保险法如实告知义务的司法裁量

The judicial discretion in relation to the disclosure obligation stipulated in the Insurance Law

如实告知义务制度是保险法的基本制度之一。虽然修改后的《保险法》对如实告知义务进行了完善,但仍无法详尽,如实告知义务实践和理论中的许多争议都必须依靠法院的自由裁量来解决。在投保人告知事项范围、告知义务主体、违反如实告知义务的法律后果等争议比较集中的典型问题上,应将理论与保险商事实践相结合,进行科学的司法裁量,构建和谐的保险秩序。

The disclosure obligation is one of the basic rules of the Insurance Law. Though the revised Chinese Insurance Law has improved on its stipulation on the disclosure obligation, there are still many cases unspecified. Therefore, many disputes related to the disclosure obligation practices and theories have to depend on judicial discretion to be resolved. For some common disputes such as the scope of disclosure by the applicant, subjects of the disclosure obligation and legal consequences of violation, the courts should take into considerations the relevant theories and insurance practices with due discretion in order to establish a harmonious insurance system.