论我国海上保险中的保证条款——比照MIA1906

On the Warranty Term in Marine Insurance——As Compared with MIA1906

我国保险法律未明文规定海上保险中的保证概念。比照M IA1906的相关规定,探讨我国司法实践中应如何对待海上保险中的保证条款,指出对明示保证应作限制性处理,目前不应承认默示保证。修改《海商法》时,应明确界定保证的概念、违反的救济方式以及订约时保险人对保证条款的说明义务,可仅明文承认某些具体的默示保证。

The concept of warranty in marine insurance finds no place in the insurance laws of P. R. C. Upon comparison made with the MIA1906, a probe is made into how to treat the warranty term in marine insurance and a conclusion is drawn that restriction must be put upon the express warranty in its application and implied warranty set aside. In its revision, the Maritime Code of P. R. C should contain in it the express stipulations as to the definition of warranty, remedies in respect of its breach, and the explanation by the insurer as to the warranty term at the time of conclusion. The Maritime Code may provide for and admit some particular implied warranties and no others.