海上保险中告知义务研究
发布时间：2018-11-18 09:39
【摘要】：海上保险合同是最大诚信合同，要求保险合同双方当事人本着最大诚信原则履行自己的义务。告知义务是最大诚信原则下被保险人(投保人)所负的主要义务，也是海上保险合同成立的基础。没有被保险人的告知，保险人将无法获知与判断风险有关的所有重要情况，或者需要花费高昂的成本才能获知此类信息。因此，各国和地区的海上保险立法一般都将告知义务作为一项法定义务加以规定。我国《海商法》第222条和223条也规定了被保险人的告知义务。虽然我国的海上保险立法参考了其他国家的一些经验，但是我国海上保险立法关于告知义务的规定，仍然不够完善。例如，告知义务的主体是否仅限于《海商法》明确规定的被保险人；如何判断某一情况是否具有重要性；将被保险人无过错的未告知视为对告知义务的违反是否合理；保险人在被保险人故意违反告知义务的情况下选择不解除合同，是否有权要求被保险人相应增加保险费……这些疑问都需要理论上的深入分析以求得解决，从而为海上保险立法的完善提供参考，并指导解决实践中可能出现的争议和纠纷。 告知义务有广义和狭义之分。本文基于狭义的告知义务，对被保险人(投保人)的告知义务略作探讨。除引言与结束语以外，正文分为三章： 第一章：告知义务概述。本章首先界定了告知与告知义务的含义；然后分析了告知义务的法律性质；最后考察了关于告知义务理论基础的五种的观点，并提出了自己的看法，认为传统的五种观点并不能构成告知义务的理论基础，告知义务的理论基础是效率与公平原则。 第二章：告知义务的履行。本章立足于《海商法》的现实规定，着眼于《海商法》未来的修改，考察和借鉴其他国家和地区关于海上保险中告知义务的立法、判例和学说，从告知义务的履行主体、告知义务的履行时间、告知义务的履行方式、告知义务的履行范围以及不需告知的情况五个层面对告知义务的履行进行了分析；重点考察和分析了告知义务的履行范围，并提出了相关的立法建议。 第三章：违反告知义务的法律后果。本章首先考察了关于违反告知义务的认定标准的两种立法模式，，并对我国海上保险立法的相关规定进行了评价；然后考察了传统保险法和现代保险法对违反告知义务的法律后果的不同处理，肯定了现代保险法引入因果关系和比例原则的意义，并对我国海上保险立法的相关规定提出了修改建议。
[Abstract]:Marine insurance contract is the greatest good faith contract, which requires both parties to carry out their obligations in the principle of maximum good faith. The obligation of informing is the main obligation of the insured under the principle of maximum good faith, and is also the foundation of the establishment of the marine insurance contract. Without notification from the insured, the insurer will not be able to obtain all the material information related to the risk assessment, or will require a high cost in order to obtain such information. Therefore, the national and regional marine insurance legislation generally regards the obligation of notification as a statutory obligation. Articles 222 and 223 of China's Maritime Law also provide for the insured's obligation to inform. Although the marine insurance legislation of our country refers to some experiences of other countries, the provisions of our marine insurance legislation on the obligation to inform are still not perfect. For example, whether the subject of the obligation of notification is limited to the insured specified in the Maritime Code, how to judge whether a certain situation is of importance or not, whether it is reasonable to regard the non-disclosure of the insured as a breach of the obligation of notification; If the insurer chooses not to terminate the contract when the insured intentionally violates the obligation of informing, it has the right to ask the insured to increase the insurance premium accordingly. These questions need to be analyzed in theory in order to provide reference for the perfection of marine insurance legislation and to guide the settlement of disputes and disputes that may arise in practice. The obligation to inform is divided into broad sense and narrow sense. Based on the narrow sense of the obligation to inform, this paper makes a brief discussion on the obligation of informing the insured. In addition to the introduction and concluding remarks, the text is divided into three chapters: chapter one: an overview of the obligation to inform. This chapter first defines the meaning of notification and the obligation of notification, and then analyzes the legal nature of the obligation of notification. In the end, five views on the theoretical basis of the obligation of disclosure are examined, and their own views are put forward. The traditional five views can not constitute the theoretical basis of the obligation of disclosure, and the theoretical basis of the obligation of disclosure is the principle of efficiency and fairness. Chapter two: the fulfillment of the obligation of informing. This chapter is based on the practical provisions of the Maritime Law, focuses on the future revision of the Maritime Law, examines and draws lessons from the legislation, jurisprudence and doctrine of other countries and regions on the obligation to inform in marine insurance, and from the subject of the performance of the obligation of notification, The paper analyzes the performance of the obligation of notification from five aspects: the time of the performance of the obligation of notification, the way of the performance of the obligation of notification, the scope of the performance of the obligation of notification and the situation of not informing. Focus on the inspection and analysis of the scope of the obligation to inform, and put forward relevant legislative recommendations. Chapter III: the legal consequences of breach of the obligation of notification. In this chapter, we first investigate the two legislative models of the standard of breach of the obligation of notification, and evaluate the relevant provisions of the legislation of marine insurance in China. Then, the author investigates the different treatment of the legal consequences of breach of the obligation of notification between the traditional insurance law and the modern insurance law, and affirms the significance of introducing the principle of causality and proportionality into the modern insurance law. At the same time, some suggestions are put forward to amend the relevant provisions of marine insurance legislation of our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.294;D922.284
本文编号：2339679
[Abstract]:Marine insurance contract is the greatest good faith contract, which requires both parties to carry out their obligations in the principle of maximum good faith. The obligation of informing is the main obligation of the insured under the principle of maximum good faith, and is also the foundation of the establishment of the marine insurance contract. Without notification from the insured, the insurer will not be able to obtain all the material information related to the risk assessment, or will require a high cost in order to obtain such information. Therefore, the national and regional marine insurance legislation generally regards the obligation of notification as a statutory obligation. Articles 222 and 223 of China's Maritime Law also provide for the insured's obligation to inform. Although the marine insurance legislation of our country refers to some experiences of other countries, the provisions of our marine insurance legislation on the obligation to inform are still not perfect. For example, whether the subject of the obligation of notification is limited to the insured specified in the Maritime Code, how to judge whether a certain situation is of importance or not, whether it is reasonable to regard the non-disclosure of the insured as a breach of the obligation of notification; If the insurer chooses not to terminate the contract when the insured intentionally violates the obligation of informing, it has the right to ask the insured to increase the insurance premium accordingly. These questions need to be analyzed in theory in order to provide reference for the perfection of marine insurance legislation and to guide the settlement of disputes and disputes that may arise in practice. The obligation to inform is divided into broad sense and narrow sense. Based on the narrow sense of the obligation to inform, this paper makes a brief discussion on the obligation of informing the insured. In addition to the introduction and concluding remarks, the text is divided into three chapters: chapter one: an overview of the obligation to inform. This chapter first defines the meaning of notification and the obligation of notification, and then analyzes the legal nature of the obligation of notification. In the end, five views on the theoretical basis of the obligation of disclosure are examined, and their own views are put forward. The traditional five views can not constitute the theoretical basis of the obligation of disclosure, and the theoretical basis of the obligation of disclosure is the principle of efficiency and fairness. Chapter two: the fulfillment of the obligation of informing. This chapter is based on the practical provisions of the Maritime Law, focuses on the future revision of the Maritime Law, examines and draws lessons from the legislation, jurisprudence and doctrine of other countries and regions on the obligation to inform in marine insurance, and from the subject of the performance of the obligation of notification, The paper analyzes the performance of the obligation of notification from five aspects: the time of the performance of the obligation of notification, the way of the performance of the obligation of notification, the scope of the performance of the obligation of notification and the situation of not informing. Focus on the inspection and analysis of the scope of the obligation to inform, and put forward relevant legislative recommendations. Chapter III: the legal consequences of breach of the obligation of notification. In this chapter, we first investigate the two legislative models of the standard of breach of the obligation of notification, and evaluate the relevant provisions of the legislation of marine insurance in China. Then, the author investigates the different treatment of the legal consequences of breach of the obligation of notification between the traditional insurance law and the modern insurance law, and affirms the significance of introducing the principle of causality and proportionality into the modern insurance law. At the same time, some suggestions are put forward to amend the relevant provisions of marine insurance legislation of our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D922.294;D922.284
【引证文献】
相关硕士学位论文 前2条
1 李正;海上保险法最大诚信原则变革研究——谈我国相关法律制度完善[D];大连海事大学;2011年
2 陈丽云;从最大诚信原则的变化看海上保险法的价值取向[D];大连海事大学;2009年
本文编号：2339679
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