我国保险法制建设的历史回顾及其思考
发布时间：2018-09-07 17:18
【摘要】： 保险法制建设包括立法、执法和守法。我国的保险法制建设历史将 近一百年。在这近百年的保险法制建设中，我们能从中学习到什么经验 和教训，这将有助于我国今后的保险法制建设。现在的保险法规还有些 什么缺陷和不足？为了适应日益迅速发展的保险业，还应该制定哪些保 险法规？此外，笔者还对如何搞好保险法制建设工作提出了自己的见 解。 本文以马克思主义唯物辩证法为指导思想，反复运用从分析到综 合、从具体到抽象、归纳总结等研究方法。 本文的内容共分三章。第一章是对我国保险法制建设的历史回顾 及其思考。保险立法开始于清朝末年，新兴的资产阶级面对日益严重的 民族危机，要求反抗外敌，改革现状。在这种情况下，清政府于1902年 下令斟酌旧律，拟定新律。在保险法律方面，清政府拟定了几部有关的 法律，如《钦定大清商律》、《大清商律草案》等。由于辛亥革命的爆发，并 没有正式颁布实施，但清政府的保险法制建设意识是值得肯定的。北洋 政府期间，保险业有了一定的发展。《保险契约法草案》和《保险业法 案》均由于北洋政府的垮台而未获实施。在国内革命战争时期，保险法 规得到逐步完善。国民党政府于1929年颁布了《保险法》，内分总则、损 害保险、人身保险3章共82条。1935年行政院颁布了《保险业法》，内 分总则、保证金、保险公司、相互保险社、会计、法则、附则7章共80条。 这是两部很重要的保险法律，但国民党政府迫于帝国主义的压力没有 颁布施行日期。抗日战争时期，保险法制进一步完善，《保险法》和《保险 业法》经过了修改。尽管如此，保险业没有一部公开实施的保险法，为保 险业的发展提供法律保护，这体现了当局政府的软弱性及妥协性。新中 国成立后，我国制定了一系列保险法规，对保险公司的公有化作出了贡 献，但保险业的发展仅靠制定强制保险法规来发展是不够的，而且会遭 到保户的抵制。新中国成立后至 19 7 9年，我国的保险业历经“四起三 落”，政府对保险业的作用认识不清，保险法制建设停滞不前。从1980 年恢复保险后，保险法制建设工作有了一些进展，但由于保险业独家经 营，法制建设还远远不能适应保险业发展的需要，“无法可依，有法不 依，执法不严”是那时的真实写照。95年《保险法》的颁布实施标志着我 国保险法制建设工作迈上了一个新的台阶。自那以后，一系列配套的保 险法规的出台使我国的保险法律体系初步形成，为保险业的发展打下 了基础。 第二章是对我国在保险法制建设工作中取得的成就及存在的不足 进行探讨。我国近几年来在保险法制建设中取得的成绩是有目共睹的。 以《保险法》为基本框架，在保险业法方面制定了《保险管理暂行规定入 《保险公司管理规定入《保险代理人管理规定（试行乃A保险经纪人管 理规定（试行乃A机动车辆保险条款凡《保险机构高级管理人员任职资 格管理暂行规定入《机动车辆保险单证监制管理规定》等。在保险合同 法方面，新《合同法》适用于保险合同。在保险特别法方面，《海商法》中 专门有海上保险专章，就有关海上保险作出了详细的规定。 自《保险法》颁布实施至今已将近五年了，它的不合理的方面也逐 渐暴露出来。如第16条“…投保人因过失未履行如实告知义务，对保险 事故的发生有严重影响的，保险人对于保险合同解除前发生的保险事 故，不承担赔款或者给付保险金的责任，但可以退还保险费”。此条款不 合理处在于：一是没有规定不可抗辩权的期限。根据新《合同法》的有关 规定，，保险合同满一年后，投保人由于故意或过失未履行如实告知义务 已是既成事实，保险人是不可以单方面解除保险合同的。二是保险人可 以利用“但可以退还保险费”来投机，因为保险人发觉投保人的过失行 为时可以根据具体情况来利用此条款，即保险事故没有发生时就不作 出反应，趁此机会赚取保费；当保险事故发生时就利用此条款来解除合 同，其损失最多是退还保费（也可以不退还保费，因为保险法没有耍求 必须退还保费人又如第30条规定“关于保险合同的条款，保险人与投 保人、被保险人或者受益人有争议时，人民法院或者仲裁机关应当作出 有利于被保险人和受益人的解释”。“争议”的解释通常是“各抒己见，互 2 相辩论＼ 只要双方对条款的解释意见不一，各抒己见，就属于“有争 议＼此条款是否可借鉴我国台湾保险法的有关规定“保险契约之解释， 应探求契约当事人之真意，不得拘泥于所用之文字；如有疑义时，以作 有利于被保险人之解释为原则＼ 另外，第10条八5条石3条J4条、 104条等也有不合理的地方。其它保险法规也是如此，如《保险代理人 管理规定（试行乃第54条，《机动车辆保险条款》等。 第三章是对保
[Abstract]:The construction of insurance legal system includes legislation, law enforcement and law abiding.
In the past one hundred years, what experience can we learn from this nearly 100 years of insurance legal system construction?
And lessons, this will help our country's insurance legal system construction in the future.
What are the deficiencies and deficiencies? In order to adapt to the increasingly rapid development of the insurance industry, what guarantees should be made?
Besides, I also put forward my own opinions on how to do well in the construction of insurance legal system.
Solution.
In this paper, Marx's materialist dialectics is used as the guiding ideology.
Integration, from concrete to abstract, inductive and other research methods.
The content of this article is divided into three chapters. The first chapter is a historical review of China's insurance legal system construction.
Insurance legislation began in the late Qing Dynasty, and the emerging bourgeoisie faced increasingly serious problems.
The national crisis calls for resistance to foreign enemies and reform. In this case, the Qing government in 1902.
In order to formulate the new law, the Qing government formulated several related laws in terms of insurance law.
Laws, such as the Qing Dynasty Qing Dynasty commercial law, the Qing Dynasty commercial law draft, and so on.
Without the formal promulgation and implementation, the Qing government's awareness of the construction of the insurance legal system is worth affirming.
During the period of the government, the insurance industry has made some progress.
All cases were not implemented because of the collapse of the Beiyang government. During the period of the revolutionary war, the insurance law was applied.
The regulations were gradually improved. The Kuomintang government promulgated the "insurance law" in 1929, which was divided into general provisions.
There are 82 chapters in the 3 chapter of life insurance,.1935 promulgated by the Executive Yuan.
There are 80 articles in general principles, margin, insurance companies, mutual insurance companies, accounting rules, and Annex 7 chapters.
These are two very important insurance laws, but the Kuomintang government is under the pressure of imperialism.
During the war of resistance against Japan, the insurance legal system was further improved.
Industry law has been amended. Nevertheless, the insurance industry does not have an open insurance law.
The development of the insurance industry provides legal protection, which reflects the weakness and compromise of the government.
After the founding of the people's Republic of China, China has formulated a series of insurance laws and regulations, which has made tribute to the public ownership of insurance companies.
But the development of the insurance industry is not enough only by enacting compulsory insurance laws and regulations.
After the founding of new China to 1979, China's insurance industry went through "four to three".
The government is not clear about the role of the insurance industry, and the construction of the insurance legal system is stagnant. From 1980
After the restoration of insurance in 2003, some progress has been made in the construction of insurance legal system.
The construction of the legal system is far from being able to meet the needs of the development of the insurance industry.
According to the law, lax enforcement is the true portrayal of that time. The promulgation and implementation of the insurance law in.95 marked me.
The construction of national insurance legal system has taken a new step. Since then, a series of supporting policies have been implemented.
The introduction of the insurance laws and regulations has initially formed the insurance legal system in China, laying the foundation for the development of the insurance industry.
The foundation.
The second chapter is about the achievements and shortcomings of China's insurance legal system construction.
In recent years, our achievements in the construction of insurance legal system are obvious to all.
With the insurance law as the basic framework, the Interim Provisions on insurance management have been formulated in the law of insurance industry.
The provisions of the insurance company's management are incorporated into the provisions of the insurance agents' management (A insurance brokers).
Rationale (trial implementation is A motor vehicle insurance clause.
Interim Provisions on grid management shall be included in the regulations for the supervision and management of motor vehicle insurance documents.
In terms of law, the new contract law is applicable to insurance contracts.
A special chapter on marine insurance is provided with detailed provisions concerning marine insurance.
It has been nearly five years since the promulgation of the insurance law, and its unreasonable aspects are also
Gradually exposed. Such as the sixteenth "..." The insured fails to perform the duty of truthfully informing due to negligence and to the insurance.
If the occurrence of an accident is seriously affected, the insurer shall have an insurance before the termination of the insurance contract.
Therefore, it is not liable for compensation or payment of insurance premium, but it can refund the premium. "
The reason lies in the fact that there is no time limit for the incontestable right.
It is stipulated that after one year's insurance contract, the insured fails to perform the duty of truthfully disclosure because of intentional or negligence.
It is a fact that the insurer can not unilaterally lift the insurance contract. Two is the insurer.
Speculate on the use of "but can refund the premium", because the insurer finds the fault of the insured.
It is possible to make use of this clause according to the specific circumstances, that is, no insurance accident occurs.
Take advantage of this opportunity to earn premiums; when the insurance accident occurs, use this clause to dissolve it.
At the same time, the most losses are the refund of premiums (or the refund of premiums), because the insurance law is not demanding.
The insurer must be refunded, as is the thirtieth provision, "the terms and conditions of the insurance contract, the insurer and the investment."
If the insurer is in dispute with the insured or the beneficiary, the people's court or the arbitration organ shall make a decision.
It is beneficial to the interpretation of the insured and the beneficiary.
Two
Phase debate: as long as the two sides disagree on the interpretation of the clauses, their opinions are contending.
Whether the clause can be used for reference in the relevant provisions of the insurance law of the Taiwan, "the interpretation of the insurance contract,"
We should explore the true meaning of the parties concerned and not be restricted to the words used.
It is conducive to the interpretation of the insured as principle. In addition, tenth, eight, 5 stones, 3 J4,
104, there are also unreasonable things. The same is true of other insurance laws, such as insurance agents.
Management regulations (trial implementation are fifty-fourth, < motor vehicle insurance clause > and so on).
The third chapter is about insurance.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2000
【分类号】：F842
本文编号：2228909
[Abstract]:The construction of insurance legal system includes legislation, law enforcement and law abiding.
In the past one hundred years, what experience can we learn from this nearly 100 years of insurance legal system construction?
And lessons, this will help our country's insurance legal system construction in the future.
What are the deficiencies and deficiencies? In order to adapt to the increasingly rapid development of the insurance industry, what guarantees should be made?
Besides, I also put forward my own opinions on how to do well in the construction of insurance legal system.
Solution.
In this paper, Marx's materialist dialectics is used as the guiding ideology.
Integration, from concrete to abstract, inductive and other research methods.
The content of this article is divided into three chapters. The first chapter is a historical review of China's insurance legal system construction.
Insurance legislation began in the late Qing Dynasty, and the emerging bourgeoisie faced increasingly serious problems.
The national crisis calls for resistance to foreign enemies and reform. In this case, the Qing government in 1902.
In order to formulate the new law, the Qing government formulated several related laws in terms of insurance law.
Laws, such as the Qing Dynasty Qing Dynasty commercial law, the Qing Dynasty commercial law draft, and so on.
Without the formal promulgation and implementation, the Qing government's awareness of the construction of the insurance legal system is worth affirming.
During the period of the government, the insurance industry has made some progress.
All cases were not implemented because of the collapse of the Beiyang government. During the period of the revolutionary war, the insurance law was applied.
The regulations were gradually improved. The Kuomintang government promulgated the "insurance law" in 1929, which was divided into general provisions.
There are 82 chapters in the 3 chapter of life insurance,.1935 promulgated by the Executive Yuan.
There are 80 articles in general principles, margin, insurance companies, mutual insurance companies, accounting rules, and Annex 7 chapters.
These are two very important insurance laws, but the Kuomintang government is under the pressure of imperialism.
During the war of resistance against Japan, the insurance legal system was further improved.
Industry law has been amended. Nevertheless, the insurance industry does not have an open insurance law.
The development of the insurance industry provides legal protection, which reflects the weakness and compromise of the government.
After the founding of the people's Republic of China, China has formulated a series of insurance laws and regulations, which has made tribute to the public ownership of insurance companies.
But the development of the insurance industry is not enough only by enacting compulsory insurance laws and regulations.
After the founding of new China to 1979, China's insurance industry went through "four to three".
The government is not clear about the role of the insurance industry, and the construction of the insurance legal system is stagnant. From 1980
After the restoration of insurance in 2003, some progress has been made in the construction of insurance legal system.
The construction of the legal system is far from being able to meet the needs of the development of the insurance industry.
According to the law, lax enforcement is the true portrayal of that time. The promulgation and implementation of the insurance law in.95 marked me.
The construction of national insurance legal system has taken a new step. Since then, a series of supporting policies have been implemented.
The introduction of the insurance laws and regulations has initially formed the insurance legal system in China, laying the foundation for the development of the insurance industry.
The foundation.
The second chapter is about the achievements and shortcomings of China's insurance legal system construction.
In recent years, our achievements in the construction of insurance legal system are obvious to all.
With the insurance law as the basic framework, the Interim Provisions on insurance management have been formulated in the law of insurance industry.
The provisions of the insurance company's management are incorporated into the provisions of the insurance agents' management (A insurance brokers).
Rationale (trial implementation is A motor vehicle insurance clause.
Interim Provisions on grid management shall be included in the regulations for the supervision and management of motor vehicle insurance documents.
In terms of law, the new contract law is applicable to insurance contracts.
A special chapter on marine insurance is provided with detailed provisions concerning marine insurance.
It has been nearly five years since the promulgation of the insurance law, and its unreasonable aspects are also
Gradually exposed. Such as the sixteenth "..." The insured fails to perform the duty of truthfully informing due to negligence and to the insurance.
If the occurrence of an accident is seriously affected, the insurer shall have an insurance before the termination of the insurance contract.
Therefore, it is not liable for compensation or payment of insurance premium, but it can refund the premium. "
The reason lies in the fact that there is no time limit for the incontestable right.
It is stipulated that after one year's insurance contract, the insured fails to perform the duty of truthfully disclosure because of intentional or negligence.
It is a fact that the insurer can not unilaterally lift the insurance contract. Two is the insurer.
Speculate on the use of "but can refund the premium", because the insurer finds the fault of the insured.
It is possible to make use of this clause according to the specific circumstances, that is, no insurance accident occurs.
Take advantage of this opportunity to earn premiums; when the insurance accident occurs, use this clause to dissolve it.
At the same time, the most losses are the refund of premiums (or the refund of premiums), because the insurance law is not demanding.
The insurer must be refunded, as is the thirtieth provision, "the terms and conditions of the insurance contract, the insurer and the investment."
If the insurer is in dispute with the insured or the beneficiary, the people's court or the arbitration organ shall make a decision.
It is beneficial to the interpretation of the insured and the beneficiary.
Two
Phase debate: as long as the two sides disagree on the interpretation of the clauses, their opinions are contending.
Whether the clause can be used for reference in the relevant provisions of the insurance law of the Taiwan, "the interpretation of the insurance contract,"
We should explore the true meaning of the parties concerned and not be restricted to the words used.
It is conducive to the interpretation of the insured as principle. In addition, tenth, eight, 5 stones, 3 J4,
104, there are also unreasonable things. The same is true of other insurance laws, such as insurance agents.
Management regulations (trial implementation are fifty-fourth, < motor vehicle insurance clause > and so on).
The third chapter is about insurance.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2000
【分类号】：F842
【引证文献】
相关硕士学位论文 前2条
1 奚丹慧;我国汽车保险业务问题研究[D];河北经贸大学;2012年
2 徐一帆;人民币汇率的变动对我国贸易收支的影响[D];东北师范大学;2012年
本文编号：2228909
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