建立我国海上保险保证制度的相关问题研究
发布时间：2018-11-17 07:06
【摘要】： “保证”是海上保险中一项特有的制度,其是基于海上保险法“最大诚信原则”而要求被保险人履行的义务。保证制度是通过判例一步步发展和完善起来的,英国《1906年海上保险法》总结了之前的判例,进而对其做出了全面而系统的规定。 保证制度设立的最初目的在于控制风险。在信息技术不发达的过去,当时的保险人在决定承保范围时在很大程度上取决于被保险人的告知和承诺,这种情况造成了双方当事人的信息极度不对称,而海上保险市场上的这种信息不对称极易诱发道德危险。保险人为了控制风险,不得不寻求一种保护机制,而保证制度恰好满足了保险人的这种需求。保险人将保证制度规定的尽可能严厉来维护自身利益。但是经过长期的发展和演变,其内涵不断丰富的同时,在实践中出现大量的复杂多样的问题,它的苛刻后果、负面作用不断的体现出来,因此受到诸多质疑。 我国《海商法》仅在第235条规定了保证,这个条款规定的不甚全面,容易在理论和实务上引起理解上的偏差。在我国建立保证制度,既能平衡保险人和被保险人之间的权利义务分配,又能促进航运业的发展。因此,对这一问题的研究,既具有理论上的指导性,又可以增加实践中的可操作性。 本文采用述评结合及穿插案例的方法,从介绍英国海上保险保证制度入手,介绍它的涵义、曾经在海上保险市场中所起到的重要作用,以及它存在价值的评判,进而总结保证制度目前在我国立法和实践中的体现,并对其在理论和实务中的现状进行评价,以及分析保证和告知这两项义务的联系和差别。我国的保险业正处于发展阶段,目前存在一些问题,还是很需要这个严格的制度来规范被保险人和维护保险市场的稳定发展,因此有必要在我国建立该制度,在本文中作者就几个突出的问题做了论述。
[Abstract]:"Suretyship" is a special system in marine insurance, which is based on the "principle of maximum good faith" of the Marine Insurance Law and requires the insurant to perform its obligations. The guarantee system is developed and perfected step by step through the case law. The British Marine Insurance Law of 1906 sums up the previous cases and makes a comprehensive and systematic regulation on them. The initial purpose of the guarantee system is to control risk. In the underdeveloped past of information technology, the insurer at that time depended to a large extent on the information and commitment of the insured when deciding on the scope of insurance coverage, which resulted in extreme asymmetry of information between the parties. This information asymmetry in the marine insurance market can easily lead to moral hazard. In order to control the risk, the insurer has to seek a kind of protection mechanism, and the guarantee system meets the demand of the insurer. The insurer will ensure that the system is as strict as possible to safeguard its own interests. But after a long period of development and evolution, its connotation is constantly rich, at the same time, in practice there are a large number of complex and diverse problems, its harsh consequences, negative effects are constantly reflected, so many questions. The Maritime Law of our country only stipulates the guarantee in Article 235, which is not very comprehensive and easily leads to the deviation in theory and practice. The establishment of guarantee system in China can balance the distribution of rights and obligations between the insurer and the insured, and promote the development of shipping industry. Therefore, the study of this problem has both theoretical guidance and practical maneuverability. This paper introduces the meaning of British marine insurance guarantee system, the important role it has played in the marine insurance market, and the evaluation of its existence value. Then it summarizes the embodiment of the guarantee system in the legislation and practice of our country at present, evaluates its present situation in theory and practice, and analyzes the connection and difference between the two obligations. The insurance industry of our country is at the stage of development. At present, there are some problems. We still need this strict system to regulate the insured and maintain the stable development of the insurance market. Therefore, it is necessary to establish this system in our country. In this paper, the author discusses several outstanding problems.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.284;D922.294
本文编号：2336897
[Abstract]:"Suretyship" is a special system in marine insurance, which is based on the "principle of maximum good faith" of the Marine Insurance Law and requires the insurant to perform its obligations. The guarantee system is developed and perfected step by step through the case law. The British Marine Insurance Law of 1906 sums up the previous cases and makes a comprehensive and systematic regulation on them. The initial purpose of the guarantee system is to control risk. In the underdeveloped past of information technology, the insurer at that time depended to a large extent on the information and commitment of the insured when deciding on the scope of insurance coverage, which resulted in extreme asymmetry of information between the parties. This information asymmetry in the marine insurance market can easily lead to moral hazard. In order to control the risk, the insurer has to seek a kind of protection mechanism, and the guarantee system meets the demand of the insurer. The insurer will ensure that the system is as strict as possible to safeguard its own interests. But after a long period of development and evolution, its connotation is constantly rich, at the same time, in practice there are a large number of complex and diverse problems, its harsh consequences, negative effects are constantly reflected, so many questions. The Maritime Law of our country only stipulates the guarantee in Article 235, which is not very comprehensive and easily leads to the deviation in theory and practice. The establishment of guarantee system in China can balance the distribution of rights and obligations between the insurer and the insured, and promote the development of shipping industry. Therefore, the study of this problem has both theoretical guidance and practical maneuverability. This paper introduces the meaning of British marine insurance guarantee system, the important role it has played in the marine insurance market, and the evaluation of its existence value. Then it summarizes the embodiment of the guarantee system in the legislation and practice of our country at present, evaluates its present situation in theory and practice, and analyzes the connection and difference between the two obligations. The insurance industry of our country is at the stage of development. At present, there are some problems. We still need this strict system to regulate the insured and maintain the stable development of the insurance market. Therefore, it is necessary to establish this system in our country. In this paper, the author discusses several outstanding problems.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.284;D922.294
【引证文献】
相关期刊论文 前1条
1 徐婷燕;;论海上保险法中保证制度[J];商品与质量;2012年S5期
相关硕士学位论文 前2条
1 彭俊芳;海上保险中的船舶适航问题研究[D];大连海事大学;2011年
2 樊丽;中国保险保证制度及条款的缺失与完善[D];西南财经大学;2011年
，本文编号：2336897
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