未成年人死亡给付保险道德危险的法律规制——兼评《保险法司法解释三》的相关规定

Legal Regulations on Moral Hazard of Mortality Insurance for Minors——Comment on Relevant Provisions of Interpretation Ⅲ of Chinese Insurance Law

未成年人是社会弱势群体,其身心发育尚不健全,没有完整的分析和判断能力。允许未成年人作为死亡给付保险的被保险人极易引发道德危险,因此,必须建立健全相关法律机制防范此类危险的发生。我国《保险法司法解释三》从投保人主体调整与同意权行使方式修正两个方面进行了完善,但仍面临未成年人父母同意空洞化、未成年人自身作为被保险人防范道德危险的立法旨意落空等问题。总结各个国家与地区有关该问题的学理论争与实务经验,较为可行的解决路径是:禁止非近亲属监护人为未成年人投保死亡给付保险,只准许未成年人的父母与近亲属监护人投保,同时建立投保人与行使同意权人分离的制度。另外,可以兼采保险金额限制与投保年龄限制作为辅助的道德危险防范机制。

Minors are socially disadvantaged groups with insufficient physical and mental development,in want of cognitive ability and civil conduct capacity. Therefore,it is very dangerous to allow minors to be the insured of mortality insurance,and it is highly necessary to establish and perfect relevant legal mechanism to prevent the occurrence of such moral hazard. The interpretation Ⅲ of Chinese Insurance Law offer judicial solutions from two aspects: adjustment of the applicant and amendment of the exercise of the insured’s consent. However,there are still some issues unresolved by existing laws and regulations regarding the exercise of right as the hollowing out of the consent of the parents of the minors and the failure of the minors themselves to act as the insured to prevent moral hazard,to name but a few. Upon Summarizing the theoretical differences and practical experience in various countries and regions,relatively feasible solutions are proposed as follows: only parents or close-relative guardians of minors could apply for mortality insurance for minors,meanwhile a system should be established to separate the applicant from the person exercising the right of consent. In addition,insurance amount limit and insurance entry age limit can be treated as auxiliary preventions of moral hazard.