同内容的解释发生争议之时,法院可以忽略合同的明示条款规定,而以被保险人对于合同缔约目的的合理期待为出发点对保险合同进行解释。 本文采用历史分析和比较分析的研究方法,参阅大量的英文资料,从分析保险合同的附合性入手,首先分析了该原则产生的理论基础及与传统合同解释原则的关系。保险合同作为一种典型的附合合同,对保险人和被保险人双方都有利。然而也存在弊端。因为附合合同通常由较强的一方起草后,提供给选择余地很少并且谈判力量较弱的一方。在合同签订过程中,双方并不享有平等的谈判磋商能力,对保险合同中的某些特殊条款和排他条款,保险人基于各种原因,可能并不知情,因此会给被保险人带来特殊的风险。在保险交易实践中,被保险人通常是没有专业知识的普通消费者,大部分保险合同所采用的营销方式使得消费者在购买保险合同之前根本没有机会阅读保险条款。而且,保险条款的用语大多是冗长的,难懂的,被保险人不愿意去阅读,甚至即使是阅读了,可能也无法完全理解。如果被保险人不知道或应该不知道其所期待的保险风险不属于保险人的承保范围,而且这种对保险范围的期待符合一个理性的外行人的合理的期待,那么合理期待原则应当适用。而且,为了追求公正,法院也宁愿从被保险人的合理期待出发来解释保单条款,保护被保险人在保险合同中免受不公平和意外条款。传统的合同法理论,如疑义利益解释、显示公平、禁止反言等原则,已经不能有效的保护消费者免受这些危险。尽管法院经常运用传统手段解释某些合同条款中显然没有的含义并且不允许非消费者一方过于苛刻,但是他们还是没有办法解决根本问题。附合合同的真正问题是较弱的一方并不同意所有的合同条款。合理期待原则作为一种“事后救济机制”,是对保险人缔约说明义务不足或缺失时的一种补充救济措施。它并不否认合同自由,而是以承认保险合同附合性为前提,突破保险合同表面上的形式正义,忽略合同条款中的明示条款,而依被保险人的内心的合理期待来强制执行,从而达到在保险领域内实现实质正义。 本文也对合理期待原则在美国的发展脉络进行了梳理,选取其中比较有代表性的两个州,爱荷华州和亚利桑那州,通过大量的案例对其适用和限制条件进行了重点论述。近40年在美国,合理期待原则得到了很大的发展,法院在很多经典案例中援引合理期待原则对被保险人予以保护。但是,合理期待原则的适用也是有一定限制条件的,通常有以下五种情况:(1)保险人已尽到充分告知义务;(2)被保险人的缔约能力与保险人相当;(3)被保险人具备相当的保险专业知识并知悉保单限制条款内容;(4)保险人与被保险人就“个别商议条款”协商一致:(5)属引用制定法或行政法规制定条款时,合理期待原则不能被适用。 尽管合理期待原则自提出至今,学界就争论不止,反对者和赞成者各持己见,但无论如何,该原则的提出,都为法院提供一种解决保险合同中未知的排除条款问题的有效途径和保护被保险人及受益人利益的有力工具,使保险消费者权益保护之法律机制更趋完善与缜密。而且,也促使保险业界掀起一场“悄悄的自我革命”,通过改良保险品种、重新设计保单内容、尽量以清晰的语言拟定条款等方式,自觉地顾及和维护保险消费者权益。通过本文的研究,旨在对美国保险法的合理期待原则有更加全面深入的了解,对保险立法研究者有所裨益和参考。
[Abstract]:The principle of reasonable expectation is an emerging policy interpretation principle in the American Insurance Law, which means that the court can ignore the express clauses of the contract when the parties of the insurance contract dispute the interpretation of the contract contents. In the light of the reasonable expectation of the insured for the purpose of the contract, the insurance contract will be explained. In this paper, the research methods of historical analysis and comparative analysis are used in this paper. In this paper, a lot of English materials are consulted, and the theoretical basis of the principle and the principle of the interpretation of the traditional contract are first analyzed from the analysis of the conformability of the insurance contract. The relationship between the insurer and the insured as a typical co-operation contract. It's all right. But it's still. In practice, because the contract is usually drafted by a stronger party, there is little room for choice and the negotiation power is weak On the other hand, in the course of the signing of the contract, the parties do not have equal negotiation and negotiation capacity, and the insurer may not be aware of certain special provisions and exclusive clauses in the insurance contract, and the insurer may not be aware of the various reasons, so that the insured can bring special benefits to the insured. In the practice of insurance trade, the insured is usually a general consumer with no professional knowledge. Most of the marketing methods used by the insurance contract make the consumer not have the opportunity to read the insurance policy at all before the insurance contract is purchased. The term of the insurance clause is mostly long, hard to understand, the insured is not willing to read, even if it is read, it may not be finished. It is to be understood that if the insured does not know or should not be aware of the extent to which the insurance risks are not to be covered by the insurer and that such a range of insurance is expected to meet a reasonable expectation of a reasonable layman, the principle of reasonable expectation shall When applicable, and in order to pursue justice, the court would prefer to explain the terms of the policy from the reasonable expectation of the insured, to protect the insured from unfair and meaning in the insurance contract The traditional contract law theory, such as the principle of the explanation of the interests of the doubt, the display of fairness, the prohibition of anti-speech, etc., can not effectively protect the consumers from this Some dangers. Despite the fact that the courts often use traditional means to interpret the meaning of certain contractual terms and do not allow the non-consumer to be too harsh, they still have no means to resolve the root The problem is that the real problem of the attached contract is that the weaker party does not agree to all the The principle of reasonable expectation, as a kind of 鈥減ost-post relief mechanism鈥，
本文编号：2374621
[Abstract]:The principle of reasonable expectation is an emerging policy interpretation principle in the American Insurance Law, which means that the court can ignore the express clauses of the contract when the parties of the insurance contract dispute the interpretation of the contract contents. In the light of the reasonable expectation of the insured for the purpose of the contract, the insurance contract will be explained. In this paper, the research methods of historical analysis and comparative analysis are used in this paper. In this paper, a lot of English materials are consulted, and the theoretical basis of the principle and the principle of the interpretation of the traditional contract are first analyzed from the analysis of the conformability of the insurance contract. The relationship between the insurer and the insured as a typical co-operation contract. It's all right. But it's still. In practice, because the contract is usually drafted by a stronger party, there is little room for choice and the negotiation power is weak On the other hand, in the course of the signing of the contract, the parties do not have equal negotiation and negotiation capacity, and the insurer may not be aware of certain special provisions and exclusive clauses in the insurance contract, and the insurer may not be aware of the various reasons, so that the insured can bring special benefits to the insured. In the practice of insurance trade, the insured is usually a general consumer with no professional knowledge. Most of the marketing methods used by the insurance contract make the consumer not have the opportunity to read the insurance policy at all before the insurance contract is purchased. The term of the insurance clause is mostly long, hard to understand, the insured is not willing to read, even if it is read, it may not be finished. It is to be understood that if the insured does not know or should not be aware of the extent to which the insurance risks are not to be covered by the insurer and that such a range of insurance is expected to meet a reasonable expectation of a reasonable layman, the principle of reasonable expectation shall When applicable, and in order to pursue justice, the court would prefer to explain the terms of the policy from the reasonable expectation of the insured, to protect the insured from unfair and meaning in the insurance contract The traditional contract law theory, such as the principle of the explanation of the interests of the doubt, the display of fairness, the prohibition of anti-speech, etc., can not effectively protect the consumers from this Some dangers. Despite the fact that the courts often use traditional means to interpret the meaning of certain contractual terms and do not allow the non-consumer to be too harsh, they still have no means to resolve the root The problem is that the real problem of the attached contract is that the weaker party does not agree to all the The principle of reasonable expectation, as a kind of 鈥減ost-post relief mechanism鈥，
本文编号：2374621
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