论保险行业协会制定规则的权限——兼论反垄断法对保险行业协会规则制定的影响

The limits of rule-making for insurance associations——The impact of Anti-monopoly Law on rule-making by insurance associations

无论从实践还是从理论的角度看,保险行业协会都享有制定规则的权利。保险行业协会的规则制定权来源于三个方面:协会成员的授予、法律法规的规定和政府机构的委托。保险行业协会可以在法律法规没有规定的领域或者规定不符合实际情况的领域制定规则,但要注意不能违反国家强行法,不能侵害第三人和协会成员的利益,不能损害社会公共利益。大部分国家的保险业不受反垄断法豁免,保险行业协会的固定价格规则、分割市场规则、行为标准规则易触犯反垄断法,本身违反原则和合理原则是判断规则是否触犯反垄断法的两个依据。

Insurance associations have the right to promulgate rules no matter from the practical or the theoretical perspectives. Their right of rule-making is derived from three sources ： authorization by members of the association, provisions by laws and regulations and entrustment by government agencies. Insurance associations can promulgate rules in areas lacking formal regularization by laws and regulations or in areas where existing regulations are unsuitable to the actual situations. But they should not enforce their rules forcefully or damage interests of the third party, their members＇, or the public＇s. The insurance industry in most countries is not exempted from the anti-monopoly law. Insurance associations＇ fixed price rule, market segmentation rule and behavioral standard rule may violate the anti-monopoly law. The two bases to judge whether some rules have violated the anti-monopoly law are the self-violation rule and the reasonable rule.