投保欺诈的法律规制路径

Legal Regulation Path of Fraud During Insurance Contracting on Party of Insureds

现行保险法规范对投保欺诈的规制明显不足,为投保欺诈者提供了可乘之机。既有的非保险法规制路径有合同法和侵权法两条路径。对于前者,投保欺诈不符合违约责任的构成要件,缔约过失损害赔偿责任无法为保险人提供救济。此外,承认保险人欺诈撤销权规定的可适用性,则会破坏如实告知义务制度的基本框架,损害《保险法》的体系性,因而均不足取。对于后者,故意损害他人纯粹经济利益的行为在我国侵权法上可被认定为侵权行为,投保欺诈属于故意损害保险人纯粹经济利益,造成保险人经济损失的,构成侵权,投保人须对保险人承担侵权损害赔偿责任。但侵权法路径在举证方面的难度和成本导致其并非投保欺诈的最优规制路径。为实现对投保欺诈最充分的规制,保持法秩序的一致性,应当回归到保险法路径中,以对价平衡原则和保险消费者保护原则为基本价值理念,对保险法规范进行改造。一是将2年除斥期间延长为5年,二是将除斥期间内未发生保险事故作为除斥期间规定的适用前提。

Current insurance law rules are obviously insufficient in regulating fraud during insurance contracting on the party of the insureds,which have provided a chance for opportunists to take advantage of.There are two non-insurance law regulation paths:the contract law path and the tort law path.As for the former,fraud during insurance contracting on the party of the insureds doesn’t satisfy the constitutive conditions of default liability,and liability for contracting negligence also can’t remedy the insurers.In addition,admitting the applicability of the rule of insurers’revocation right based on fraud will destroy the fundamental framework of the duty of disclosure and damage the systematic structure of Insurance Law.Consequently,the contract law path is totally inapplicable.As for the latter,harming others’pure economic interests on purpose can count as infringement in Tort Law of China.The insureds’fraud during insurance contracting is in essence harming the insurers’pure economic interests intentionally and will constitute infringement when the insurers suffer economic loss,which would lead to the insureds’tort damages liability to the insurers.However,the difficulties and costs of the insurers to take proof make tort law not the best regulation path.To achieve the most sufficient regulation of fraud during insurance contracting on the party of the insureds,and maintain the consistency of law orders,the most advisable approach is to get back to the insurance law,hold the principles of equivalence and insurance consumers protection as basic values,and modify current insurance law rules.One is to extend the 2-year scheduled period to 5 years,the other is to make that no insured events happen within scheduled period a prerequisite of the scheduled period rule’s application.