保险法中保证制度构造及其现代化转型——以英国为视角

保证制度本是英国立法者为帮助保险人评估与控制风险水平而创设的,但保险人却通过任意扩大保证事项的范围,特别是引入合同基础条款,将保证演绎为帮助其逃脱保险责任的工具.故而英国正在修订法律,尝试通过否定合同基础条款的效力,废除肯定保证制度,限制特约保证适用的方式来消除保证的负面效应.借鉴前述立法经验,我国应将实践中当事人约定的肯定保证条款与投保人的告知不加区分,违反肯定保证一概适用违反如实告知义务的规定.同时,有鉴于特约保证具有难以替代的独特价值,因而我国<保险法>有必要赋予保险人通过规定特约(保证)条款的方式控制风险水平的权利,或至少应承认实践中此类条款的合法性.但为限制保险人通过滥用特约条款,逃避应尽保险责任情形的出现,应仅在被保险人违反特约条款的行为与保险事故发生存在因果关系,且被保险人具有主观可归责性时,方可允许保险人藉此免除其保险责任.

Structure of Warranty System in British Insurance Law and Its Modem Transition

The aim of creating warranty system by British legislators was to help insurer evaluate and control level of risks,insurer,however,has made use of warranty as a tool to escaping insurance liability by arbitrarily expanding the scope of warranty issues,especially by introducing the clauses of contract basis.As a result,UK now is revising its law and trying to eliminate the negative effect produced by warranty through methods of denying the validity of the clause of contract basis,abolishing affirmative warranty system and restricting the way of application of promissory warranty.Using British legislative experience for reference,China should not distinguish between affirmative warranty clause parties agreed upon in practice and notification provided by the insured.In case of violation of affirmative warranty,the provision of breach of duty to telling truth shall be applied in general.Meanwhile,in view of the unique and irreplaceable value of promissory warranty,insurance law in China needs to entitle insurer the right to control level of risks by providing promissory(warranty)clause,or at least acknowledge the legality of this clause in practice.In order to restrain insurer from escaping insurance liability by abusing promissory clause,only in the context where there exists a cause-and-effect relation between the violation of promissory warranty clause by the insured and the occurrence of insurance accident,and the insured is accountable subjectively,can the insurer be allowed to exempt from his/her insurance liability.