保险标的转让效力与立法约束研究——兼论《保险法》第49条之立法缺陷

Effectiveness of Transfer of Subject Matter Insured and Legislative Constraints——Based on the Legislative Defects of Article 49 of "Insurance Law"

新《保险法》实施近三年来,财产保险标的转让后,保险合同当然转让还是通知转让,转让后风险程度发生的变化程度和受让人是否拥有保险利益等引起不少争议。本文从海上保险与财产保险的立法理念和实践出发,探讨保险标的转让在海上保险、财产保险和强制保险业务实践的不同表现,认为不同业务或险种应适用不同的法律体系,法律适用的基本准则应遵循特别法优先于普通法的原则,法律规范和保险条款必须具体完整、严谨和不产生歧义才能真正保护保险消费者的合法权益。

Although the new Insurance Law has been in force for 3 years, there are still a lot of controversies regarding contract transferability. The specific questions are that whether the insurance contract is transferred automatically or conditionally after the property transfer of the subject matter insured ,what if the degree of risk changes after the transfer, and whether the transferee has an insurable interest as well. This paper explored the different operations of property transfer in the business of marine, property and compulsory insurance based upon the concepts and prac- tices of marine insurance and property insurance legislation. It concluded that different lines of insurance should apply a different legal system, and that, as a basic norm of law, the special law should take precedence over common law, and the legal norms and insurance terms must be specific and rigorous and unambiguous in order to effectively protect the legitimate rights and interests of insurance consumers.