核保期间寿险合同成立问题探讨

On the Establishment of Life Insurance Contract during the Underwriting Period

为解决核保期间投保人与保险人间的合同关系及保险责任承担问题,我国法院逐渐形成了两种不同的见解:一是"拟制同意承保模式",二是"可保型模式"。然而,这两种模式均无法合理地解决保险人之核保权与保险消费者合理期待与诉求的平衡问题。域外的实践表明,无条件临时保险跳出了核保期间寿险合同成立争论的窠臼,其在利益平衡的视野下较好地解决了核保期间保险当事人间的合同关系及风险分担问题,这对我国的保险立法或司法实践具有借鉴意义。

To resolve the problems of contract relationship and responsibility assuming between the insured and insurers during the underwriting period,there are two different methods taken by the courts in China.One is 'Fiction Approval-Type Underwriting';the other is 'Satisfaction-Type Underwriting'.However,neither method can balance the rights of underwriting by the insurer and the reasonable expectations by the insured.Experiences of other countries show that the Unconditional Temporary Insurance has gone beyond the debate of the establishment of life insurance contract by balancing the rights of the insured and insurers,and can better resolve the problems of contract relationship and responsibility assuming between them during the underwriting period.This affords a salutary lesson for our insurance legislation and judiciary practice.