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Interpretation of Insurance Law (4) article understanding and analysis

The Interpretation of the Supreme People's Court on Several Issues concerning the Application of the Insurance Law of the People's Republic of China (IV) was adopted at the 1738th meeting of the Judicial Committee of the Supreme People's Court on May 14, 2018, promulgated by the Supreme People's Court on August 1, 2018, and entered into force on September 1, 2018.


The Interpretation of the Supreme People's Court on Several Issues concerning the Application of the Insurance Law of the People's Republic of China (IV) was adopted at the 1738th meeting of the Judicial Committee of the Supreme People's Court on May 14, 2018, promulgated by the Supreme People's Court on August 1, 2018, and entered into force on September 1, 2018.

There are 21 articles in Interpretation (IV), which mainly include four aspects: clarifying the related issues of the assignment of the subject matter of insurance; Clarify the rights and obligations of the subject of the insurance contract; Clarify the relevant issues of insurance subrogation; Clarify liability insurance issues.

"Interpretation (IV)" is a summary of the judicial practice of property insurance, detailed provisions on the property insurance contract of the insurance law, and provide judgment standards. This judicial interpretation is highly practical, involving all aspects of property insurance, and is an important legal guide for the handling of property insurance disputes in the future. From the publication of Interpretation (IV) to the implementation of a month, the time to learn and digest is more sufficient, the following article analysis content is the author's understanding of Interpretation (IV).

Article 1  If the subject matter of the insurance has been delivered to the assignee, but the assignee has not registered the change of ownership according to law, and the assignee bears the risk of damage or loss of the subject matter of the insurance, and claims to exercise the rights of the insured in accordance with the provisions of Articles 48 and 49 of the Insurance Law, the people's court shall support it.

Evaluation:Where the assignee has possessed the subject matter of the insurance and has not registered the change of ownership, the assignee has an insurable interest in the subject matter of the insurance. This article deals mainly with real property as the subject matter of insurance.

Article 2  If the insurer has performed the obligation of presentation and explicit explanation provided by the Insurance Law to the applicant, and the assignee of the subject matter insured claims that the clause exempting the insurer from liability is invalid on the ground that the insurer has not provided any presentation or explicit explanation to him after the transfer of the subject matter insured, the people's court shall not support it.

Evaluation:Expressly remind and indicate that the obligation is inheritable.

Article 3  If the party inheriting the subject matter of the insurance claims to inherit the rights and obligations of the insured after the death of the insured, the people's court shall support it.

Evaluation:After the death of the insured, the rights and obligations of the subject matter insured may be inherited.

Article 4 When determining whether the subject matter of insurance constitutes a "significant increase in the degree of risk" as provided for in Articles 49 and 52 of the Insurance Law, the people's court shall comprehensively consider the following factors:

(1) Change of use of the subject matter insured;

(2) Changes in the scope of use of the subject matter insured;

(3) changes in the environment in which the subject matter insured is located;

(4) changes in the subject matter insured due to modification or other reasons;

(5) The change of the user or manager of the subject matter insured;

(6) the duration of the increased risk;

(7) Other factors that may lead to a significant increase in the degree of risk.

Although the degree of risk of the subject matter insured increases, the increased risk falls within the scope of the insurance contract foreseen or should have been foreseen by the insurer at the time of the conclusion of the insurance contract, it shall not constitute a significant increase in the degree of risk.

Evaluation:The application of "significantly increased risk degree" and the judging criteria are detailed.

Article 5 Where an insured event occurs after the insured or the assignee has sent the notice of assignment of the subject matter insured to the insurer in a timely manner in accordance with the law, but before the insurer has given the reply, the people's court shall support the claim of the insured or the assignee that the insurer is liable to pay the insurance benefits in accordance with the insurance contract.

Evaluation:Before the insurer does not reply, the ownership of the rights and obligations of the subject matter insured is uncertain, in this case, the insured and the assignee are regarded as having insurable interests, and either party can claim to the insurer to exercise the contractual rights.

Article 6  If, after the occurrence of an insured event, the insured, in accordance with Article 57 of the Insurance Law, requests the insurer to bear the necessary and reasonable expenses to prevent or reduce the loss of the subject matter insured, and the insurer defends the matter on the grounds that the measures taken by the insured have not produced actual results, the people's court shall not support it.

Evaluation:The necessary and reasonable expenses paid by the insured to prevent or reduce the loss of the subject matter insured shall not be judged by the actual effect.

Article 7 The people's court shall support the insurer's claim of subrogation in accordance with the provisions of Article 60 of the Insurance Law to exercise the insured's right to claim compensation due to infringement or breach of contract by a third party.

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Article 60 of the Insurance Law:

Where an insured event is caused by a third party's damage to the subject matter insured, the insurer shall subrogation the insured's right to claim indemnity against the third party within the amount of indemnity from the date of payment of indemnity to the insured.

After the occurrence of the insured event mentioned in the preceding paragraph, if the insured has already obtained damages from the third party, the insurer may, when making compensation, deduct the amount of damages already obtained by the insured from the third party accordingly.

The exercise by the insurer of the right to claim compensation by subrogation in accordance with paragraph 1 of this Article shall not affect the right of the insured to claim compensation from third parties for the portion of the compensation not recovered.

Evaluation: In previous practice, some courts limited the application of the insurer's subrogation right stipulated in Article 60, paragraph 1, to the right to claim compensation for tort damages, and then on July 3, 2017, the Supreme People's Court issued the 15th batch of guiding cases. Case No. 74, "China Ping An Property Insurance Co., Ltd. Jiangsu Branch v. Jiangsu Zhenjiang Installation Group Co., Ltd. Insurer Subrogation Dispute" (Case No. (2012) Su Shang Re Zi No. 0035), it is clear that if a third party's breach of contract causes damage to the subject matter of insurance of the insured, Article 61 (1) of the Insurance Law can be applied. Now the Supreme Court has made it clear again with the judicial interpretation of this article.

Article 8 The applicant and the insured are different subjects, and if an insured causes an insured accident due to the applicant's damage to the subject matter insured, and the insurer claims to subrogation the insured's right to claim compensation against the applicant according to law, the people's court shall support it, except as otherwise provided by law or agreed in the insurance contract.

Evaluation:It is clear that when the applicant and the insured are not the same subject, and the applicant is not a family member or a member of the insured as stipulated in Article 63 of the Insurance Law, the insurance company may exercise the right of subrogation of the insurer to the applicant.

Article 9   In a lawsuit of subrogation filed by an insurer against a third party, where the third party defends on the grounds that the insured has waived the right to claim compensation before the conclusion of the insurance contract, the people's court finds the above-mentioned waiver lawful and valid, and the insurer claims to exercise the right of subrogation in respect of the corresponding part, the people's court will not support it.

At the conclusion of the insurance contract, if the insurer asks whether there is any such waiver and the applicant fails to tell the truth, resulting in the insurer being unable to exercise the right to claim compensation by subrogation, and the insurer requests the return of the corresponding insurance benefits, the people's court shall support, except that the insurer knows or should know the above circumstances and still agrees to the insurance.

Evaluation:1. In the dispute of the insurer's right of subrogation, the insured's rights are the basis and source of the insurer's rights. If the insured gives up the right to claim compensation to the third party before the conclusion of the insurance contract, the insurer has no right to seek compensation from the third party. Waiver of the right before the conclusion of the insurance contract is a necessary prerequisite of this article. According to paragraph 1 of Article 61 of the Insurance Law, if the insured waives the right to claim compensation against a third party after the occurrence of an insured event and before the insurer fails to pay the insurance benefits, the insurer shall not be liable for compensation. However, if the insured abandons the right to claim compensation from the third party after the insurance contract is signed and before the insurance accident occurs, whether the insurer shall bear the liability for compensation is not clearly stipulated, and the insurance contract and insurance terms shall prevail.

(2) Whether the insured has given up the right to claim compensation to the third party belongs to the situation stipulated in Article 16 of the Insurance Law "which is enough to influence the insurer's decision whether to agree to the insurance or raise the insurance rate", and belongs to the scope of the insurance applicant's obligation to tell the truth, and fails to perform the obligation, the interpretation of this article applies to the provisions of Article 16 of the Insurance Law.

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Article 16 of the Insurance Law of the People's Republic of China

In the conclusion of an insurance contract, where the insurer makes inquiries concerning the subject matter insured or the insured, the applicant shall truthfully inform the insurer.

If the applicant intentionally or due to gross negligence fails to perform the obligation of truthful disclosure stipulated in the preceding paragraph, which is sufficient to influence the insurer's decision on whether to agree to the underwriting or raise the premium rate, the insurer shall have the right to rescind the contract.

The right to rescind a contract as provided for in the preceding paragraph shall expire if the insurer fails to exercise it within 30 days from the date on which the insurer becomes aware of the cause for rescission. The insurer may not rescind the contract if more than two years have elapsed since the date of formation of the contract. Where an insured accident occurs, the insurer shall be liable for compensation or payment of insurance benefits.

If the applicant intentionally fails to perform the obligation of truthful disclosure, the insurer shall not be liable for compensation or payment of insurance benefits for the insured event occurring before the termination of the contract, and shall not refund the premium.

If the applicant fails to perform the obligation of truthful disclosure due to gross negligence, which has a serious impact on the occurrence of the insured event, the insurer shall not be liable for compensation or payment of insurance benefits for the insured event occurring before the termination of the contract, but shall refund the premium.

The insurer may not rescind the contract if at the time the contract is concluded the insurer already knows the information which the applicant has not truthfully informed; Where an insured accident occurs, the insurer shall be liable for compensation or payment of insurance benefits.

An insured event refers to an event within the scope of insurance liability as agreed upon in an insurance contract.

 

Article 10  Where an insured event is caused by a third party's damage to the subject matter insured, and the insurer obtains the right to claim compensation by subrogation without notifying the third party or before the notice reaches the third party, the third party makes compensation to the insured within the scope of the compensation already received from the insurer, and the insurer claims to exercise the insured's right to claim compensation against the third party by subrogation, The people's court did not support it. Where the insurer claims the return of the insurance money by the insured, the people's court shall support it.

Where the insurer has been notified of the right to claim compensation by subrogation to a third party, and the third party has made compensation to the insured, and the insurer claims to exercise the right to claim compensation by subrogation, and the third party argues that it has made compensation to the insured, the people's court shall not support it.

Evaluation:It is necessary for the insurer to notify the third party insurer of the situation of subrogation after the claim is settled, and it is recommended that the insurance company notify the third party of the relevant situation after the claim is settled.

Article 11  If the insured fails to perform the obligations stipulated in Article 63 of the Insurance Law due to intentional or gross negligence, resulting in the insurer failing to exercise or fully exercise the right to claim compensation by subrogation, and the insurer claims to deduct or return the corresponding insurance benefits within the scope of its loss, the people's court shall support it.

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Insurance Law Article 63:

When the insurer exercises the right of subrogation to claim compensation against a third party, the insured shall provide the insurer with the necessary documents and the relevant information it knows.

Evaluation:The detailed interpretation of the insured's obligation to assist the exercise of the right of subrogation in Article 63 of the Insurance Law makes the provisions of Article 63 operational.

Article 13  If the insured has already filed a lawsuit with a third party when the insurer files a suit for subrogation, the people's court may jointly try the case according to law.

When the insurer exercises the right of subrogation, the insured has filed a lawsuit with a third party, and the insurer applies to the people's court accepting the case to change the parties and exercise the right of the insured to claim compensation against the third party by subrogation, and the insured agrees, the people's court shall allow it; If the insured does not agree, the insurer may participate in the lawsuit as a co-plaintiff.

Evaluation:The insurer exercising the right of subrogation can Sue the third party individually or participate in the litigation between the insured and the third party.

Article 15  Where, after the insured's liability for compensation to the third party is determined, the insured fails to perform the liability for compensation, and the third party brings a lawsuit against the insurer or the insurer and the insured as co-defendants, and the insured has not submitted a request to the insurer for compensation directly to the third party, May be identified as belonging to the insurance law article 65, paragraph 2, "the insured lazy request" situation.

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Article 65 (2) of the Insurance Law:

If the insured of liability insurance causes damage to a third party, and the liability of the insured to the third party is determined, the insurer shall, at the request of the insured, directly compensate the insurance benefits to the third party. If the insured fails to make a claim, the third party shall have the right to claim indemnity directly from the insurer for the part of the indemnity payable.

Evaluation:In addition to the "determination of the liability of the insured to the third party" stipulated in the second paragraph of Article 65 of the Insurance Law, a third party should Sue the insurer or Sue the insurer and the insured as co-defendants. According to the interpretation of this article, the third party of liability insurance may Sue the insurer to require the insurer to pay insurance damages directly to the third party after the liability of the insured is determined. This interpretation actually breaks through the principle of contract relativity.

Article 16  If the insured of liability insurance bears joint liability according to law due to joint tort, and the insurer refuses to pay the insurance benefits on the ground that the joint liability exceeds the insured's share of liability, the people's court shall not support it. If, after the insurer has assumed the insurance liability, the insurer claims to recover the portion exceeding the insured's share of liability from other persons jointly liable, the people's court shall support it.

Evaluation:This article provides that the insurer can subrogation to other debtors to exercise the right of joint debt recovery, which is different from the insurer's right of subrogation, the latter is to recover the third party that caused the damage to the subject matter of insurance, the former is a joint infringer.

Article 17  Where the liability liability of the insured to the third party has been confirmed by the effective judgment and has entered the enforcement procedure, but has not been satisfied or has not been fully satisfied, and the third party requests the insurer to compensate the insurance money according to law, and the insurer defends on the grounds that the aforesaid effective judgment has entered the enforcement procedure, the people's court shall not support it.

Evaluation:The third party of liability insurance may Sue the insurer for the payment of liability insurance compensation for the uncompensated amount even if the case against the insured for compensation has entered the execution stage. Whether the third party has the right to Sue the insurer is judged by whether the compensation has been satisfied, rather than whether the case between the third party and the insured has entered the execution stage.

Article 20  If the insurer of liability insurance pays indemnity to the insured before the insured pays indemnity to the third party, and the third party exercises the right to claim indemnity in accordance with the second paragraph of Article 65 of the Insurance Law, and the insurer refuses to pay indemnity on the ground that he has already paid indemnity to the insured, the People's Court shall not support it. Where the insurer requests the insured to return the corresponding insurance money after making compensation to the third party, the people's court shall support it.

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Article 65 (3) of the Insurance Law:

If the insured of liability insurance causes damage to a third party and the insured fails to make indemnity to the third party, the insurer shall not pay indemnity to the insured.

Evaluation:This interpretation provides for the opposite situation of Article 65, paragraph 3 of the Insurance Law, and its purpose is to ensure that the third party gets the liability insurance compensation, which is also a breakthrough in the relativity of contracts.

Article 21 This interpretation shall come into force as of September 1, 2018.

The Interpretation shall apply to cases of first and second instance that are being tried by the people's court after the implementation of this Interpretation; This interpretation shall not apply to cases in which the parties apply for a retrial or decide to retrial in accordance with the procedure of trial supervision.

Evaluation:The content of Interpretation (IV) is not the creation of the Supreme People's Court, but is derived from the summary of judicial practice experience of courts at all levels. Although the content involved in Interpretation (IV) has not been explicitly stipulated by law before, it can be inferred from the insurance law, judicial interpretation of Insurance law and other legal provisions. In short, Interpretation (IV) is a true knowledge that has been tested in practice, and the Supreme Law has fixed it in the form of judicial interpretation. Therefore, if the judgment basis and the application of law of the case that has been decided and entered into force are inconsistent with the Interpretation (IV), it belongs to the deviation of the original trial judge's understanding of the law, and the parties apply for a retrial or the court decides that the retrial case does not apply the Interpretation (IV). However, according to the insurance Law, the judicial interpretation of the Insurance law and other legal provisions, as well as the correct application and understanding of the law contained in similar cases and guiding cases, the original trial court can claim that the application of the law is wrong and request a revision of the judgment.

For example, the interpretation of the content of article 7 has been clarified by the Supreme Court guidance case, even if this Interpretation (4) is not applied, and the lower court makes a judgment contrary to the spirit of the guidance case, the court may correct it in the retrial procedure. Interpretation of Article 9 on "The insurer has no right to claim the insurer's right of subrogation to the third party before the conclusion of the insurance contract, the insurer has no right to claim the insurer's right of subrogation to the third party, because the insured's right is the basis and source of the insurer's right of subrogation, the insurer has no right to file the right of subrogation. This article can be drawn from the legislative purpose and logic of the insurance law on the right of subrogation, even if Interpretation (IV) is not applied, the lawsuit should be judged according to this logic. If the effective judgment contradicts this logic, it is an error in the application of law and should be corrected in the retrial procedure.

In general, the formulation of Interpretation (IV) has adhered to people-oriented and paid attention to protecting the legitimate rights and interests of insurance consumers; Adhere to balanced protection and promote the healthy development of insurance industry; Respect insurance judicial law, abide by the general principles of insurance; Based on the development status of the insurance industry, reserve space for future innovation. "Interpretation (IV)" responds to the needs of social development and the rapid development of the insurance market, and is of great significance for the people's courts at all levels to correctly hear cases of insurance contract disputes, safeguard the legitimate rights and interests of the parties, and promote the healthy development of the insurance industry.