1. Definition of contract
Contract is a legal term that we often encounter in our daily life. It refers to the agreement reached between the parties to establish, change and terminate certain civil rights and obligations. Contracts are everywhere and are closely related to our work and life. For example, if you go to the park to play, you have a travel contract with the park; To apply for a job in a company, you have to sign a labor contract with the company, and so on.
2. Definition of insurance contract
As a kind of contract, insurance contract is naturally an agreement on the relationship between civil rights and obligations. So, what is an insurance contract? Article 10 of China's Insurance Law defines it as: "An insurance contract is an agreement between the applicant and the insurer to stipulate the insurance rights and obligations." According to this definition, insurance contract includes three meanings: first, the nature of the contract belongs to civil and commercial contracts; Second, the parties, including the insured and the insurer; The third is the content of the contract, that is, the relationship between insurance rights and obligations.
General characteristics of insurance contracts
Insurance contract is a form of contract, and the relevant provisions of the contract should be followed first. If you don't have this feature, you can't call it a contract. So, what are the legal characteristics of the contract?
(1) Contract act is a civil legal act. As a civil legal act, a contract is legally binding only if the consciousness expressed by the parties to the contract is legal and meets the legal requirements, and it should be protected by national laws. If the parties insure the cargo transportation insurance with prohibited articles, even if the insurer issues an insurance policy, it will not have the contract effect.
(2) The purpose of a contract is to establish, change or terminate the relationship of civil rights and obligations. The parties to a contract have certain aims and purposes, that is, to establish, change and terminate specific civil rights and obligations. The so-called establishment of civil rights and obligations means that the parties conclude a contract to form a certain legal relationship. For example, the insured forms an insurance right and obligation relationship with the insurer by purchasing insurance. In the event of an agreed insurance accident, the insured has the right to claim compensation from the insurance company or pay insurance money. The so-called change of civil rights and obligations means that the parties change the original contractual relationship in content by concluding a contract. It usually changes the contents of the contract on the premise of maintaining the validity of the original contract For example, due to the expansion of business scale and the increase of assets, the insured can no longer fully guarantee the original insurance amount and negotiate with the insurer to increase the insurance amount. The so-called termination of civil rights and obligations means that the parties conclude a contract to eliminate the original civil rights and obligations. For example, when the insured is unable to pay the premium of renewed life insurance due to economic reasons, he requires to cancel the insurance contract and return the cash value of the policy.
(3) A contract is the result of an agreement between two or more parties. The consistency of the expression of will shows that the contract is the product of the parties' agreement. Without consensus, there is no contract. For example, the insurer is willing to bear a certain risk of the insured because it can charge the corresponding insurance premium, and both parties have reached an agreement on the size of the risk and the amount of the insurance premium.
(4) A contract is a voluntary act of the parties. When concluding a contract, both parties have completely equal legal status, and neither party can impose its will on the other, otherwise the contract will be invalid. Article 4 of China's Insurance Law stipulates: "Insurance activities must abide by laws and administrative regulations, respect social morality and follow the principle of voluntariness."
2. Characteristics of insurance contracts
The promulgation and implementation of China Insurance Law has made the development of insurance industry in China enter a legal stage. However, in insurance dispute litigation, many litigation cases of the same type and nature have very different litigation results just because of the differences in jurisdiction areas. This situation has further led to the increase of insurance contract disputes, caused confusion between insurers and insurance consumers, and seriously affected the judicial unity. There are both legislative reasons and judicial problems. To sum up, the important reason is that the legal characteristics of insurance contracts are ignored, such as duality, commitment, attachment and luck of insurance contracts. The following is a case study of life insurance.
On October 5th, 2006,5438+0,65438+00/kloc-0, Xie applied to a life insurance company (hereinafter referred to as the insurance company) for life insurance of 6,543,800 yuan plus long-term accident insurance of 2 million yuan, and filled out the application form. 10 On June 6th, Insurance Company A submitted a business proposal stamped by its general manager Li to Xie Mou, and Xie Mou paid the first premium of 1 1 944 yuan according to the provisions of the proposal. When the underwriting staff of an insurance company checked Xie's insurance information, they found that Xie had insured an insurance amount of up to 3 million, but did not provide the corresponding financial status certificate. In order to prevent moral hazard, insurance companies generally require policyholders and insured with high insurance policies to provide proof of financial status. So, on June 10, 10, insurance company A sent a note to Xie, asking Xie to provide supplementary proof of financial status within 10 days, and to have a physical examination according to the requirements of underwriting procedures. 10 June 17, thanks for the physical examination. 10 18 In the early morning, Xie was assassinated by his ex-boyfriend at his girlfriend's home. 1June 18 At 8: 00 am, insurance company A received the medical examination results from the hospital. Because Xie has physical problems, he needs to increase the premium. An insurance company informed, but Xie's family said they could not contact. 2001113 Xie Mu informed an insurance company of the insurance accident and filed a claim.
Looking at the whole process of this case, there are actually two key issues involved: First, what is the sign of the establishment of an insurance contract? Second, what is the relationship between the payment of premium and the issuance of insurance policy and the entry into force of insurance contract?
(1) Insurance contract signing.
1) The insurance contract is not necessary. According to whether a contract needs a specific form, it can be divided into necessary contracts and unnecessary contracts. A necessary contract refers to a contract that can only be established if the law stipulates that it must take a certain form or complete a certain procedure. For example, a patent transfer contract can only be established in writing. A non-mandatory contract refers to a contract that is not required by law to have a certain form or perform a certain procedure. For example, a general sales contract can be concluded orally or in writing, and either way can lead to the establishment of the contract. Both parties are willing to use written form, which is not prohibited by law. The legal significance of distinguishing between essential contracts and non-essential contracts lies in that essential contracts do not take specific forms and perform specific procedures, so they are not established and do not have legal effect in principle.
So is the insurance contract a mandatory contract or a non-mandatory contract? Article 13 of China's Insurance Law stipulates: "When the applicant makes an insurance request, the insurer agrees to underwrite and reaches an agreement on the terms of the contract, the insurance contract is established. The insurer shall issue an insurance policy or other insurance certificate to the applicant in a timely manner, and specify the contents of the contract agreed by both parties in the insurance policy or other insurance certificate. With the consent of the insured and the insurer through consultation, an insurance contract may also be concluded in the form of other written agreements other than those specified in the preceding paragraph. " Legally speaking, an insurance contract is established before the insurance policy or other insurance documents are issued. Issuing insurance policies or other insurance certificates is not a specific form of insurance contract stipulated by law, but an obligation of the insurer stipulated by law.
In addition, the legislative process of China's insurance law clearly reflects the trajectory of the development of insurance contracts from compulsory to non-compulsory. In the Draft Insurance Law (hereinafter referred to as the Draft) submitted to the NPC Standing Committee at its 13rd meeting on February 7, 1995, Article13 clearly stipulates: "An insurance contract shall be concluded in the form of an insurance policy or a written agreement." However,1the Insurance Law passed on June 30th, 995 deleted this clause, and only stipulated that "after the insurance contract is established, the insurer shall issue the insurance policy or other insurance certificates to the applicant in time". Moreover, the second paragraph of Article 12 of the Insurance Law has made a supplementary provision on the basis of the draft: "With the consent of the insured and the insurer through consultation, an insurance contract may also be concluded in other written forms than those specified in the preceding paragraph." This shows more clearly that insurance documents are not the legal form of insurance contracts.
Therefore, we believe that it is harmful to insurance practice to claim that an insurance contract is a necessary contract, and its establishment begins with the issuance of insurance policies or other insurance certificates:
First, it is not conducive to protecting the legitimate rights and interests of the insured and affecting the stability of production and life. In practice, sometimes the insured and the insurer agree on insurance matters, and the insured has paid the insurance premium, but the insurer has not issued the insurance policy or other insurance certificates. There may be many reasons for this, but there are indeed a few insurance companies holding a wait-and-see attitude. Once an insurance accident causes losses to the insured, they refuse to bear the insurance liability on the grounds that they have not issued an insurance policy or other insurance certificates and the insurance contract has not been established, so that the economic losses of the insured cannot be compensated in time, thus affecting the stability of production and life.
Second, it damages the reputation of the insurer and is not conducive to the smooth development of the insurance industry. The insured is generally unfamiliar with insurance. They always think that once an agreement is reached with the insurer and the insurance premium is paid, the insurance contract will be established and the insurer will compensate the losses caused by the insurance accident during the insurance period. If the establishment of an insurance contract begins with the issuance of an insurance policy or other insurance certificates, that is, before the issuance, the insurer will not be liable for compensation, which will easily dampen people's enthusiasm for participating in insurance, damage the reputation of the insurer and be detrimental to the healthy development of the insurance industry.
Although the insurance contract is unnecessary according to the relevant provisions of China's Insurance Law, in order to avoid and reduce disputes, clarify the rights and obligations of the parties, and solve disputes accurately, timely and reasonably, we believe that in practice, insurance contracts should be concluded in written form as much as possible. For oral insurance contracts, once both parties reach an agreement, the insurer shall immediately issue an insurance policy or other insurance certificates to prove it.
2) The insurance contract is an agreed contract. According to whether it is necessary to deliver the subject matter or complete other payments, a contract can be divided into an agreed contract and a practical contract: an agreed contract refers to a contract established by both parties. For example, as long as the shipper and the carrier reach an agreement on the time and route of goods transportation, a railway transportation contract is established, regardless of whether the goods have been delivered to the carrier. An actual contract refers to a contract that can only be established after the delivery of the subject matter or other payments are completed, unless otherwise agreed by the parties. For example, a gift contract is only established if the donor actually transfers the relevant property to the donee, unless the donor and the donee have the same meaning. The legal significance of distinguishing the agreed contract from the actual contract lies in their different time of establishment: the agreed contract was established when the parties reached an agreement on the main terms of the contract; The parties to the actual contract only agree on the main terms of the contract, and the contract cannot be established. Only when the parties reach an agreement and one party delivers the subject matter can the contract be established.
In China, quite a few people think that insurance contracts are practical contracts. As long as the insured fails to pay the insurance premium, even if both parties reach an agreement on the terms of the contract, the insurance contract will not be established. Of course, in the event of an insured accident, the insurer also has the right to refuse compensation. We think this view lacks legal basis. Because from the analysis of the existing legal provisions in China, the insurance contract should be a promise contract:
First, article 13 of China's Insurance Law stipulates: "If the applicant requests insurance, the insurer agrees to underwrite it, and an agreement is reached on the terms of the contract, the insurance contract is established ..." From this law, whether the insurance contract is established depends on whether both parties reach an agreement on the terms of the contract. Obviously, an insurance contract is a promise contract.
Second, Article 14 of the Insurance Law stipulates: "After the insurance contract is established, the insured shall pay the insurance premium as agreed; The insurer began to bear the insurance liability according to the agreed time. " Here, the insured pays the insurance premium according to the contract, which was impossible before the contract was established, let alone the insurance premium. Therefore, the view that the insurance contract is a practical contract, that is, the insurance contract has not been established before the insurance premium is paid, is untenable and inconsistent with the above legislation.
3) The insurance contract is a paid contract. A paid contract refers to a contract that must pay a certain consideration because it enjoys certain rights. An insurance contract takes the premium paid by the applicant as the consideration in exchange for the insurer's protection of risks. The consideration of the insured and the insurer is mutual. The consideration of the applicant is to pay the insurance premium to the insurer, and the consideration of the insurer is to bear the risk of the applicant's transfer.
4) The insurance contract is a two-way contract. A bilateral contract refers to a contract in which both parties enjoy rights and assume obligations. In the event of an insurance accident, the insured under an insurance contract has the right to demand the insurer to pay the insurance premium or compensate for the losses according to the insurance contract, and the applicant has the obligation to pay the insurance premium; In the event of an agreed accident, the insurer has the right to collect insurance premiums and the obligation to pay insurance benefits or compensate the insured for losses.
5) The insurance contract is an incidental contract. An attached contract refers to a contract whose contents are not drawn up by both parties through consultation, but drawn up by one party in advance, and the other party only agrees or disagrees. An insurance contract may be concluded in the form of an insurance agreement, an insurance policy or an insurance certificate. In the form of insurance policy and insurance certificate, the insurer shall draw up insurance clauses in advance, and stipulate the rights and obligations of both parties in the insurance clauses. Generally, the insured can only agree, but cannot make substantial changes to the terms and conditions. Of course, the insured can negotiate with the insurer to add special clauses, or limit or expand the insurance liability, but generally it can only be changed under the basic structure and content of the original insurance clauses.
6) The insurance contract is a lucky contract. The word lucky shooting comes from the Latin aleatoria and is associated with alea (meaning death) and aleator (meaning playing dice). Lucky contract is a kind of civil contract, which means that the validity of the contract cannot be determined at the time of signing, that is, one party to the contract may not perform the obligation of payment, and it can only be determined when the conditions agreed in the contract are met or occur. Insurance contract is a typical lucky contract: the insured's obligation to pay the insurance premium according to the insurance contract is certain, while the insurer only undertakes the obligation of compensation or payment when the insurance accident occurs, that is, whether the insurer's obligation is fulfilled is uncertain when the insurance contract is concluded, but depends on whether an unexpected and uncertain insurance accident occurs. However, the luck of an insurance contract is only in terms of a single insurance contract and only in terms of tangible protection.
7) Insurance contract is a good faith contract. In all civil activities, parties should abide by the principle of good faith, and insurance contracts are no exception. Article 5 of China's Insurance Law stipulates: "The parties to insurance activities shall follow the principle of good faith when exercising their rights and performing their obligations." In view of the particularity of insurance relationship, the requirement of honesty and credit by law is far greater than other civil activities. Because the subject matter of insurance is under the control of the insured before or after insurance, and the insurer usually decides whether to insure and the conditions of insurance only according to the notice of the insured. In addition, the insured shall also make a guarantee to the insurer about the past and future matters of the subject matter insured. Therefore, the moral factors and credit status of the insured have a great relationship with insurance management. The complexity and technicality of insurance management make the insurer in an advantageous position in the insurance relationship, while the insured is in a disadvantageous position. This requires the insurer to explain the contents of the insurance contract to the insured when concluding the insurance contract. When an agreed insurance accident occurs, it shall perform obligations such as compensation or payment of insurance benefits. Therefore, the insurance contract requires the honesty and credit of the parties more strictly than the general contract, so it is called a good faith contract.
To sum up, the establishment of an insurance contract is not marked by the issuance of a policy, nor is it based on the payment of premiums. The main sign to judge whether an insurance contract is established is whether the two parties to the insurance contract reach an agreement on the insurance agreement.
(2) Payment of insurance premiums, issuance of insurance policies and entry into force of insurance contracts. The so-called entry into force of an insurance contract means that the established insurance contract has certain legal binding force between the parties. Article 14 of the Insurance Law stipulates: "After the insurance contract is established, the insured shall pay the insurance premium as agreed; The insurer began to bear the insurance liability according to the agreed time. " It can be seen from the provisions of the insurance law that the establishment of an insurance contract and the entry into force of an insurance contract are not the same concept, and they are both related and different.
The establishment of an insurance contract refers to the completion of the contract conclusion process, that is, the parties reach an agreement on the basic contents of the contract through equal consultation, which solves the problem of whether the insurance contract exists, but does not solve the problem of whether the insurance contract is valid.
Generally speaking, if the parties have not stipulated the conditions and time limit for the contract to take effect in the contract, according to the relevant provisions of Article 44 of the Contract Law, a legally established contract shall take effect as of the date of its establishment. However, in insurance practice, some insurance companies begin to assume insurance liability after collecting the first premium, and some insurance companies implement the "zero-time insurance system", that is, they begin to assume insurance liability in the early morning of the next day after issuing the policy. Why is this happening? Paragraph 1 of Article 45 of China's Contract Law stipulates: "The parties may agree on the conditions for the contract to take effect. A contract with effective conditions shall take effect when the conditions are met. A contract with termination conditions is invalid when the conditions are met. " Article 46 of the Contract Law stipulates: "The parties may stipulate the term of validity of the contract. A contract with an effective term shall take effect upon the expiration of the term. A contract with a termination period is invalid at the expiration of the period. " Originally, some insurance companies agreed that the condition for the contract to take effect was to pay the first premium according to Article 45 1 of the Contract Law. Some insurance companies stipulate in Article 46 of the Contract Law that the effective date of the contract is the early morning of the next day when the insurance policy is issued. After the insurance contract came into effect, the insurer began to bear the insurance liability. Therefore, from the analysis of the current insurance law and contract law, it is not necessary to pay premiums and issue insurance policies for an insurance contract to take effect. Whether an insurance contract comes into effect mainly depends on how the insured and the insurer agree on the conditions and time limit for its entry into force.
After an in-depth analysis of the signs of the establishment and entry into force of the insurance contract, aiming at the above-mentioned personal insurance cases, we can easily draw a conclusion: from the whole process of insurance and underwriting, Xie has always wanted to insure, while insurance company A has always wanted to underwrite, and both parties have reached an agreement on the insurance contract, so the insurance contract is established. Since the insurance contract has neither agreed conditions nor agreed time limit for the contract to take effect, according to Article 44 of the Contract Law, if the conditions and time limit for the contract to take effect are not agreed or the agreement is unclear, the contract will take effect immediately. Finally, insurance company A should bear the responsibility of paying insurance benefits.