[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]
After the termination of the insurance contract, if the applicant applies for reinstatement, he shall still have the obligation to truthfully inform the insurance company of the inquiry, but only for the health condition between the conclusion of the insurance contract and the date of the application for reinstatement. The insurance company has the right not to pay the insurance premium if the insured has an insurance accident during the period of suspension of the insurance contract.
[basic case]
On April 24, 2014, Mr. Song signed an insurance contract with a Life Insurance Co., Ltd., which agreed that the applicant and the insured were Mr. Song, and the types of insurance covered were: a gold insurance Ankang two guarantee insurance (dividend type), a supplementary gold insurance Ankang multiple payment major disease insurance, and a supplementary anjianbao traffic accident injury insurance.
A certain additional multiple payment major disease insurance, Article 5 of the insurance contract stipulates: "if the insured becomes effective (or re effective) in this additional contract If, after 90 days from the date of diagnosis, the insured is initially diagnosed as suffering from a major disease as agreed in this additional contract and still alive when applying for claim settlement, we will pay the insured the first major disease insurance benefit according to the insured's major disease insurance amount at the time of diagnosis. The main contract is terminated and this contract is terminated. The insurance liability for minor and major diseases of this additional contract is terminated and the cash value is zero. " If the insured suffers from one or more of the major diseases agreed in this supplementary contract within 90 days from the effective date (or re effective date) of this contract, we will refund you the accumulated insurance premium paid for this supplementary contract and certain gold security and health insurance (dividend type), and this supplementary contract and the main contract will be terminated at the same time. "
On May 4, 2015, song failed to pay the insurance premium for the next year as agreed in the insurance contract. On October 19, 2015, song submitted the application for change of insurance contract to the insurance company to apply for the reinstatement of the main insurance and the additional insurance (long-term). On the same day, song filled in a health notice, and checked "no" in Item 4 "whether there were any of the following diseases or symptoms in the past: A. tumor, cyst, polyp, lymph node enlargement or skin and breast diseases". On September 15, 2015, song was hospitalized in the Sixth People's Hospital of Shenyang City for post hepatitis C cirrhosis. He was diagnosed with post hepatitis C cirrhosis, hepatocellular carcinoma NOS (c22.0) and diabetes. On September 29, 2015, song was hospitalized in the First Affiliated Hospital of China Medical University for liver tumor. He was diagnosed with hepatocellular carcinoma and chronic hepatitis C. On November 4, 2015, song was admitted to Tianjin first central hospital for treatment. On January 10, 2016, he underwent orthotopic liver transplantation. After song was discharged from hospital, he went to the insurance company to settle the claim. The insurance company thought that song had refused to pay compensation because he had not truthfully informed the insurance company of his illness before applying for insurance. The two parties had a dispute.
[judgment result]
1、 Liaoning Branch of a Life Insurance Co., Ltd. shall refund song's insurance premium of 19995.67 yuan within 15 days from the effective date of this judgment;
2、 Other claims of song were rejected. The case acceptance fee was 4300 yuan, which was borne by song.
[reasons for adjudication]
The court held that the insurance contract signed by song and a Life Insurance Co., Ltd. according to the insurance contract, after the first installment of insurance premium is paid, 60 days from the next day (including the day) after the expiration date of each insurance premium is the grace period for the payment of insurance premium. The first payment date between song and the insurance company was May 4, 2014. Therefore, the insurance contract between song and the insurance company has been suspended since July 4, 2015. On October 19, 2015, song applied to the insurance company for the reinstatement of the insurance contract and denied that he had ever suffered from cancer in the health notice. Song's behavior concealed the fact that he was diagnosed with hepatocellular carcinoma in September 2015. According to the provisions of Article 16 of the insurance law, when an insurance contract is concluded, the applicant shall truthfully inform the insurer about the subject matter of the insurance or the relevant information of the insured. If the applicant intentionally fails to fulfill the obligation of truthful disclosure, the insurer shall not bear the liability of compensation or payment of insurance benefits for the insured accidents occurring before the termination of the contract, and shall not refund the insurance premium. Therefore, the insurance company need not bear the insurance liability. During the trial, the insurance company agreed to refund all the insurance premiums of song in consideration of his actual difficulties and illness, so the court supported it.
[relevant provisions]
Insurance law of the people's Republic of China
Article 16 when an insurance contract is concluded, the applicant shall truthfully inform the insurer about the subject matter of the insurance or the relevant information of the insured.
If the applicant fails to fulfill the obligation of truthful disclosure as specified in the preceding paragraph intentionally or due to gross negligence, which is enough to affect the insurer's decision on whether to agree to underwrite or increase the insurance rate, the insurer has the right to terminate the contract.
The right to rescind the contract specified in the preceding paragraph shall be extinguished if it is not exercised within 30 days from the date when the insurer knows of the cause for rescission. If more than two years have elapsed since the establishment of the contract, the insurer shall not terminate the contract; In the event of an insured event, the insurer shall be liable for compensation or payment of the insurance benefits.
If the applicant intentionally fails to fulfill the obligation of truthful disclosure, the insurer shall not bear the liability of compensation or payment of insurance benefits for the insured accidents occurring before the termination of the contract, and shall not refund the insurance premium.
Where the applicant fails to fulfill 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 insurance premium.
The insurer shall not terminate the contract if the insurer has known that the applicant has not truthfully informed the insurer when the contract is concluded; In the event of an insured event, the insurer shall be liable for compensation or payment of the insurance benefits. An insured accident refers to an accident within the scope of insurance liability stipulated in the insurance contract.
Article 90 in the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the people's Republic of China, the parties shall provide evidence to prove the facts on which their claims are based or the facts on which they refute the claims of the other party, unless otherwise provided by law. If a party fails to provide evidence or the evidence is insufficient to prove his claim before the judgment is made, the party who bears the burden of proof shall bear the adverse consequences.
[lawyer's opinion]
If the applicant violates the obligation of truthful disclosure, the insurance company shall not pay the insurance premium. On May 4, 2014, Mr. Song applied for a gold insurance Ankang insurance, an additional gold insurance Ankang multiple payment major disease insurance and an additional anjianbao traffic accident insurance at a Life Insurance Co., Ltd. On May 4, 2015, Mr. Song failed to pay the insurance premium for the next year as agreed in the insurance contract, but still failed to pay the premium after being urged by a life insurance company. According to the insurance contract, after the first installment of insurance premium is paid, 60 days from (including) the next day of the due date of each insurance premium is the grace period for the payment of insurance premium. Therefore, the insurance contract between song and the insurance company has been suspended since July 4, 2015. In October 2015, song submitted an application for the reinstatement of the insurance contract to the insurance company, applying for the reinstatement of the main insurance and the additional insurance. While song applied for the reinstatement of the insurance contract, song filled in the health notice. The insurance company explicitly asked the applicant and the insured whether they had any diseases or symptoms such as tumor, cyst, hepatitis and liver cirrhosis in the past. Song filled in the health notice as No. However, according to the medical records of song in the Sixth People's Hospital of Shenyang and the First Affiliated Hospital of China Medical University, song was diagnosed with post hepatitis C cirrhosis, hepatocellular carcinoma and chronic hepatitis C on September 15, 2015 and September 29, 2015, respectively. Therefore, song began to know that he had cancer, liver cirrhosis and other diseases on September 15, 2015. According to Article 16 of the insurance law: "when an insurance contract is concluded, the insurer shall make inquiries about the subject matter of the insurance or the relevant information of the insured, and the applicant shall truthfully inform. If the applicant fails to fulfill the obligation of truthful disclosure as specified in the preceding paragraph intentionally or due to gross negligence, which is enough to affect the insurer's decision whether to agree to underwrite or increase the insurance rate, the insurer has the right to terminate the contract." It can be seen from the regulations that the applicant has the obligation to truthfully inform the insurer of the inquiry. When the applicant fails to fulfill the obligation to truthfully inform is enough to affect whether the insurer underwrites or increases the premium, the insurer has the right to terminate the contract. In this case, song was diagnosed with liver cirrhosis and hepatocellular carcinoma by the hospital during the period from the termination of the insurance contract to the reinstatement of the insurance contract, but the insurance company did not truthfully inform the insurance company of this situation when applying for the reinstatement of the insurance contract. The insurance company agreed to continue the reinstatement only when song cheated. Therefore, the insurance company has the right to terminate the insurance contract according to the provisions of the insurance law and the provisions of the insurance contract and does not pay the insurance benefits to song. The most important thing is, In the interpretation of Article 37 of the interpretation and application of the insurance contract chapter of the insurance law of the Supreme People's court, it has been clearly stated that the insurer shall not bear the insurance liability for the insured's insurance accidents that occur after the termination of the insurance contract and before the resumption of the insurance contract, and it has also been clearly stated that the applicant has the obligation to truthfully inform the insurance company of his / her health condition before applying for the resumption of the insurance contract. In addition, the Supreme People's court has made clear opinions on the impact of the reinstatement of the insurance contract on the applicant's obligation to truthfully inform in Article 8 of the provisions on the interpretation and application of the third judicial interpretation of the insurance law. In order to prevent "adverse selection", this opinion once again affirms that the insurance company has the right to require the insured to re inform the health condition when applying for reinstatement, The provisions of Article 16 of the insurance law shall apply to the failure to fulfill the obligation of truthful disclosure. Song was diagnosed with major disease within 90 days from the effective date of the insurance contract, and the insurance company should not pay the insurance money. According to Article 5, paragraph 1, major disease insurance benefits of a certain additional multiple payment major disease insurance insured by Mr. Song, "if the insured suffers from one or more of the major diseases agreed in this additional contract within 90 days from the effective (or re effective) date of this additional contract (including this date), we will return the premiums paid for this additional contract and a certain two guarantee insurance (dividend type), and this additional contract and the main contract will be terminated." It can be seen that when the insured and the insurance company agree that the insured suffers from the disease agreed in the contract within 90 days after the insurance contract is reinstated, the insurance contract will be terminated when the insurance company returns the paid insurance premium. Therefore, if song does not violate the obligation of truthful disclosure, the insurance company only needs to return the paid insurance premium of song without paying the insurance premium.