论海上保险中的“仓至仓”条款与中国保险利益界定原则之冲突及对策

The conflict between the "Warehouse to Warehouse" clause of marine insurance and the definition principle of insurable interest in China and the countermeasures

海上保险中"仓至仓"条款是保险人通用的海上货物运输保险责任期间条款,保险利益界定原则是保险赔偿在买卖双方之间的限定原则,其宗旨为防止"道德风险"。中国目前以风险承担界定买卖双方之间的保险利益。针对两者存在冲突而导致买卖双方均无法索赔的不合理现象,深入分析两者冲突的情形、原因、现有界定原则的法律依据、中国保险利益的含义,对现有界定原则予以质疑并提出对策,认为应当以实际损失承担界定买卖双方之间的保险利益。

The ＂Warehouse to Warehouse＂ clause of marine insurance is the common liability period clause during marine cargo carriage used by the insurer. The definition principle of insurable interest is how to define the insurable compensation between the seller and the buyer, which aims to prevent the ＂moral risk＂. China adopts the assumption of risk to define the insurable interest between the seller and the buyer. Because of the potential conflict between the W/W clause and the definition principle, both the seller and the buyer can not get the compensation from the insurer. In view of the undesirable situation, this paper analyzes the condition, the reason of the conflict and the legal basis of the current definition principle, the legal implication of insurable interest in China. The current definition principle is questioned and the countermeasures are proposed so that the assumption of actual loss should be applied in the definition of insurable interest between the seller and buyer.