保险合同问题研究

目前,立法机关正在积极准备保险法(主要为保险合同部分)的修改。最高人民法院也于2003年末公布了有关保险合同的司法解释征求意见稿。基于实践的需要,本文就保险合同的几个问题作了研究。笔者认为,保险人对承诺前发生的事故应当承担责任;财产保险合同的转让普遍要求保险人“同意”的做法,不利于交易安全和保险消费者利益的维护;投保人的解除权与关系人的维持权应予以平衡,同为保险合同利益,保单现金价值的归属应与保险金的归属相一致;超额保险无效在定值保险中的意义大于不定值保险,在定值保险中,协议超额定值与赌博无异,应为无效;保险法有关防损义务与施救费用的规定,不仅不利于防损减损,而且对保险消费者有失公平。

Research on Problems of Insurance Contracts

Legislators are preparing for the amendment of the Insurance Act (mainly the part on contracts). In 2003, the Supreme People' s Court announced the judicial interpretations of insurance contracts (a draft for invitation of recommendation). This paper discusses several practical issues about insurance contracts. The author believes that the insurer should be liable for emergencies occurring before acceptance. If the insured must ask the insurer' s leave to convey a policy, it would cause detriment to the security of transactions or to the consumers' interests. Furthermore, the insured should be able to revoke a policy as the insurers are entitled to retain the policy. Since the cash value of a policy and the insurance money are both protected interests of insurance contracts, owners of them should be of the same status. Invalidation of over insurance is more important in valued policy than in open policy, for over insurance in valued policy is equal to gambling. The Insurance Act provides that the insured have the duty to mitigate damage in an emergency and to bear the salvage costs. Such provisions should be amended, for they are not only unfair to insurance customers but also useless in damage avoidance.