从保险法角度看民法与商法的关系On the relationship between civilWord文档下载推荐.docx

1、A system in the community to ensure economic stability. It is important for modern society to disperse risks, prevent disaster victims from falling and promote social welfareMeasures. Legally, insurance is the agreement between the parties concerned that one party pays the premium to the other party

2、, and the other party gives the loss to the particular accident or specific eventThe act of compensating or paying. By means of insurance, the method of dispersing risks and transferring risks can achieve the stability of social order and social welfareTherefore, insurance is an indispensable system

3、 in modern society.（a）Generally speaking, in the commercial laws of Japan and other countries, insurance acts are defined as commercial acts, and Chinas insurance law basically acknowledges this kind of behaviorPoint of view, so that when engaged in insurance behavior, according to the principles an

4、d principles of commercial law, mainly reflected in the following points:1., the insurance industry emphasizes the principle of profit. In our country （Insurance Law） insurance refers to commercial insurance, not social insurance. Commercial insurance isThe basic commercial behavior of profit is emb

5、odied in the design of the specific system, and the insurer must decide whether or not to insure the case according to the information given by the insuredFor major disaster accidents （such as earthquakes, etc.） generally do not underwrite; according to the law of large numbers, accurate calculation

6、 of insurance premiums and so on. These measures are for profitAnd maintain the unique system of insurance, the existence of the design.2., insurance behavior is characterized by rapidity. A large number of insurance contracts take place, so that the insurer must do as much as possible within a shor

7、t period of timeAfter repeated transactions, the profit-making purpose can be realized. For this reason, the insurance law sets up various systems to ensure the simple and rapid establishment of transaction relations, such as:Article sixty-eighth of the insurance law stipulates that when the applica

8、nt terminates the contract, the insurer shall refund the cash value or deduction of the policy within 30 days after receipt of the notice of rescissionIn addition to handling fees, refund of insurance premiums; the twenty-third stipulates that the insurer received the payment of insurance claims, an

9、d the insured person, the beneficiary reached the relevant compensationAfter the payment of the agreement, the performance of obligations within ten days. At the same time, in order to facilitate the transaction, the insurance industry widely used format contracts, insurance provisions in advanceDra

10、w up. The above measures, such as the adoption of the short-term elimination prescription, the limitation of the trading time, and the formalization of the transaction form and the object, are all reflectedRapidity characteristic.3., insurance industry embodies the principle of legalization of enter

11、prise form. In our country, the applicant may be a natural person, a legal person, a non legal person organization and so onThe insurer shall only be an insurance company established according to law, and no other unit or individual may engage in commercial insurance business （fifth articles of the

12、insurance law）As determined by the unique mode of trading in the insurance business, the Limited by Share Ltd and solely state-owned companies established according to law are advantageous to the ownership and management right of the enterpriseSeparate, easy to raise funds, more stability.4., the in

13、surance industry embodies the principles of enterprise maintenance. The purpose of insurance is to make profits, and the method is to spread the risks for the insured, and the insurerThey are also faced with problems such as underwriting losses and making them difficult to sustain. The reinsurance s

14、ystem has been established in the insurance law, that is, the original insuranceThe insurer risks his own risks by insuring against the risks he has covered, and then insuring other insurers against themA portion of it to other insurers is conducive to the maintenance of enterprises.To sum up, the s

15、pecific system design of insurance law embodies the principles and spirit of commercial law in many ways, and the insurance law is the special law of commercial law.（two）At present, there are still some difficult arguments in insurance theory and practice, such as the distribution of the rights and

16、obligations between the insured and the insurer,The validity of the exemption clause made by the insurer and the attribution of the burden of proof in the personal injury insurance, etc. when 0 people consider these problems, they will notThe consequences attributable to the insurer, the insurer bec

17、ause of wealth, according to the civil law principle of fairness and good faith should pay more attention to the protection of the weak againstPeople, this way of allocating adverse consequences, appears to be in line with peoples thinking habits, and conform to the requirements of social justice, b

18、ut I think a great dealThis is irrational subjective imputation, which is not conducive to the development of the insurance industry. And, on the other hand, this situation reflects the use of commercial law as the peopleThe Theoretical Contradictions of the special law are now analysed as follows:T

19、he traditional commercial law regards the commercial law as the special law of civil law. There is no commercial code in the form of commercial code in the country of civil and commercial unificationIn order to make up for the lack of adjustment of civil law, there are formal commercial codes in the

20、 countries of separation of civil and commercial law, but commercial law is often regarded as the peopleSpecial law. The so-called special law refers to non universal law, so only the local regulations, law or personal law and private law act including（Oxford Dictionary of law） obviously, special la

21、w applies only to specific periods, specific regions, and to specific objects, but from the analogy of insurance law and Commercial LawForty-oneThe relation between law and civil law can find the contradiction of using commercial law as the special law of civil law. Insurance law is not universally

22、applicable. It is only for commercial enterprisesThe insurance law is the special law of commercial law, and the commercial law is different from the object of civil law, and the commercial law adjusts the commercialThe relationship between organization and commercial transactions, while civil law r

23、egulates property relations and personal relations between equal subjects, and commercial law applies to all periods and a wide range of areasNot for a particular period or region. It can be seen that commercial law is not the special law of civil law. Traditional society was based on simple commodi

24、ty production,Therefore, the relationship between people is often equal property relations or personal relations; and in the modern market economy, commercial relations have in fact beenDivorced from the traditional dependence on family, personal and property relations, and independently developed i

25、nto market trading relationship, that is, commercial law is not the special law of civil law.The theory of denying commercial law as the special law of civil law is of great significance to the measurement of insurance legislation and specific system:First, if we regard commercial law as the special

26、 law of civil law, we should consider the commercial laws profitability and rapidity in the process of insurance legislation and judicatureThe principle of civil law should also consider the fairness of the civil law and the principle of good faith. Sometimes, it will bring unnecessary burden to the

27、 insurance industry and increase the cost of legislation and judicatureAnd in fact, the principles of civil law can not be applied in commercial law. For example, the civil law stresses equality, equivalence, compensation and other principles, but in the insurance lawAlthough the insurance contract

28、is signed on the basis of voluntariness, the parties to the insurance contract are not equal, and their rights and obligations are not equalObligations are often established in accordance with the requirements of commercial activities, not in accordance with civil law. The civil law pays equal atten

29、tion to compensation, while the insurance law covers policyholdersIt is not equivalent paid, the insured pays premiums, it will spread the risk of society, although for society as a whole, the formation of a balance, but on the rightThe applicant is not equivalent to the individual.Second, the comme

30、rcial law is a special law of civil law, which confuses the relationship between family personal property and market transaction, which is not good for civil law and Commercial LawHarmony within the law. Reflected in the insurance law, the purpose of the insurer is to seek profits, but forced by the

31、 needs of the legislative style to pay attention to the family, bloodMargin, property and other issues, making the profit of commercial behavior due to pretend to be noble and Na in profit, but also makes the harmonious and friendly peopleIn addition method stench. The two legal system are not harmonious, which will i