Analysis of the legal status of the insured

Keywords: insured; insurance benefits; the interests of the insurance contract; third

Summary: The existence of the insured and to determine where the stArting point for Research, rights and obligations of the insured sum set. The rights of the insured to track new developments in legislation, reveals the interests of the insured and the insurance contract and insurance interests. Is insurer exists in the relationship between the various elements of the insurance contract, among the legal status of its insured and to explore the relationship between the characteristics of other elements for the extension. Meanwhile, the insured and the general interests of the third section in the contract Three comparison, the insured person as defined in the special legal status.



<"Insurance Law"> on February 28, 2009 revised and has begun implementation of the insurance contract Law pArt of the revision and Japan in 2008 Insurance Act, from the Commercial Code, separated into separate branches of Law in time quite close, Japan <"Insurance Law" contained in the legislative principle of "strengthening the protection of the insured pArty," and China <"Insurance Law"> modify the "protection of the insured person's ideas exist side by side." Although the two systems contain many aspects of the specific requirements, but are related to the legal status of the insured person as defined in this problem. insured is the subject of special insurance contracts in the field of contract law hard to find the corresponding body system. The insured person's legal status Although widely mentioned, but it has always been the lack of theoretical depth and systematic attention, leading to a normative level lack the necessary theoretical support. The insured from the perspective of the rights and obligations, insurance contracts covering almost all of the system of rights and obligations set highlights the special status of the insured; from other insurance contracts with the relationship between various elements of the perspective of the insured in the various elements of the insurance contract core; from the basic theory and the convergence of contract law and comparative perspective, the insured and the third contract in the third person of interest varied considerably.


First, there is the insured pArty occasions and determined

Insured property in the Life Insurance contract and the existence of insurance contracts is not the same.


(A) property insurance in the insured

In the property insurance contract, there is the same insured and the insured person's situation, that the interests of policyholders for their insurance, there are also different from the insured and the insured for a situation in which the interests of the insurer to other insurance, such as land, sea and air passenger transport and storage sectors of the property insurance contract. In addition to the insured's third pArty property insurance also often occur in international trade, such as the CIF as a condition of the transaction.


(B) Life Insurance contract the insured

Existing Life Insurance Life Insurance policyholders with their own circumstances, there is also Life Insurance policyholders in the case of others, the insured person is the subject of insurance contracts in its life as a person. And property insurance in the insured people are different, in addition to the insured and the insurance contract of insurance between the interests of the subject requirements, Life Insurance between the insured and the insured has an insurable interest requirements.


(C) the method for determining the insured

Insured in the insurance contract must be clearly defined to determine the way include the following:

First, clear out the insured person's name or the name of the insured may be natural, it can be legal. (Legal non-life and health of all, life insurance contract the insured is limited to natural persons) the insured is a natural person shall be set forth in the insurance contract their names. The insured person is a legal entity, shall set forth the name of the insurance contract the insured may be one person, it can be more than eleven per insured shall contain Ming.


Second, the way to change the terms of the contract to determine the insured. Increase in the insurance contract, a change in the terms of the insured, if the conditions for the establishment of the terms of the agreement, the main candidate automatically become insured, the insured person to obtain status. Lessee or trustee of such property of the insured as an alternate, lessee or trustee after the change made with the original insured the same qualifications.


Third, a way to extend this approach to determine the insured does not directly specify the insured person, nor be determined to sort the insured, and to expand the ways in which a range of staff have been insured status.


Second, China <"Insurance Law"> the rights of the insured obligations

Parties to the contract of insurance policyholders, the insured is a contractual relationship between the insurance people. [1] (P37) is worth noting that when the insured are not all the enjoyment of rights and obligations of insurance contracts and the bearer of the insured and the insured in a situation different, the insured and not insured as insurance contract rights and obligations set by the main core of existence where the insured person, the system of property insurance contracts set aside the insured and the insured directly to people at the center started. property interests of the insurance contract, the availability of insurance to the insured is measured Subject of <"Insurance Law"> Article 48 provides that the insurance when the accident occurred, the insured person insured has no insurable interest, and not to the insurer insurance assigned to insurance that protect the objects insured security obligations of " Insurance Law "> Article 51 provides that the insured shall observe the relevant fire, safety, production, operations and labor protection requirements in respect of maintenance of the objects insured assigned to insurance increased risk of notification obligations. China <" Insurance Law " Article 52 provides that the contract period, the insured risk was significantly increased, the insured shall be in accordance with the contract, promptly notify the insurer assigned to insurance disaster loss prevention obligations of <"Insurance>> 57 provisions, insurance time of the accident, the insured should make every effort to take the necessary measures to prevent or mitigate losses. (5) the insured is insured object the exercise of subrogation of <"Insurance Law"> Article 60 provides that a third party insurance for the damage of the subject insured, the insurer from the insured for indemnity date, within the amount of compensation on behalf of the insured to exercise the right to compensation against the third party.


In the life insurance contract, based on the existence of the insured, resulting in a system different from setting property insurance life insurance contract, the insured was the subject of a life and health insurers must have an insurable interest in national insurance law for insurance coverage person has an insurable interest in the scope of the insured to take a different legislative approach: enumerate Doctrine legislation, agreed to Marxist doctrine and consent legislation and doctrine cited with legislation. China has taken a third approach, that law directly provides a range of insured persons of having an insurable interest, while providing the consent of the insured after also regarded as having an insurable interest. entered into the death of the conditions for the payment of insurance life insurance contract subject to consent of the insured. based on our "Insurance Law"> Article 34, paragraph 1 provisions to death for the payment of insurance contract terms, without the consent of the insurer and the insured amount approved, the contract is invalid to death as the payment of insurance terms life insurance contract is subject to the transfer and pledge consent of the insured. based on our <"Insurance Law"> Article 34, paragraph 2, to death in accordance with the conditions for the payment of insurance contracts issued by insurance policy, without the written consent of the insured may not be transferred and pledged. the insured has designated and benefit changes the rights of the insured to the beneficiary designation and change the subject to the consent of the insured. beneficiary of life insurance contract specified by the insured and the insured and change, but the insured to the beneficiary designation and changes must be After the consent of the insured. ① insured enjoy the ultimate ownership of insurance. If there is no designated beneficiary or beneficiaries designated unknown can not be confirmed; predeceases the insured person's death, there are no other beneficiaries; beneficiaries according to the law loss of beneficial interest or beneficial interest to give up, no other beneficiary, the insurance as the insured's estate. ②

Clear from the insured in the insurance contract and enjoy extensive rights, with a wide range of obligations. The rights of the insured can be summarized as the following: the insurance contract, the insured signed consent; insured specified, the right to change the beneficiary; insured the right to request insurance; be designated or consent of the insured the right to change the beneficiary; the insured person's obligations include: Duty to Inform; disaster loss prevention duties; increased risk of notification obligations; risk of occurrence of notification obligations. can be seen, the insurance contract, in addition to the obligation to pay the premium has almost all of the rights and obligations body consists of the insured.


Third, rights and obligations of insured reasons set

From the ultimate purpose of the insurance contract - the insurance to take delivery of the results of observation, the interests of the insurance contract comes down to claim the insurance payment, any other set of rights and obligations are to serve the realization of the right to the core. In the insurance contract build the right system, the insurance claim is the core position. of the insured should determine the origins of rights and obligations of its insurance claim for the enjoyment of the situation as an important standard.


Insurance benefits are insured and insurance interests between the subject, the interests of the insured on the insurance status of whether the owner of the insurance contract to become a series of rights and obligations under insurance contracts are well vested interests? This to explore the issue of insurable interest as a starting point to end the interests of the insurance contract. insurable interest and the interests of the insurance contract, functional differences: the central role of insurance benefits is to prevent moral hazard ③, the interests of the insurance contract is to highlight the central role of insurance protection features , both in the development of the insurance play a "guard" and "beach-goers" role. in the legal status of the insured on the issue, the intersection of the two occurs. insurable interest in the decision with the interests of the insurance contract between the former decision the former or the latter decided the latter? lackluster academic discourses, according to the general principles of contract law: the attribution of the decision the subject of the contract the contract vested interests, the main object of the contract vested contractual right to enjoy extensive rights and contract actions. Of course, the subject of the contract ownership is the main subject of contracts, and in the insurance contract, the situation is more complicated. contract attributable to the interests of the subject insured, the insured and the insurance contract is entered into the main policyholder, based on a variety of different reasons, the interests of the insurance contract attributable to the insured or the insured? set of legal norms seem to prefer the latter will contract attributable to the interests of the insured. In this way, with the contract is the contract entered into by those who enjoy the benefits goes against the general principle, but with contract, the contract is the subject of vested interests but also those who enjoy the idea of ​​consistency. In my humble opinion, the ownership of the insurance interests of the insurance contract, the main decision body vested interests rather than the contrary, the following reasons.


First, the preventive value of the sequence of moral hazard among the top ranks of economic benefits arising from the insurance later.


A historical perspective of the insurance carriers during pursuit of economic interests of the insurance industry and development of the source of power, moral hazard prevention and insurance operations concomitant. Especially in the insurance industry has a more mature, to prevent moral hazard has become the basic principles of national security legislation. Existence of the insured where, on the insured the protection of life and property values ​​in the order on the legislative forefront, while the insured and the insurer the protection of economic interests among the later. The insured has an insurable interest, and the insurance the interests of the insured to give the contract easy to produce moral hazard. Therefore, the insured has an insurable interest in insurance contracts shall enjoy the benefits.


Second, the insured to the insurance contract, including the purpose of transferring the meaning of the interests of the insurance contract.


As the insurance contract the insured party "bears the obligation to pay the premium, not must have an insurable interest in the insurance when the accident occurred while the damage to the person." [2] (P126) property insurance, the insured to the insurance contract, in Insurance insured accident insurance claim made; life insurance, the insured to the insurance contracts, insurance insured when the accident occurred survival, by the insured to obtain insurance payment, the insured person dies, the beneficiary obtaining the insurance money. insured the beginning of the conclusion of insurance contracts, insurance contracts already decided the ultimate ownership is not their own interests. can be seen, the insured to the insured person's property or personal insurance of the occasion, with the interests of the insurance contract, the subjective assignment purposes. This alienation, in property insurance contracts, the contract under the interests of the insured person; life insurance contract, the contract under the interests of people insured and the beneficiary, "the beneficiary's legal relationship with the insurer only occurs when the insured person dies. "[3] (P57) to survive the insured, the insurance contract owned by all of its interests. Comprehensive all insurance types, the law established the interests of policyholders transferring the subjective purpose of the insurance contract, the insured is vested interests of the insurance contract, the best choice.


In property insurance, the insured person as a "loss of the beneficiaries of the insurance contract" has a right to insurance claims. Policyholder Although contracts for insurance, pay premiums, but because the insured is an insurable interest in the ownership of the property subject of insurance The claim that the interests of the insurance contract owned by the insured all. In life insurance, the insurance money eventually have to take delivery of the insurance claim payment, its not always agree with the insured. not to be insured for the payment of the insurance death conditions of life insurance contracts, insurance claims and insurance interests of the owner should be consistent, otherwise easily lead to injury and the insured person's moral and physical dangers of life. the death of the insured for the payment of insurance terms life insurance contract, the provisions of the law directly claim the insurance money belongs to the beneficiary. extended to determine the status of the beneficiary - directly or indirectly from the insured and the specified or agreed, in the absence of eligible beneficiaries of the occasion, insurance ownership the insured property. In this connection, we can draw the vesting of the life insurance contract subject to judge, regardless of insurance claim to enjoy what the subject - the insured, the beneficiary or the heirs of the insured, the insurance contract, the insured shall be vested in the interests of all.


The ownership of the insurance interests of the ownership interests of the insurance contract decisions, the insured has an insurable interest, the insurance also shall be vested in the interests of all its contracts, this is the right of the insured person has a broad and extensive obligations.

Links to Free Download Center http://www.hi138.com four papers, Japan <"Insurance Law"> in the termination of the contract the insured the right to request the creation of

Amended in 2008, the Japanese <"Insurance Law", added the insured the right to request termination of the contract, the provisions of insurance contracts in death, injury and disease, injury Disease fixed damage insurance contracts after the conclusion of insurance contracts, the occurrence of certain reasons, the insured the insured may request the right to lift the insurance contract. <"Insurance Law"> there is no such requirement, the right of cancellation of insurance contracts are insured. based on the general principles of contract law, parties to the contract the right to terminate the contract conditions, or by agreement after the lifting of the contract already in force, or the subject matter of the law appears the parties may terminate the contract. <"Insurance Law"> in the right of cancellation by the insured entitled to the provisions of the contract is undoubtedly the general principles of contract law follow. The stability of the insurance contract for the interests of the insured and the creation of a balance between protection, Japan <"Insurance Law"> increase in the insured the right to request termination of the contract system requires the insured person has the right to cancel the request, the request is not a direct result of the termination of the effectiveness of the insurance contract, if the applicant does not cancel the contract, the insured may bring to the insured as a defendant "to the referee instead of the debtor's intention," the lawsuit be determined by the court decision the referee, as an alternative to the insured intention to terminate the contract [4] (P33) Japan <"Insurance Law"> of this practice, practice and in the relationship between the insured and the insured changes directly give the insured the right to terminate the contract is no different, which will the rights of the insured to affect the validity of the contract extending the system to such an approach Shenju rationality: the insured the lives of others where the conclusion of insurance contracts, the insured person's right to life is the subject of the insurance contract, out of respect for the insured personal rights and safeguard the interests of the insured lives, and to prevent moral hazard considerations, the insured have the right of cancellation of insurance contracts should be subject to the constraints insured.


On the one hand, the long-term life insurance contract determines the change in the party there will be generated to terminate the contract based on the needs of the situation. Policyholder exercise of the right to terminate the contract to terminate the insurance contract, the insured person's right to take delivery of the consequent disappearance of insurance. Life insurance contracts mostly been based on the age of the insured entered into the older the insured, the greater the risk of death occurs, the higher the insurance premium rate for the consideration of risk control, the insured over a certain age, life insurance companies not even covered. can be seen, the insured will be any exercise of the right to terminate the insurance contract against the interests of the insured.


On the other hand, the insured and the insured may result in changes in the relationship between the insured when contracting the subsequent loss of insurance benefits exist, such as the end of the relationship between husband and wife. At this point, if the applicant does not cancel the contract, insurance contracts remain in force, no doubt the life of the insured person will pose a great threat to increase the moral hazard occur. If the insured directly given the right to terminate the contract, will the interests of their clients and the insured status of clashes have right to terminate the contract the main subject and different contracts for a contradiction.


Five of the insured and the insurance contract between the elements of nature

(A) the insured and the insurance relationship between the characteristics of the subject

The insured person or property interests can be summed up his life, physical, and health insurance contract and protection of people, the insured and the insurance relationship between the subject matter is evident. In the property insurance contract, the insured and the insurance relationship between the embodied subject the insured person is the subject of property insurance contract holders. Under the present legal system, these rights can be summarized as the following three: First, the existing interest; Second, based on the interests of the existing interests of the expectations generated; third, rights based on a legal basis for the expectations generated, [5] (P21) the insured's interest in the subject of insurance and decisions directly affect the insured in the property insurance contract rights and obligations. property insurance, the following to fill the harm principle purpose is to fill the insurance risk of occurrence of insured person when loss actually suffered damage. policyholder Although parties to the contract of insurance, but in the event of an accident the insurance losses may not be the actual person. profits, damage where the insurer to the insured insurance money to meet the purpose of the existence of the insurance contract of insurance entered into the subject of risk assessment by insurance-based, so the <"Insurance Law"> in conjunction with the provisions of the insured and the insured bear to reveal insured danger Duty to Inform. insurance contracts to the survival of the insured risk areas to maintain for the protection of the insured disaster loss prevention obligations that is to control the degree of risk measures. As for the insured risk occurs obligation to notify such as insurance claims are for the purpose of realization of the right.


In the life insurance contract, the insured person's life and body is the subject of the insurance contract. National legislation on the insured and the insured's insurance requirements are different interests: one is the consent doctrine legislation to require the insured to the lives of others or the body of the person insured must consent; one is the insurable interest doctrine legislation requiring the insured for a certain range of the wife has an insurable interest in the death of the insured non-payment of insurance to personal insurance without going through the consent of the insured can direct insurance. China is the second legislative approach taken by the general life insurance contract the insured has an insurable interest can be directly insured to death for the payment of insurance terms life insurance contract must obtain the consent of the insured . This agreement provides a simple doctrine to avoid the legislative process cumbersome and inconvenient, to advocate the socialist moral develop mutual aid and fraternity between people play an active role in guiding spirit, while taking into account the personal rights of the insured respect and guard against moral hazard. However, this legislation easy to make a wrong understanding, that is, that the insured on the insured has an insurable interest in life and physical essence, the insured person's right to life, health rights, health vested in the insured person's exclusive rights, legal rights not transferred to others by the provisions of the law relating to all insurance policyholders on a range of personnel having an insurable interest provisions of the law is only insured for the true meaning of the presumption that that a range of transferring the insured person has their own right to life or health insurance means

(B) the insured and the insurance relationship between the characteristics of claims

In the property insurance contract, the decision to fill the principles of damage insurance when the accident occurred the insurance loss insurance to take delivery of the human person, the subject of the insured and insurance interests between the decision to the insured (not insured) is the actual who suffered loss, which insurance claims should be part of the insured. In the life insurance contract, the payment of insurance premiums from the insured is the accumulation of insurance contract premiums paid people. Meanwhile, the life insurance contract to the insured person's birth, old age, death, burial for the insurance liability, insurance money paid to the insured person's life, physical condition for the condition. insurance claim is the insured or the insured person belongs to? our current legislation does not clearly defined. based on the general principles of contract law, as the insured parties to the contract shall have the right to insurance claims, but the characteristics of life insurance contracts determine the ownership interests of the contract and the contract is entered into the main subject is not the same. In survival situations the insured, the insured, though the law by way of consent or to crossing the right of its body covering, but this assignment includes the contents of their benefits to prevent moral hazard based on the purpose, the insured should be presumed to have the means to benefit the insured. so, the basis of life insurance contract that meet the the insured person the right to protection and public order and morals of the requirements. visible in the insured the survival of the occasion, life insurance contract claim for the insurance than insured must go, others (including the insured) were not from the enjoyment of insurance claims right in the death of the insured where the insurance payment is attributable to the surface of the beneficiary, the beneficiary of the insurance money to obtain the original are made in accordance with law. However, the right to change the beneficiary designation and control in the hands of the insured, the insured people and change the designated beneficiary must obtain the consent of the insured shall become effective. visible enjoyment of the right to insurance claims to insurance that the main meaning of that decision, he incurs the meaning insurers have to decide before his death entitled to insurance money the right subject, and insured a similar disposition of their heritage in the absence of eligible beneficiaries, the insurance included in the insured's estate (rather than the legacy of the insured.) can be seen, the law tends to the provisions of the insured Subject to the enjoyment of insurance, but take into account the insured to pay the insurance contract parties to the contract status of insurance premiums, not to express it.


(C) The relationship between the insurer and the insured nature

In the property insurance contract, is the relationship between insurer and insured is not in the list of study of insurance contracts, the insured and the insured does not affect the relationship between the reasons for the effectiveness of property insurance contracts. Held them for years, nothing more than business associates on the with favor on the gift in the life insurance contract, is the relationship between insurer and the insured shall express, or for loved ones emotional person, or person closely linked to money. to prevent the gambling mind the principle of insurable interest in the UK "1774 Life Insurance Law">, commonly known as <"Anti Gambling Act>> expressed as: life insurance contract, to the insured of the insured has an insurable interest in the condition, otherwise the contract is invalid. but such insurance benefits In addition to the insured on his own life, but to "cause the death of the insured and its legal or de facto property rights, actual or potential loss or reduction" [6] (P22) as the standard. China's "Insurance Law"> does not provide this a standard, the list of persons having an insurable interest involving emotional connection also involves economic links.


(D) The relationship between insurer and beneficiary characteristics

The insured to the beneficiary designation and change the meaning from the insured that self-government, law random system is necessary. In addition to the United States outside of California, Insurance Law, Insurance Law, the world none of the provisions of the beneficiaries of the insured must have insurable interest. Insurance between man and the insured's insurable interest provisions have been able to achieve a ban on gambling and prevent moral hazard function, there is no insurable interest is necessary to limit additional beneficiaries, it shall be the decision entirely to the insured.


(E) all of the insured and the policy relationship between the characteristics of

After the policy is issued on policy ownership an individual or organization for the policy owner. Property insurance contract, the policy has no cash value to their property insured, the insured himself is the policy owner; to insured property of others, was insured policy owner. a lot of savings of a life insurance contract, insurance policies with cash value, may be based on the policy of transfer or pledge of property. so, the policy owner can be a beneficiary, it can be insured, you can also is in addition to the beneficiary, other than the insured person.


Six of the insured in the contract with the Third Party Comparison of the third

Based on the general theory of contract law, contract determines the relative parties to the contract rights and obligations under the contract, other generally do not have contractual rights to the principal, or contractual obligations, only one of the parties to the contract based on contract or request to the other proceedings. As the contract exception to the principle of relativity - the interests of the third contract, although the interests of many scholars as the third representative of the typical contract, the insurance contract the insured and the third contract in the third person of interest the rights and obligations, there are many different settings.


Insured entered into a contract of insurance the right to participate, under certain conditions, entry into force of the insurance contract to the insured person's consent for the elements. Third Party Beneficiary Contracts in the third person not contracting parties, do not sign the contract and not through their agents in contracting. In addition to the insured person entitled to claim for the insurance, the need to undertake many obligations, including both the first contract obligations (Duty to Inform), including contractual obligations. (Notification of the accident the insurance obligations, etc.), but also a legal obligation (the obligation to loss prevention and disaster reduction at increased risk of obligation to notify, etc.). Third Party Beneficiary Contracts in the third person is only entitled to the rights, not obligations. Insured entitled to claim for the insurance from the insured is not specified, but from the direct provisions of insurance law, and this claim can be specified by the beneficiary and return the beneficiary other than the insured to enjoy. Meanwhile, in the absence of Eligible beneficiaries of the circumstances, the insurance payments as the legacy of the insured by the insured person's heirs inherit the interests of the third contract in the third person to enjoy the beneficial interest is subject to the specified parties to the contract, only by the third people to enjoy, not any transfer and inheritance. the death of the insured for the payment of insurance terms life insurance contracts entered into prior consent of the consent of the insured the contract of the Third Party without prior notice or consent of the third consent. ④

Fully visible: the insured in the insurance contract and enjoy extensive rights and interests of the insurance contract is the ultimate home, and also the subject of the insurance contract who has an insurable interest. Meanwhile, in addition to the obligation to pay insurance premiums, the insured required to bear a wide range of insurance contract obligations. Insured system of rights and obligations of the insurance contract covers almost all the rights and obligations, will be insured as a third simply the interests of the contract is clearly a third party interests can not meet the needs of the insured and can not meet Insurance Law emphasis on the protection of the insured person the legislative goals. Compared with the insured, the insured person does not enjoy the right to terminate the insurance contract, insurance contract is not entitled to lift the cash value after the recovery of the rights of insurance policy. However, the Japanese "Insurance Law"> in the new insured to terminate the insurance contract claims, the rights of the insured person will expand to impact the effectiveness of the system of insurance contract to a principal if the legal status of the main body by the rights and obligations of the reflection and decision, It seems to come to this conclusion: the insured person already has a contract beyond the general class of third party status.




Notes:
① see <"Insurance Law"> section 39,40,41 amended.

② see <"Insurance Law"> 42.

③ moral risk is insured, the insured or the beneficiary to seek insurance for the purpose of intentional acts or omissions caused or extended hazard. See Qun Bi: <"Insurance Act of>>, San Min Book 2006 edition, p. 129 .

④ the interests of a third party involved in text analysis on the characteristics cited in the contract Wang Liming: <<Third Party Beneficiary Contract> ", in <<legal modernization Research"> VIII, Nanjing Normal University Press, 2002, p. 371 - 373.

[References]:
[1] [days] Dan Shanzhuo mill. <"Modern Insurance Law>> [M]. Tokyo: written Church, 2005.

[2] Lin Qun Bute. <"Insurance Act of>> [M]. York: Sage, 2006.

[3] Jiang Zhaoguo. <"Insurance Law of the basic theory>> [M]. Beijing: China University of Political Science, 2002.

[4] Sun Qixiang. <"Insurance Studies>> [M]. Beijing: Peking University Press, 2009.

[5] Yue Wei. <"The Japanese principle of insurance law and the legislative reference to China>> [J]. Contemporary Law, 2009 (4).

[6] Shiwen Sen. Insurance Law Thesis: A [C]. New York: Publishing Company, 1986.

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