中国近代保险立法移植研究
发布时间：2018-07-22 14:34
【摘要】： 保险是建立在社会互助基础之上的一种分散危险、消化损失的经济补偿制度。虽然防灾减患，最大可能地减少各种风险带来的损害是人类社会的本能，无论中外，人们都探索出了各种各样的方式方法，这些方式方法中都蕴含着现代保险制度的胚胎。但是，建立在数理基础上的现代保险制度却是随着西方资本主义经济的发展最终在西方形成的。由于商品经济不发达，我国一直没有形成商业保险的客观社会经济和文化环境，原始的保险形态一直无法演变为现代形式的保险制度。在西方，随着社会经济的进步，保险制度在近代获得蓬勃发展，保险立法也日益完善。 十九世纪随着近代外国资本主义国家的经济扩张，现代保险制度被带到了中国，于是保险业开始在中国逐步发展并形成了一定的规模，作为一个新兴的具有很强技术性规范的行业，，我国近代保险业发展的每一步都是向西方学习模仿的过程，当时的行业规范基本上是外资保险业的模本。同时，在外力作用的推进下，中国开始了对传统的法律体系的变革，从而全方位地移植西方法律的工程被启动，保险法自然也包括在内。于是在近代中国社会经济的转型期，一方面从经济基础的角度上，现代意义的保险业在中国这块古老的大地上发展、推进，在中国传统的法律中不可能找到对这种新兴行业的规范，国外保险业的规范已在中国被普遍适用，另一方面从国家法律的宏观架构上又是仿行西法，于是在内外力交互作用下，保险法的移植成为一种历史的必然。 西方发达资本主义国家的保险立法也都走过了一段不断探索的道路。英国作为保险发源最早的国家，虽然其传统上是不成文法国家，但是近代以后，随着其保险业的发展，制订出了不少的成文法，保险法中的许多原则和制度都可从英国法中找到渊源。作为大陆法系的代表，法国和德国保险立法对近代中国都产生了很大的影响。而作为中国近邻的日本，其近代保险制度也是由西方传入，并且随着近代化的开始，日本也开始全面移植西方法律。在保险法方面，主要以德国法为参照系。由于日本的资本主义经济发展道路不同于英、法等国，缺乏必要的资本积累，无法采取同西方资本主义国家一样的发展模式，因此，国家权力对保险业的干预非常明显，在保险立法中便体现为更为注重保险业法。由于近代以来日本在转型过程中的表率作用，中国近代保险法最初的术语、分类、体例都是日本法的翻版。上述国家的保险法规对中国近代保险法立法取向、编篡体例、概念、分类等产生了深远的影响，是近代中国保险立法移植中主要的参考范本。 保险合同法是保险法的核心。西方有关保险契约的规定很大一部分来自于商 中国政法大学博士学位论文 中国近代保险立法移植研究 事惯例，有着极为丰厚的私法文化的理念基础。而且在传统上，保险合同法属于 商法范畴，具有极强的技术性，一些涉及保险契约当事人权利义务的规定大都源 自外资保险公司的保单及其它相关文件。随着资本主义经济的发展，保险契约方 面的立法日趋完善，一些原则和制度随着保险制度的发展和人类认识的不断深化 得以逐步完备。国外的相关立法也经历了一个认识上的螺旋式上升的过程。在我 国近代保险合同法的移植中，保险利益原则、责任保险制度、代位求偿制度和对 不可争条款的规定这些原则和制度都被逐步引入，从法典的角度对这一行业进行 了宏观的规范引导。 南京国民政府时期的《简易人寿保险法》是我国近代以来保险特别法的典型 代表。这一规范是对日本《简易人寿保险法》和《简易人寿令》的移植。近代保 险制度在中日两国的开展有许多相似之处，都因为经济发展水平低且东方传统文 化观念的影响使得人寿保险较财产保险来说发展缓慢。当时日本借鉴英国开展简 易人寿保险的经验教训，在运作模式上作了符合日本国情的改造，推行以后取得 了蜚人的成绩。于是南京国民政府决定仿行，在组织专家进行调查讨论及前往日 本进行实地考察后，以日本的《简易人寿保险法》和《简易人寿保险章程》为蓝 本，结合中国实际情况制定出《简易人寿保险法》及《简易人寿保险章程》，其 内容基本上是对日本法的全面移植。这部法律在简易人寿保险制度的推行过程中 起到了积极的规范作用，从中也反映出中国近代立法移植水平的显著提高。 保险业法作为国家对保险事业进行监督管理的法律，是随着资本主义的发 展，保险业规模的扩大而出现了市场的混乱以及经济领域国家干预主义逐渐取代 自由放任主义而产生的。西方保险业法的产生有着相对成熟的市场经济基础，经 历了近百年的渐进历史。而我国近代社会的转型是属于外发型的，是外部刺激引 发或外部力量直接促成的传导性的社会变迁。我国近代社会经济环境的特殊性决 定了保险业不可能经历西方国家的历史发展过程，完全是由外部植入而催生的， 因此，我国近代保险合同法和保险业法基本上同时由移植产生。虽然在保险业未 有充分发展的情况下及对保险业实行严格的实体监管方式是有一定的负面作用， 但在我国近代市场经济规则严重缺位的境况下，发挥后发性国家的优势，运用国 家权力对保险业进行督导还是必要的，可以避免
[Abstract]:Insurance is a kind of economic compensation system, which is based on social mutual assistance, which is based on social mutual assistance. Although it is the instinct of human society to reduce the damage caused by all kinds of risks, it is the instinct of human society to reduce the risk of disaster and reduce the damage. All kinds of methods and methods are explored, both of which contain modern insurance. However, the modern insurance system based on the mathematical basis is formed in the West with the development of Western capitalist economy. Because of the undeveloped commodity economy, our country has not formed the objective socioeconomic and cultural environment of commercial insurance, and the original insurance form has never evolved into a modern form of insurance. Insurance system. In the west, with the progress of social economy, the insurance system has been flourishing in modern times, and the insurance legislation has been improving.
In nineteenth Century, with the economic expansion of modern foreign capitalist countries, the modern insurance system was brought to China, so the insurance industry began to develop gradually in China and formed a certain scale. As a new and highly technical standard industry, every step of the development of China's modern insurance industry is to imitate the western learning. At the same time, the industrial norm was basically the model of the foreign insurance industry. At the same time, under the impetus of external force, China began to change the traditional legal system, thus the project of the comprehensive transplantation of western law was started, and the insurance law was naturally included. On the basic point of view, the modern meaning of the insurance industry has developed on this ancient land in China and promoted. In the traditional Chinese law, it is impossible to find a standard for this new industry. The norms of the foreign insurance industry have been universally applied in China, on the other hand, the western law is also imitated from the macro framework of the national law, and the internal and external forces are in force. Under the interaction, the transplantation of insurance law has become a historical necessity.
The insurance legislation of the western developed capitalist countries has also gone through a path of continuous exploration. As the earliest country of the origin of insurance, although it is not a literary law country, but in modern times, with the development of its insurance industry, a lot of written laws have been formulated, and many of the principles and systems in the insurance law can be derived from the UK. As the representative of the continental law system, the French and German insurance legislation had a great influence on the modern China. As a close neighbor of China, the modern insurance system was introduced from the west, and with the beginning of modernization, Japan began to transplant western laws in an all-round way. In the insurance law, the German law was mainly used. As the reference department, because of the different road of capitalist economic development in Japan, such as Yu Ying, France and other countries, lack of necessary capital accumulation, can not take the same development model as western capitalist countries. Therefore, the intervention of state power to the insurance industry is very obvious. In the insurance legislation, it is more important to pay more attention to the insurance law. In the process of transformation, the initial terms, classifications and styles of the modern Chinese insurance law are the reversion of the Japanese law. The insurance laws and regulations of the above-mentioned countries have had a profound influence on the legislative orientation of the modern insurance law, the usurper style, the concept and the classification of China's modern insurance law, which is the main reference model in the transplantation of modern China's insurance legislation.
The insurance contract law is the core of the insurance law.
Doctoral dissertations of China University of Political Science and Law
Study on the transplantation of modern insurance legislation in China
Customary practice has a very rich conceptual foundation of private law culture, and traditionally, the insurance contract law belongs to.
The scope of commercial law is highly technical, and most of the provisions concerning the rights and obligations of the parties involved in insurance contracts are mostly sources.
Insurance policies and other related documents from foreign insurance companies. With the development of capitalist economy, the insurance contract parties
Along with the development of the insurance system and the deepening of human understanding, some principles and systems have been deepened.
Gradually, the relevant legislation abroad has gone through a spiral process of understanding.
In the transplantation of modern insurance contract law, the insurance interest principle, the liability insurance system, the subrogation system and the right
These principles and systems have been gradually introduced, and the industry has been carried out from the perspective of the code.
A macro standard guidance.
The simplified life insurance law of the Nanjing national government is a typical example of China's special insurance law since modern times.
This regulation is a transplant to Japan's simplified life insurance law and the simplified life insurance order.
The insurance system has many similarities in the development of China and Japan, both because of the low level of economic development and the traditional oriental culture.
The influence of the concept of life makes life insurance slower than property insurance.
The experience and lessons of Yi life insurance have been reconstructed in the mode of operation in line with the national conditions of Japan.
The Nanjing national government decided to follow suit and organize experts to investigate and discuss the past.
After carrying out the fieldwork, Japan's simple life insurance law and simple life insurance regulations are blue.
In the light of China's actual conditions, the simplified life insurance law and the simplified life insurance regulations have been formulated.
The content is basically a comprehensive transplantation of Japanese law. This law is in the process of implementing the simple life insurance system.
It played a positive role in standardizing, and reflected the remarkable improvement in the level of Transplant Legislation in modern China.
The law of insurance industry, as the law of the state in supervising and managing insurance business, is accompanied by the development of capitalism.
The expansion of the insurance industry has led to market confusion and the gradual substitution of state intervention in the economic field.
The emergence of western insurance law has a relatively mature market economy foundation.
We have experienced a gradual history of nearly 100 years, and the transformation of modern society in China is an externalism and an external stimulus.
The conductive social change directly or externally forces. The particularity of China's modern social and economic environment is determined.
Given that the insurance industry cannot go through the historical development of western countries, it is entirely externally implanted.
Therefore, the modern insurance contract law and insurance law in China are basically transplanted at the same time, though not in the insurance industry.
Full development and strict entity supervision of the insurance industry have a negative effect.
However, under the circumstances of the serious absence of market economy rules in modern China, we should give full play to the advantages of late developing countries and use the country.
It is necessary to supervise the insurance industry by family power.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2003
【分类号】：D922.284
本文编号：2137778
[Abstract]:Insurance is a kind of economic compensation system, which is based on social mutual assistance, which is based on social mutual assistance. Although it is the instinct of human society to reduce the damage caused by all kinds of risks, it is the instinct of human society to reduce the risk of disaster and reduce the damage. All kinds of methods and methods are explored, both of which contain modern insurance. However, the modern insurance system based on the mathematical basis is formed in the West with the development of Western capitalist economy. Because of the undeveloped commodity economy, our country has not formed the objective socioeconomic and cultural environment of commercial insurance, and the original insurance form has never evolved into a modern form of insurance. Insurance system. In the west, with the progress of social economy, the insurance system has been flourishing in modern times, and the insurance legislation has been improving.
In nineteenth Century, with the economic expansion of modern foreign capitalist countries, the modern insurance system was brought to China, so the insurance industry began to develop gradually in China and formed a certain scale. As a new and highly technical standard industry, every step of the development of China's modern insurance industry is to imitate the western learning. At the same time, the industrial norm was basically the model of the foreign insurance industry. At the same time, under the impetus of external force, China began to change the traditional legal system, thus the project of the comprehensive transplantation of western law was started, and the insurance law was naturally included. On the basic point of view, the modern meaning of the insurance industry has developed on this ancient land in China and promoted. In the traditional Chinese law, it is impossible to find a standard for this new industry. The norms of the foreign insurance industry have been universally applied in China, on the other hand, the western law is also imitated from the macro framework of the national law, and the internal and external forces are in force. Under the interaction, the transplantation of insurance law has become a historical necessity.
The insurance legislation of the western developed capitalist countries has also gone through a path of continuous exploration. As the earliest country of the origin of insurance, although it is not a literary law country, but in modern times, with the development of its insurance industry, a lot of written laws have been formulated, and many of the principles and systems in the insurance law can be derived from the UK. As the representative of the continental law system, the French and German insurance legislation had a great influence on the modern China. As a close neighbor of China, the modern insurance system was introduced from the west, and with the beginning of modernization, Japan began to transplant western laws in an all-round way. In the insurance law, the German law was mainly used. As the reference department, because of the different road of capitalist economic development in Japan, such as Yu Ying, France and other countries, lack of necessary capital accumulation, can not take the same development model as western capitalist countries. Therefore, the intervention of state power to the insurance industry is very obvious. In the insurance legislation, it is more important to pay more attention to the insurance law. In the process of transformation, the initial terms, classifications and styles of the modern Chinese insurance law are the reversion of the Japanese law. The insurance laws and regulations of the above-mentioned countries have had a profound influence on the legislative orientation of the modern insurance law, the usurper style, the concept and the classification of China's modern insurance law, which is the main reference model in the transplantation of modern China's insurance legislation.
The insurance contract law is the core of the insurance law.
Doctoral dissertations of China University of Political Science and Law
Study on the transplantation of modern insurance legislation in China
Customary practice has a very rich conceptual foundation of private law culture, and traditionally, the insurance contract law belongs to.
The scope of commercial law is highly technical, and most of the provisions concerning the rights and obligations of the parties involved in insurance contracts are mostly sources.
Insurance policies and other related documents from foreign insurance companies. With the development of capitalist economy, the insurance contract parties
Along with the development of the insurance system and the deepening of human understanding, some principles and systems have been deepened.
Gradually, the relevant legislation abroad has gone through a spiral process of understanding.
In the transplantation of modern insurance contract law, the insurance interest principle, the liability insurance system, the subrogation system and the right
These principles and systems have been gradually introduced, and the industry has been carried out from the perspective of the code.
A macro standard guidance.
The simplified life insurance law of the Nanjing national government is a typical example of China's special insurance law since modern times.
This regulation is a transplant to Japan's simplified life insurance law and the simplified life insurance order.
The insurance system has many similarities in the development of China and Japan, both because of the low level of economic development and the traditional oriental culture.
The influence of the concept of life makes life insurance slower than property insurance.
The experience and lessons of Yi life insurance have been reconstructed in the mode of operation in line with the national conditions of Japan.
The Nanjing national government decided to follow suit and organize experts to investigate and discuss the past.
After carrying out the fieldwork, Japan's simple life insurance law and simple life insurance regulations are blue.
In the light of China's actual conditions, the simplified life insurance law and the simplified life insurance regulations have been formulated.
The content is basically a comprehensive transplantation of Japanese law. This law is in the process of implementing the simple life insurance system.
It played a positive role in standardizing, and reflected the remarkable improvement in the level of Transplant Legislation in modern China.
The law of insurance industry, as the law of the state in supervising and managing insurance business, is accompanied by the development of capitalism.
The expansion of the insurance industry has led to market confusion and the gradual substitution of state intervention in the economic field.
The emergence of western insurance law has a relatively mature market economy foundation.
We have experienced a gradual history of nearly 100 years, and the transformation of modern society in China is an externalism and an external stimulus.
The conductive social change directly or externally forces. The particularity of China's modern social and economic environment is determined.
Given that the insurance industry cannot go through the historical development of western countries, it is entirely externally implanted.
Therefore, the modern insurance contract law and insurance law in China are basically transplanted at the same time, though not in the insurance industry.
Full development and strict entity supervision of the insurance industry have a negative effect.
However, under the circumstances of the serious absence of market economy rules in modern China, we should give full play to the advantages of late developing countries and use the country.
It is necessary to supervise the insurance industry by family power.
【学位授予单位】：中国政法大学
【学位级别】：博士
【学位授予年份】：2003
【分类号】：D922.284
【引证文献】
相关博士学位论文 前2条
1 徐少辉;上海金融中心法制变迁及决策研究[D];华东政法大学;2010年
2 季立刚;民国商事立法研究（1912-1937）[D];华东政法学院;2005年
相关硕士学位论文 前2条
1 袁媛;抗战时期重庆保险业述论[D];西南政法大学;2011年
2 殷唯青;南京国民政府时期（1927-1937）保险法立法浅析[D];华东政法大学;2009年
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