論海上保險合同中的最大誠信原則
發(fā)布時間：2018-10-21 12:39
【摘要】： 誠實信用原則是我國民法的一項基本原則。保險合同行為作為一項民事行為,合同雙方應(yīng)受該原則拘束。海上保險活動和保險合同的特殊性衍生了最大誠信原則。 目前,我國法律中尚無最大誠信原則的概念。那么,英國《1906年海上保險法》中的最大誠信原則在我國法律中是否有所體現(xiàn)呢?最大誠信原則與我國法律中的誠信原則有何聯(lián)系和區(qū)別呢?我國法律中這方面的內(nèi)容有無需要完善之處呢?帶著這些疑問,筆者在文中論述了下列問題:民事法律基本原則的概況及其作用;海上保險合同中的最大誠信原則的起源及發(fā)展;最大誠信原則的基本問題;中英法律中關(guān)于最大誠信原則內(nèi)容的比較;中國法中關(guān)于最大誠信原則的內(nèi)容的不足及今后立法展望。 通過參閱大量的國內(nèi)外學(xué)者的著作以及國外的判例,筆者認(rèn)為,最大誠信原則實質(zhì)上就是誠信原則,是誠信原則在海上保險合同制度中的運用和自然發(fā)展。它不僅適用于海上保險合同訂立以前,也適用于海上保險合同訂立以后;不僅對被保險人(投保人)的信息披露義務(wù)提出嚴(yán)格的要求,對保險人同樣也課以嚴(yán)格的告知義務(wù)。我們在關(guān)注該原則對于被保險人嚴(yán)格要求同時,決不應(yīng)忽視它對于保險人所規(guī)定的義務(wù),因為,在現(xiàn)實的保險實踐中,有些保險人往往利用其強大優(yōu)勢以及有些被保險人保險知識匱乏或者疏忽等原因,惡意造成被保險人違約,以達到獲取非法利益的目的。另外,有限的法律條文不可能窮盡復(fù)雜紛爭的大千世界的方方面面,因此,對于最大誠信原則的理解,決不應(yīng)該僅僅局限于法律所規(guī)定的諸如告知義務(wù)等的具體內(nèi)容,保險合同的雙方當(dāng)事人,都應(yīng)該自覺遵守最大誠信原則。只有如此,才可以更好地保護交易安全,維護雙方利益平衡,最大限度地實現(xiàn)法律的公平與正義。 至于如何完善我國的海上保險制度,筆者認(rèn)為,應(yīng)在我國《海商法》海上保險合同一章第一節(jié)中,加入有關(guān)最大誠信義務(wù)的原則性規(guī)定。當(dāng)然,只有原則性的規(guī)定還是不夠的,抽象的原則性規(guī)定應(yīng)當(dāng)具體化為合同雙方各自明確的權(quán)利、義務(wù)。同時,建議我國立法者于《海商法》修改時,能夠充分借鑒和吸收英國海上保險法中關(guān)于保證制度的規(guī)定,以充實我國相關(guān)的法律制度,使其更符合法理,更好地發(fā)揮指引當(dāng)事人的行為和有利司法的作用。健全保險相關(guān)法律法規(guī),加強監(jiān)管。
[Abstract]:The principle of good faith is a basic principle of civil law in China. As a civil act, both parties should be bound by this principle. The particularity of marine insurance activities and insurance contracts gives rise to the principle of maximum good faith. At present, there is no concept of the principle of maximum good faith in Chinese law. So, is the principle of maximum good faith in the 1906 Marine Insurance Law embodied in the law of our country? What is the connection and difference between the principle of maximum good faith and the principle of good faith in Chinese law? Is there any need to improve this aspect of our law? With these questions, the author discusses the following problems: the general situation and function of the basic principles of civil law, the origin and development of the principle of maximum good faith in marine insurance contracts, the basic problems of the principle of maximum good faith; The comparison of the contents of the principle of maximum good faith in Chinese and British laws, the deficiency of the content of the principle of maximum good faith in Chinese law and the prospect of legislation in the future. By referring to a large number of domestic and foreign scholars' works and foreign precedents, the author holds that the principle of maximum good faith is essentially the principle of good faith, the application and natural development of the principle of good faith in the system of marine insurance contracts. It not only applies to the conclusion of the marine insurance contract, but also to the conclusion of the marine insurance contract; it not only puts forward strict requirements on the information disclosure obligation of the insured (policy holder), but also imposes strict disclosure obligation on the insurer. While we are concerned about the strict requirements of this principle for the insured, we should never lose sight of its obligations to the insurer, because, in the actual practice of insurance, Some insurers often take advantage of their strong advantages and some insured lack of insurance knowledge or negligence and other reasons malicious cause the insured breach of contract in order to achieve the purpose of obtaining illegal benefits. In addition, limited legal texts cannot exhaust all aspects of the world of complex disputes. Therefore, the understanding of the principle of maximum good faith should not be limited to the specific contents of such as the obligation to inform, as stipulated by law, Both parties to an insurance contract should consciously abide by the principle of maximum good faith. Only in this way, the transaction security can be better protected, the interests of both sides can be maintained, and the fairness and justice of the law can be realized to the maximum extent. As to how to perfect the marine insurance system of our country, the author thinks that we should add the principle stipulation about the maximum good faith obligation in the first section of the chapter of maritime insurance contract of our country "Maritime Law". Of course, only the stipulation of principle is not enough, the abstract stipulation of principle should be concretely translated into the specific rights and obligations of both parties. At the same time, it is suggested that when the Maritime Law is amended, Chinese legislators can draw lessons from and absorb the provisions of the guarantee system in the British Maritime Insurance Law, so as to enrich the relevant legal system of our country and make it more in line with the legal principles. Better play the role of guiding the behavior of the parties and conducive to the administration of justice. Improve insurance related laws and regulations, strengthen supervision.
【學(xué)位授予單位】：上海海事大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D922.294
本文編號：2285115
[Abstract]:The principle of good faith is a basic principle of civil law in China. As a civil act, both parties should be bound by this principle. The particularity of marine insurance activities and insurance contracts gives rise to the principle of maximum good faith. At present, there is no concept of the principle of maximum good faith in Chinese law. So, is the principle of maximum good faith in the 1906 Marine Insurance Law embodied in the law of our country? What is the connection and difference between the principle of maximum good faith and the principle of good faith in Chinese law? Is there any need to improve this aspect of our law? With these questions, the author discusses the following problems: the general situation and function of the basic principles of civil law, the origin and development of the principle of maximum good faith in marine insurance contracts, the basic problems of the principle of maximum good faith; The comparison of the contents of the principle of maximum good faith in Chinese and British laws, the deficiency of the content of the principle of maximum good faith in Chinese law and the prospect of legislation in the future. By referring to a large number of domestic and foreign scholars' works and foreign precedents, the author holds that the principle of maximum good faith is essentially the principle of good faith, the application and natural development of the principle of good faith in the system of marine insurance contracts. It not only applies to the conclusion of the marine insurance contract, but also to the conclusion of the marine insurance contract; it not only puts forward strict requirements on the information disclosure obligation of the insured (policy holder), but also imposes strict disclosure obligation on the insurer. While we are concerned about the strict requirements of this principle for the insured, we should never lose sight of its obligations to the insurer, because, in the actual practice of insurance, Some insurers often take advantage of their strong advantages and some insured lack of insurance knowledge or negligence and other reasons malicious cause the insured breach of contract in order to achieve the purpose of obtaining illegal benefits. In addition, limited legal texts cannot exhaust all aspects of the world of complex disputes. Therefore, the understanding of the principle of maximum good faith should not be limited to the specific contents of such as the obligation to inform, as stipulated by law, Both parties to an insurance contract should consciously abide by the principle of maximum good faith. Only in this way, the transaction security can be better protected, the interests of both sides can be maintained, and the fairness and justice of the law can be realized to the maximum extent. As to how to perfect the marine insurance system of our country, the author thinks that we should add the principle stipulation about the maximum good faith obligation in the first section of the chapter of maritime insurance contract of our country "Maritime Law". Of course, only the stipulation of principle is not enough, the abstract stipulation of principle should be concretely translated into the specific rights and obligations of both parties. At the same time, it is suggested that when the Maritime Law is amended, Chinese legislators can draw lessons from and absorb the provisions of the guarantee system in the British Maritime Insurance Law, so as to enrich the relevant legal system of our country and make it more in line with the legal principles. Better play the role of guiding the behavior of the parties and conducive to the administration of justice. Improve insurance related laws and regulations, strengthen supervision.
【學(xué)位授予單位】：上海海事大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2007
【分類號】：D922.294
【引證文獻】
相關(guān)期刊論文 前1條
1 田麗萍;;淺論保險法的最大誠信原則[J];法制與社會;2012年03期
相關(guān)碩士學(xué)位論文 前2條
1 王曼;保險利益原則研究[D];大連海事大學(xué);2011年
2 邢小靜;保險人明確說明義務(wù)的界定[D];蘭州大學(xué);2012年
，本文編號：2285115
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