海上预约保险合同之研究

发布时间：2018-11-17 13:46

【摘要】：预约保险合同能够简化保险双方当事人的业务流程,使被保险人免于承担因疏忽而导致的遗漏投保风险,令保险人获得稳定的保费收入。因而在保险业界得到了广泛的应用。目前,我国法律对预约保险合同的规定并不完善,仅有《海商法》第231条至233条对其进行了粗略的规定,却并未涉及预约保险合同的核心内容。本文共分为四部分,从预约保险合同的概念、溯及力以及被保险人的申报义务着手,主张预约保险合同和其下航次保险合同为两个独立的合同,二者间为总量合同和分合同的关系,在此基础上对预约保险合同进行全面阐析。文章第一部分首先通过对国内外保险市场上预约保险合同相关做法的比较分析,借鉴英国在预约保险合同方面的立法规定,对预约保险合同的概念做出界定,认为预约保险合同是被保险人承诺将符合约定的付运货物全部向保险人投保,而保险人则对这些货物自付运时则承担保险责任的简化合同。该预约保险合同下,被保险人负有严格的申报义务,而保险人则相应的承认预约保险合同的溯及效力,在被保险人善意的情形下,对漏报、误报的货物依然予以承保。其次,本章分析了预约保险合同成立与生效的条件,认为口头形式的预约保险合同依然有效,但鉴于预约保险合同的特性,应以法律形式强制要求预约保险合同以书面形式订立。最后对预约保险合同的内容、最高赔付额等一般性问题进行了论述,将其定性为总量合同。第二部分主要探讨了预约保险合同的保险责任期间以及预约保险的溯及效力。对预约保险合同的保险责任期间进行了深入分析,辨析了“预约保险合同的溯及效力”观点,主张此种提法值得商榷,预约保险的溯及效力实则为航次保险合同的溯及效力,并对其适用条件做出进一步剖析。第三部分着重分析了预约保险合同被保险人的申报义务,主张申报义务包含“及时申报”“充分申报”“如实申报”三方面要求,申报义务的不同方面具有不同性质,违反申报义务的不同方面会导致不同的法律后果。第四部分在前三部分论述的基础上对完善我国的预约保险合同的相关立法规定提出了几点可行性建议。
[Abstract]:Appointment insurance contract can simplify the business process of both parties of insurance, protect the insured from the risk of omission insurance caused by negligence, and make the insurer obtain stable premium income. As a result, it has been widely used in the insurance industry. At present, the stipulation of advance insurance contract in our country is not perfect, only articles 231 to 233 of Maritime Law have roughly stipulated it, but not the core content of the contract. This paper is divided into four parts, starting with the concept, retroactive effect and the declaration obligation of the insurance contract, the author claims that the contract of appointment insurance and the insurance contract of the next voyage are two independent contracts. The relationship between them is the total contract and the sub-contract, on the basis of which, the author makes a comprehensive analysis of the reservation insurance contract. The first part of the article first through the domestic and foreign insurance market reservation insurance contract related practice comparative analysis, draws lessons from the British in the reservation insurance contract aspect legislation stipulation, makes the definition to the reservation insurance contract concept. It is considered that an advance insurance contract is a simplified contract in which the insured undertakes to insure all conformable consignment goods with the insurer, and the insurer assumes insurance liability for these goods when they are self-shipped. Under the reservation insurance contract, the insured has the strict obligation to declare, and the insurer recognizes the retroactivity and validity of the reservation insurance contract accordingly. In the case of good faith of the insured, understatement and misstatement of goods are still underwritten. Secondly, this chapter analyzes the conditions for the formation and effectiveness of the reservation insurance contract, and considers that the oral form of the reservation insurance contract is still valid, but in view of the characteristics of the reservation insurance contract, An appointment insurance contract shall be legally required to be concluded in writing. At last, the paper discusses the general problems of the contract, such as the maximum indemnity and so on, and defines it as the contract of total amount. The second part mainly discusses the period of insurance liability and the retroactivity and effectiveness of advance insurance contract. This paper makes a deep analysis of the period of insurance liability in advance insurance contract, differentiates and analyzes the viewpoint of "retroactivity and validity of advance insurance contract", and argues that this formulation is open to question, and that the retroactivity and effect of advance insurance are actually retroactive and effective of voyage insurance contract. And make further analysis to its application condition. The third part focuses on the analysis of the insurant's obligation to declare in advance insurance contract, and claims that the declaration obligation includes the three requirements of "timely declaration" and "full declaration" and "truthful declaration", and that the different aspects of the declaration obligation have different nature. Different aspects of the obligation to declare may lead to different legal consequences. The fourth part, on the basis of the first three parts, puts forward some feasible suggestions to perfect the relevant legislative provisions of the reservation insurance contract in our country.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.284

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