[introduction of the lawyer in this case] Wang Zhanping, senior partner of Liaoning Tongfang law firm, is good at legal management of insurance and wealth risk. Our clients are China Export Credit Insurance Corporation, Rongsheng Property Insurance Corporation, nearly 30 life insurance and property insurance Liaoning branches such as people's insurance, China Life Insurance, Ping An insurance, Taiping Insurance, Xinhua life insurance, and many insurance agent teams or insurance intermediary companies. We provide legal advice, legal advice, insurance contracts, insurance claims, insurance allocation of enterprises and individuals, due diligence, criminal cases involving insurance Litigation and non litigation legal services such as insurance fund utilization, insurance fund trust, Internet insurance, wealth inheritance, policy seizure, insurance recovery, litigation preservation, liability insurance risk review, Insurance Law Series training, etc.
[referee points]
The payer of the premium shall not be regarded as the applicant, and the applicant shall be determined based on the information of the applicant specified in the insurance contract. The significance of determining the applicant is to confirm whether to ask the applicant for health conditions and whether the clauses exempting the insurer's liability have been made clear to the applicant. According to the provisions of the Judicial Interpretation II of the insurance law, the insurer takes the prohibited provisions in laws and administrative regulations as the exemption reasons for the exemption clauses of the insurance contract. After the insurer makes a prompt for the clause, the applicant, the insured or the beneficiary claims that the clause is not effective on the ground that the insurer has not performed the obligation of clear explanation, and the people's court will not support it. Where the provisions of this article are applied to determine the effectiveness, It is also necessary to further find out whether the clause exempting the insurer's liability is applicable to Article 30 of the insurance law: "For an insurance contract concluded with the standard terms provided by the insurer, if the insurer and the applicant, the insured or the beneficiary have disputes over the terms of the contract, they shall be interpreted in accordance with the common understanding. If there are more than two interpretations of the terms of the contract, the people's court or arbitration institution shall make an interpretation in favor of the insured and the beneficiary", that is, the principle of unfavorable interpretation.
[basic case]
The plaintiff Xia is the wife of Tang and the plaintiff Tang is the son of Tang. Tang was an employee of Dandong Pharmaceutical Machinery Co., Ltd. In August 2017, the company insured a life insurance comprehensive accident insurance for its employees at the defendant's office with an electronic card form. Among them, Tang bought two copies of such insurance, both in card form. The premium is 100 yuan each, paid by the unit, and the insurance premium is 70000 yuan each. The name of the insured is Tang, and the beneficiary of the death is Tang's legal heir. In the insurance policy, it is suggested in bold font that the company shall not be liable for paying insurance benefits in case of death, disability or medical expenses of the insured due to one of the following circumstances: the seventh item refers to the insured driving after drinking, driving without a valid driving license or driving a motor vehicle without a valid driving license. When the company applied for insurance, the salesman of the defendant's insurance company explained the exemption clauses of the insurance company to the person in charge of a unit named Tang. Liu Yuzhi explained the exemption clauses to the employees many times in the company's general meeting. At about 7:00 on September 26, 2017, Tang died on the spot in a traffic accident while driving an electric bicycle. The electric bicycle was identified as a motor vehicle because it exceeded the standard. After the identification of the traffic police department, Tang, the insured, who did not obtain a motor vehicle driver's license in accordance with the law, drove a motor vehicle that was not registered with the public security organ on the road, and did not let a straight vehicle go first when turning, was equally responsible for the accident.
[judgment result]
The court of first instance held that the plaintiff's claim for the insurance company to pay the insurance benefits had no factual and legal basis, and the court of first instance did not support it.
The case was appealed to Dandong intermediate people's court by the plaintiff in the original trial. The court of second instance held that a life insurance company should pay accident injury insurance benefits in accordance with the insurance terms, totaling 140000 yuan.
[reasons for adjudication]
The court of first instance held that although the registered applicant of the insurance contract involved in this case was Tang, the insurance company that entered into the contract with the defendant and paid the premium was Dandong Pharmaceutical Machinery Co., Ltd., the unit to which Tang belonged, so the company was the actual applicant of the contract and Tang was the insured. The behavior of the insured Tang Mou driving an unlicensed motor vehicle on the road violates the relevant provisions of the road traffic safety law. The insurance company has made a special prompt in the insurance certificate for this exemption, and has fulfilled the obligation of explanation to the applicant Dandong Pharmaceutical Machinery Co., Ltd. according to the contract and legal provisions, it can be exempted from the responsibility of paying insurance benefits.
The court of second instance held that in this case, the three Appellants stated in the inquiry of the activation card policy provided in the second instance that the applicant of the insurance involved in the case was Tang, so a life insurance company should perform the obligation of presentation to the applicant Tang when signing the contract. On the other hand, Dandong Branch of a certain life insurance company of the appellee, knowing that the insured involved in the case could only be natural persons, did not provide sufficient evidence to prove that when the insurance contract was concluded, it made a prompt to the applicant, Mr. Tang, about the clauses in the insurance contract exempting the insurer's liability sufficient to attract the attention of the applicant. Therefore, the insurance clause shall not be effective.
[relevant provisions]
Article 17 of the insurance law of the people's Republic of China stipulates that if the standard terms provided by the insurer are adopted in the conclusion of an insurance contract, the insurance policy provided by the insurer to the applicant shall be attached with the standard terms, and the insurer shall explain the contents of the contract to the applicant. With respect to the clauses in the insurance contract that exempt the insurer from liability, the insurer shall, when concluding the contract, make a prompt sufficient to attract the attention of the applicant on the application form, insurance policy or other insurance certificates, and make a clear explanation to the applicant in written or oral form of the contents of the clauses; In the absence of prompt or explicit explanation, this clause shall not be effective.
Article 30 of the insurance law of the people's Republic of China stipulates that "for an insurance contract concluded with the standard terms provided by the insurer, if the insurer and the applicant, the insured or the beneficiary have disputes over the terms of the contract, they shall be interpreted in accordance with the common understanding. If there are more than two interpretations of the terms of the contract, the people's court or arbitration institution shall make an interpretation in favor of the insured and the beneficiary".
[lawyer's opinion]
The court of first instance held that although the registered applicant of the insurance contract involved in this case was Tang, the insurance company that entered into the contract with the defendant and paid the premium was Dandong Pharmaceutical Machinery Co., Ltd., the unit to which Tang belonged, so the company was the actual applicant of the contract. It further held that the insurer had made a prompt and clear explanation to the applicant on the exemption clauses. The author believes that the fact finding is wrong, and the determination of the applicant should be based on the application form. In addition, the third judicial interpretation of the insurance law stipulates that the applicant can entrust a third party to pay the premium on behalf of the applicant. Therefore, the applicant may not be the person who actually pays the premium, but the applicant specified in the application form. In this case, it is not group accident insurance, but an electronic card one-way insurance contract. The electronic card one-way insurance contract requires each applicant or the agent of the applicant to apply online separately. The insurer inquires the applicant about the health condition on the Internet, and gives a prompt and clear explanation to the applicant on the exemption clauses. In this case, although the insurance premium is paid by the employer, it cannot be determined that the applicant is the employer, The employer shall be the agent of the applicant, and the applicant shall bear the consequences arising from the insurance behavior of the agent when applying for insurance. The non insurance company did not ask the applicant and did not give a prompt and clear explanation on the exemption clauses. Obviously, there are flaws in the trial ideas of the first and second trials.
In addition, the reasons for the judgment of the court of second instance did not involve the interpretation of the insurance clauses involved in this case. According to the cognition of ordinary people, the electric vehicle can not be registered, and can not objectively obtain the motor vehicle number plate and license plate, but can still be driven on the road. Although the electric vehicle in this case has been identified as a motor vehicle, there is a dispute over whether it belongs to the motor vehicle agreed in the terms of the insurance contract. According to the cases in the bulletin of the Supreme People's court - Cao Liancheng, Hu Guilan Cao Xinjian and Cao Xianzhong v. Minsheng Life Insurance Co., Ltd. Jiangsu branch insurance contract dispute case, Summary of judgment of the case: according to Article 30 of the insurance law, "in the case of an insurance contract concluded with the standard terms provided by the insurer, if the insurer and the applicant, the insured or the beneficiary have disputes over the terms of the contract, they shall be interpreted in accordance with the common understanding. If there are more than two interpretations of the contract terms, the people's court or arbitration institution shall make an interpretation in favor of the insured and the beneficiary".
In the absence of provisions on the identification standard of motor vehicles in the insurer's liability exemption clause and the interpretation of the insurance clause, based on the misleading of the product manual and the product inspection certificate of the moped manufacturer (both showing that the vehicle is a moped), and the fact that the insured is unable to obtain the motor vehicle number plate objectively, the insurer makes an explanation that the vehicle involved in the case does not belong to the motor vehicle specified in the insurer's liability exemption clause, If it meets the cognitive standard of an ordinary vehicle buyer and user, it shall be explained in favor of the insured. The vehicle involved in the case shall be deemed not to be a motor vehicle specified in the insurer's exemption clause. At this time, if the insured drives the above vehicle without a driver's license, it does not belong to driving without a license as stipulated in the exemption clause. " Similar to this case, although China is not a case law country, the communique case of the Supreme Court represents the mainstream judicial view of the Supreme Court and has important guiding significance for the trial practice.
As for the above-mentioned interpretation principle, there are still cases of misreading the insurance law in judicial practice. The situation of this case belongs to the "adverse interpretation principle" stipulated in Article 30 of the insurance law, but not all clauses apply to this principle. Only when there are two or more reasonable interpretations of the disputed clauses can it be applied. However, some judges believe that as long as there are two or more interpretations, whether they are reasonable or not, Nor does it simply apply the unfavorable interpretation principle in accordance with the interpretation principle stipulated in the contract law, causing the people's court to arbitrarily interpret the terms of the insurance contract and seriously damaging the insurance market and the principle of fairness.
At present, the accident insurance exemption clauses of all insurance companies include such contents as "driving without a license and driving without a license". If an insurance company sets an electric bicycle that exceeds the standard and is identified as a motor vehicle as an exemption clause of the insurer's liability, it should clearly explain in this clause, otherwise it will easily cause ambiguity, which will lead to the people's court applying the principle of "adverse interpretation".