我国保险合同效力形态缺位分析

On the Absence of Effect Form in Insurance Contract in China

保险合同是一种债权债务合同,属于合同法的调整范围,但由于其特殊性,各国都将其从合同法领域分离出来单独进行规范。与我国合同法相比,保险法中关于保险合同效力形态只有有效和无效两种区分,以保险法第56条规定为例,许多在合同法看来基于当事人意思自治可以使之有效的可撤销、可变更以及效力待定合同都被保险法归为无效合同。这不仅违背了当事人意思自治的法理,也影响着缔约的效率。因此,有必要完善关于保险合同效力形态的规定,区别对待保险法中规定的无效合同情形,将通过当事人意思自治可以使之有效的相对无效合同回归到合同法理论框架中去。

The insurance contract, a type of debt-credit contract, is regulated by Chinese Contract Law, but it, in many countries, is seperated for ruling from the scope of contract law owing to its special characteristics. In contrast with Chinese Contract Law, there only exist two kinds of effect form, that is effective contract and voidance contract in insurance contract according to the rules of Chinese Insurance Law. Take Article 56 as an example, many voidable contracts can be effective if both parties agree are pushed to the scope of voidance contract, which obeies the rule of autonomy of the will and has some harmful effect on the efficiency of striking agreements. Based on above analysis, it is necessary to consummate the rules about the effect form of insurance contract and give different treatment to the voidance insurace contract to return the voidable contracts that can be effective if both parties agree to the frame of Chinese Contract Law.