WU Qing Bao negative interpretation of the principle of insurance contract

 On the negative insurance contract interpretation principle
WU Qing Bao Supreme
upload time :2007-9-11
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font size: medium and small for the concept of contract interpretation, Civil Law sector have a different understanding. Some scholars claim interpretation of the contract is a contract, understand the meaning of the content and discussion. This view is a broad understanding of contract interpretation made will be subject to any interpretation of the contract are included. There The scholars believe that the contract interpretation cases handled specifically refers to the court or arbitral tribunal according to its terms of reference the provisions of the contract with the textual meaning by the correct understanding (1); while scholars believe that accepting the contract specifically refers to contract interpretation disputes, the court or arbitration agencies, to reasonably determine the content of the contract between the parties, according to information on the meaning of contract and its binding by the analysis and explanation (2). This view than the aforementioned second point of view, the object in respect to contract interpretation wide because the purpose of contract interpretation is to identify the contents of the contract, so any information relevant to the content with the contract (including contract language, the parties entered into a contract action and the surrounding circumstances, etc.) and are reflected in the meaning, can become the object of contract interpretation, we believe that this view is justified. judicial practice, the insurance will begin to appear in specific cases, the meaning of specific provisions for contract interpretation and understanding of the provisions in conflict on how to establish principles of interpretation must be studied and resolved has become a major issue.
an insurance contract interpretation and the interpretation of insurance contracts standard
basic method used for the text of the contract is not limited to words and to explore ways the real intentions of the parties. on the contract interpretation of standards, there is the traditional meaning of that and said that two views. means that advocated the interpretation of the contract the parties should be subject to the subjective meaning, not rigidly adhere to the text. legislation civil law countries that use more meaning . for example, as the standard, not the parties to explain their meaning. This kind of clear that the standard of interpretation, focusing on the contract terms of the motion, the words and expressions, rather than exploring the true meaning of the parties, that is the true meaning of that. said that from the beginning to In common law countries dominate. Just as some scholars said: the end of classical contract law, although in some of the judges, between the agreement for contract law, consent, meaning that almost all of the problems still exist in public hh serious debate on these issues but the law can be said that the objective approach to establishing indisputable.
But with the development of capitalism, social conditions and economic conditions have greatly changed, Two Legal communication has become increasingly close, the strict meaning of that and said that a hit. civil law countries, paying attention to objective standards of contract interpretation, such as principle and the habit of considering transactions (German Civil Code Article 133 and 157 of the Ordinance). China's sentence. How to search for the real intention of the parties entered into an insurance contract can be attributed to the intention of interpretation. intent explained that the refers to the terms of the insurance contract dispute, the contracting parties to the contract time by judging the true common intention, to clarify the contents of the insurance contract . intended interpretation is the basic method of interpretation of contract. intention to seek explanation is that the insured and the insurer's true intentions, the real intention of the parties should first of the insurance through an insurance contract or other written forms of words to be determined. Anglo-American courts generally agreed that When the insurance contract or the express terms of clear or unambiguous terms, only through the use of language to explain the contract, the intent of the parties; even clear intention of the parties, the court can not go beyond the scope of the contract clear interpretation of contract language used to change the contents of the contract . In short, if the clear language of the insurance contract, must be semantic interpretation can not be interpreted as intended to excuse any speculation on the insurance contract and distort the true intentions of the parties. and in common law countries, jurisprudence and doctrine, in strict accordance with the contract The syntax of the text the idea of the meaning of the Contract is the dominance of the original has been lost, the parties intended to explore the theory of increasing attention.
In China, the legislation still on the lack of contract interpretation. In theorists, scholars have generally advocated the contract should be interpreted Objective and subjective criteria by way of combination, which is consistent with the development direction of contract interpretation. Because the contract is consistent with both parties said the agreement means, in the interpretation that if the subject simply to the objective, then the denial of the parties meaning of freedom. Meanwhile, the meaning of the parties, after all, through their behavior, and left the party that can not be sure of its true meaning, therefore, if the completely subjective standard, meaning it lost prescriptive. aforementioned two legal systems the development of standards for contract interpretation is the well-documented changes (3).
insurance contract should reflect the contents of the insured and the insurer's true intentions. explain insurance contract, the parties should respect the conclusion of the true intentions of the insurance contract. the real intention of the parties, under normal circumstances can be reflected in the terms of the insurance contract, but in some cases, the terms of the insurance contract can not reflect the true intentions of the parties, then we must through the intention of the parties explained that reveal the terms of insurance contracts the true meaning. the use of intent to explain, according to the terms of the language used insurance contract, the contracting, the context of the objective situation and the contracting parties to future events when a combination of factors may determine, suggesting that the contracting parties to the terms used true intentions. the intention of the parties, in fact, dominated the interpretation of insurance contracts. If you can find a clear intention of the parties, then the insurance contract, regardless of how inappropriate the terminology used, the syntax is wrong or inaccurate, the court or arbitration organizations are can be explained by the intention of the parties contract terms (4).
by the following specific intent interpretation can be achieved interpretation:
(a) semantic interpretation
semantic interpretation, also known as the literal interpretation is terms of the contract pursuant to the terms of the insurance context and its unique, specific or general use, to clarify the contents of the insurance contract. insurance contract language used to express the language of the intention of the parties, unless there is good reason for that Insurance contract language text context can not represent the party the true meaning. literal interpretation methods of explanatory insurance contract terms of the basic method. insurance contracts the terms of the language of the constitution, want to grasp or understand the insurance terms of significance must first understand its use of words meaning, so explain insurance contract, you must first be defined as explained. the use of literal interpretation, should respect the insurance contract terms of the expressions used context, if the contract terms of the language used there is no ambiguity, not allowed to expand or shrink by interpreting an insurance contract may be used in the context expressions. Of course, the context used by the insurance contract is clear, also need to judge, to determine whether the language used in the insurance contract dispute, must be a legal or insurance industry who is not trained to consider the position. the English courts of long-term practical experience that the language used in the basic, natural, ordinary and generally be understood semantics. the policy language used in the meaning of intelligence is a commonly understood meaning of ordinary people, ordinary people should use the language of the United Kingdom explain their understanding of the meaning of the content.
the context of insurance contract interpretation, at least it should be noted: the insurance contract, the language used, it should be according to their semantic interpretation of a popular, not limited to the insurance contract terms of philosophical or scientific semantics; unless there is strong reason to be explained, the language of insurance contracts should be according to their semantic or natural surface semantic interpretation. However, the insurance contract or other legal term used in specific terms, it should be in accordance with the specific meaning of the term interpretation. For example, insurance policies used by the br> insurance contract language is unclear or understand the meaning of different, give rise to the interpretation of insurance contracts is usually necessary cause. In addition, the terms of the insurance contract between the conflict also led to explain insurance contract. For example, Format insurance policy, the policyholder can choose to increase or decrease the insurer has proposed the terms of the insurer or affixed through the comments or additional provisions to increase or reduce its content, format, policy terms of increase or decrease, in accordance with the insurance practice, the endorsement , affixed or attached to the original terms and provisions of insurance contracts have the same effect, it will inevitably conflict in terms of the insurance contract occurs. In this case, because the terms of the insurance contract or endorsement affixed to the conflict, a handwritten or typewritten Comments superior printing comments, annotations than typing affixed to the terms of the basic terms than the terms affixed, marginal notes attached superior to the body of additional, explicit provisions prevail, then the literal interpretation. It is because the insurance terms of the contract because of an inconsistency or conflict in a variety of reasons, we should have the general methods to explain the terms of the insurance contract, conflicts, and perhaps the English courts for the following judicial practice of courts in similar cases will be inspired.
of the English courts decisions that conflict with the terms of insurance contracts, three ways you can explain insurance terms of the contract: 1. insurance policy should be as detrimental to the insurer's interpretation; 2. insurance contracts written or printed terms and provisions of any form of typing conflict, the terms written terms than typing, typing, printing terms than the terms; 3. if the contract constituted by a number of documents which conflict, in time than the time, according to a document after the document according to the former.
on the interpretation of insurance contracts, the parties should respect the true meaning of the contract, the specific practice, ① When the contents of a written agreement is inconsistent with the oral agreement should be written as the norm; ② When the insurance policy or other contractual provisions of the document content and policy inconsistent specified, should be specified in an insurance policy as the norm; ③ in the insurance policy if the special terms inconsistent with other provisions, should be subject to special provisions; ④ When the content of insurance contracts in different ways records and the contents of conflict, the typing is better than print, handwritten is better than typing. because, generally considered better able to express the content of hand the true meaning of the parties.
the language of the insurance contract interpretation should generally be ordinary textual meaning by itself, to explain, but it has a special meaning for some of the motion shall be referred to the relevant regulations and insurance habits, when the line of uniform interpretation. For example, in the insurance contract Debt Law for the is not generally known as the in this standard can not be interpreted as a storm.
(b) of the insurance contract context Jieshi
the terminology used, its meaning is often constrained by the context, in the event of a dispute, should be adopted to the context of the insurance contract reasonable discretion to determine its meaning and to infer the intention of the parties. explain insurance by the terms of the context, a similar interpretation and restrictive interpretation. insurance contract items listed in the same class, immediately after the matters listed in the meaning expressed by the term , when referring to the same type of matter rather than other types of matters; through this analogy that the insurance contract, the meaning of the terms used, called the same explanation. For example, the Chinese People's Insurance Company ; gold, silver, jewelry, jade, jewelry, antiques, old books, paintings, stamps, artwork, precious metals and other property similar articles, except for non-similar precious items. restrictive interpretation, is the restrictive language of insurance contracts in general terms immediately after the summary of the previous term shall not in accordance with its interpretation of the meaning of the original, should be subject to the terms used in the post limitations and restrictions in accordance with the method of interpretation.
(c) supplementary explanation
supplementary explanation, is the use of insurance contracts other than the language used evaluation tools, the content of the lack of a contract of insurance made to reflect the parties its interpretation. in the insurance contract is missing or incomplete, the intention of the parties is also difficult to determine, through the mandatory provisions of law or any legal norms with the insurer or its agent of the act or course of dealing , business practices, customs, international practice and the principle of good faith or equitable principles to supplement the interpretation of insurance contracts in order to locate and identify the real intentions of the parties.
supplementary insurance contract interpretation, it should take: 1, mandatory provisions of law shall be in accordance with law shall be construed .2 insurance contract, the law is not mandatory, it should be any norms with the law, the insurer or its agents act or course of dealing, business practices, international practice and the principle of good faith or the principle of fairness and so on, there is a lack of insurance contracts to supplement the content, so the insurance contract are clear and complete.
conducting supplementary explanation, it should be presumed the parties intended to enter into a legally binding insurance contract, the parties entered into insurance contracts to explore The purpose and terms of the insurance contract as a whole and in part linked to measure, with the laws, customs, conduct of the parties and other factors, pragmatic, reasonable and impartial manner explain insurance contracts (5). but it should be noted, only the law expressly provided, be called peremptory norms; A party to determine their terms of trade advantage, can not be called peremptory norms.
Second, insurance contracts and unfavorable general principles of interpretation principles of interpretation of the contact
For the parties to conclude an insurance contract disputes, how to interpret the related insurance contract terms, you should first consider the general principles of contract interpretation apply. the general principles of contract interpretation for the intended interpretation of the Contract is the main text of the general approach explains, context interpretation, supplementary explanations. the general principles of contract interpretation applicable to explain insurance contract dispute, meaning that the parties should be respected and respect the language of the parties choose to use and can not arbitrarily expanded or reduced by interpreting the contents of the insurance contract. < br> However, our current law does not provide the basic general principles of contract interpretation and methods, such as 1986, China promulgated the Terms party's explanation. before the layer of so-called ;. because the terms of the contract form is a party to unilaterally enacted by the operator, or consumer without first seeking the views of each other. law requires operators to contract terms in determining the format should follow the principle of equity, and try to make the meaning clear. Once the terms of the contract format meaning is not clear, there are two or more explanation, you should adopt the format in which the provision of the adverse party to the interpretation of contract terms to ensure that the interests of the consumer side. For contracts, commercial advertising, coupons, coupons, and shop notices, etc , belonging to standard contract terms, if there are two or more explanations, the court shall be adopted by a party which is not conducive to the interpretation of the operators. It is remarkable, provisions, does not allow the parties to agree to exclude its application. Therefore, the operators in the contracts, commercial advertising, coupons, coupons, and shop notices in the final interpretation of the provisions of the so-called, for violation of mandatory provisions, is invalid. This principle is also applicable for the insurance contract.
1995 in China promulgated the controversial provisions, especially since the terms of insurance contracts which need to explain the discrepancy terms of the contract, the general format to follow and apply the contract on the negative principle of interpretation. The so-called negative principles of interpretation, is the insurer and the insured, the insured or the beneficiary the contents of the insurance contract disputes, insurance contracts should be used in terms of content or meaning of the text, have the benefit of the insured to the detriment of the insurer's explanation. of the insurer and the insured, the insured or the beneficiary of dispute, the people's court or arbitration organizations shall have the benefit of the insured and the beneficiary's explanation. discrepancy, in the end the principles of interpretation of the how bad? This is our current requirements under the legal theory, and issues raised specific cases, to consider the major theoretical and practical issues.
should be noted that the principles of interpretation is only negative for the interpretation of ambiguous provisions of the insurance contract or a way to provide a means in itself and can not replace the general principles of contract interpretation, not absolute, we can not rule out the general principles of interpretation of contract or the method used to make any contract of insurance is not conducive to the insurer's explanation. Thus, the contents of the insurance contract dispute, should be explained against the insurer; However, the principles of interpretation should be adversely the general principles of contract interpretation and the basic method is based, and can only be applied to semantics used in the insurance contract language is unclear or have multiple meanings (collectively referred to as ambiguous) in the case. Some scholars believe that to explain the principles of insurance contract or a number of methods, all methods for the interpretation of the contract applicable to have the same value, but , if the contract language discrepancy, for the insurers, the most practical and important one of contract interpretation principles of interpretation is probably bad.
Thus, when the insurance contract language semantics clear, the parties entered into an insurance contract clear intent and content of the law already provides insurance contracts, although the content of insurance contracts the parties in dispute and can not use negative principles of interpretation. adverse application of principles of interpretation, not isolated, it should consider the establishment of the insurance contract, the parties contract language used by the environment, intention, behavior and other factors, while the content of insurance contracts for the overall evaluation of the contract. That is, negative interpretation of the principles and other principles and methods of interpretation of contracts is an organic combination, they jointly charged with explain insurance terms of the contract dispute mission. correct application of the principles of interpretation adversely the purpose of insurance, or dispute the terms of the contract fair and reasonable explanation, to protect the insured (the insured) and the interests of both insurers. In short, the terms of the insurance contract discrepancy or dispute, the use of unfavorable contract interpretation principles of interpretation should be based on the basic method.
Third, the adverse insurance contract principles of interpretation applicable
the terms of the insurance contract when the dispute arises, there necessary for the principle of negative interpretation. Usually the terms of the insurance contract dispute, means the parties to the insurance contract language used by the different understanding of the meaning or understanding, or in accordance with social values, the insurance contract language used in the meaning is not clear or have two or more interpretations. apply the principles of interpretation unfavorable, that is negative against the insurer's explanation of the insured for a favorable interpretation. on the disputed terms of insurance contracts for negative interpretation, because the insurance contract is a contract of adhesion , whether the application form, or the special provisions of insurance by the insured person most of the development, in the formulation, there are bound deliberate, repeated scrutiny, more content to their advantage, and the format has been largely achieved. format of the insurance contract by the insurer preparation system, rarely reflect the insured, the insured or the beneficiary of the meaning of the insured in the insurance contract, generally can only be accepted or not accepted the terms of the insurer intends to. Moreover, the insurance contract format is also contract terms to achieve a professional, non-insurance contract terms used in ordinary people can understand, which is objectively beneficial interests of the insured. Therefore, once the contract is in dispute and both parties, the insured will be at a disadvantage. In order to protect the insured or the beneficiary's interests, countries in the long term insurance business had a negative interpretation of the principle of accumulation and development, to show the insured or beneficiary of relief. in the format of the insurance contract, the terms of the occurrence of a variety of context is unclear or interpretation, should be not conducive to the insurer's explanation: as against the insurer's explanation, in fact, have the benefit of the insured's explanation. China's people and the insured, the insured or the beneficiary of dispute, the people's court or arbitration shall make a decision favorable to the insured and the beneficiary's explanation. is consistent with international practice. It was insured and the beneficiary for the (weak economy) to maintain the interests of great significance.
the terms of the insurance contract context is unclear, should have the benefit of the insured explanation, but not explain insurance contracts with the basic principles of conflicts that explain insurance contract shall explore the true meaning of the parties. the principles of interpretation are not adverse to other principles of interpretation and use, only apply to the insurance contract is ambiguous and not the intent of the parties resulting from specific occasion, that only in the application of other principles of interpretation can not obtain the correct interpretation of the case against the insurer would apply the principles of interpretation. If the insurance policy language clear, clear and unambiguous, indicating a clear intention of the parties, did not explain the insurance terms of the contract scope, can not be insured against the semantic interpretation of the principles of interpretation is more negative can not be used to distort the language of insurance contracts. Similarly, if the contract with the terms of the context is unclear, but the interpretation of the parties to be excluded , there is no room for negative interpretation of the principle; Furthermore, if the intention of the parties can be confirmed by other means, can not apply the principles of interpretation to rule out the adverse party next diagram. In addition to the above, if the contract terms by the judicial interpretation has been clear and unambiguous (such as our hospital on the The Court explained by different about the correct meaning of the term, the parties expressed the intention and the resulting effect, there is conflicting conclusions, that the language of the insurance contract there is ambiguity, the principles of interpretation can be applied to negative. However, there are the following exceptions:
First, assume that the insured person is not envisaged by the law of the weak economy, but a has a huge market share, and full of business management enterprise, then the negative interpretation of the design principles of the law lost the basis of protecting the weak, the insurance contract dispute the terms really happened, but also can continue to have the benefit of the insured person's interpretation? The U.S. court's decision to establish the following principle: if the Insured is not a natural person, but a large and experienced businessmen, and commissioned a consultant, as the standard of the insurance company's professional advisers as the company can not apply the principle of negative interpretation. It has been revealed to us, should also be considered as one of our .
Second, based on the same grounds, then the terms of the insurance contract dispute, because the parties are the insurance company franchise insurance business of reinsurance terms and conditions of the contract should have a full sense, can not be applied to explain the adverse principle. This is in fact taking into account the profound understanding of insurance terms the different levels, established a more realistic one for the standard principles (6).
Third, the adverse principles of interpretation can be applied to the National Insurance Administration authority for approval and release of basic insurance terms? modern insurance industry, product development for hundreds of years of experience in insurance terms, has been fully implemented the terms of insurance contracts and increasingly unified format. In particular, the primary insurance for commercial insurance, national insurance management authorities supervise the insurance industry based on its dominant position, the basic insurance policy can achieve the unity in the country in order to effectively regulate the insurance activities and maintain the interests of the insured and beneficiaries. For the basic insurance policy or the terms of the occurrence of statutory insurance ambiguity, it should be how to explain, can not be considered. the basic language used by the insurance provisions of any discrepancy, the United States courts in the application of the principles of interpretation with different attitudes: one view, the basic insurance policy discrepancy, not the existence of insurance have the benefit of the insurer or the insured for the reasons explained, and the bad principles of interpretation does not apply to the provisions of the law has been the interpretation of the basic insurance provisions; insurance contract language used by the insurance administration approved in accordance with the law, there is no applicable room for negative interpretation of the principle. Another view was that the insurer in its own level of awareness and interest of the insurance contract system in the preparation of basic insurance terms will be inserted into the insurance contract was a contract of insurance the insurer can not make any preparation system things, and in contracting, it is difficult fully aware of the nature and content of insurance contracts, therefore, the basic insurance policy is ambiguous, it should have the benefit of the insured to the detriment of the insurer's explanation.
comprehensive theory of the Insurance Law and principles of interpretation of the adverse, far as I know, our cases have occurred are: coverage after the insured person suffering from postpartum depression two years led to mental disorder, mental disorders and diving death; analyze the cause of death was insured with diseases, mental disorders, loss of self-control and the occurrence of fatal outcome; based on In addition, the insurance company does not undertake to pay the insurance money. second paragraph: the death of the conditions for the payment of insurance contracts, since its establishment two years after the date, if the insured commits suicide, the insurer paid in the contract insurance. From the legislative intent point of view, provides that ; suicide died not from their own subjective intent, but because the patients mental disorders, loss of control, not the usual control over their behavior. When the situation does not meet the insurance law that are specifically suicidal. The parties in the case of contracts entered into by the insurance company The format of making a unilateral contract, under the requirements also shall apply. Therefore, legislative intent, starting from the principle of good faith, under the law of the format of the relevant provisions of the contract, the case does not have shall be paid by the beneficiary insurance contract.
present, China on insurance law cases and research very little, yet the need for further research. in accordance with China's The basic insurance terms insurance, the financial supervision and management departments to draw. the basic insurance policy is applied to the major commercial insurance insurance insurance terms; major types of commercial insurance, approved by the financial supervision and management departments; where approved for financial supervision and management of commercial insurance major types of insurance, financial supervision and management departments should establish the basic policy provisions. State's basic insurance terms, insurance companies should be implemented. We believe that the basic insurance policy is different from the insured person's insurance policy prepared in advance, regardless of whether the insurer to ; insert disputes should be managed by the national insurance agency, or in the event of proceedings by the judiciary, in accordance with law, the basic insurance policy language used to develop the basic purpose of insurance terms to make a fair interpretation of the principles of interpretation should not apply to negative. < br> Note:
(1) Press, 1992, p. 248;
(3) Xu Weidong Land to live, Wang Jian Zhao a, , People's Court Press, p. 211;
(5) Zou Hailin, Chang Min book,