公平原则视角下未检车辆免责条款析论

Analysis on the Exemption Clause of Uninspected Vehicle from the Perspective of Fairness Principle

车辆保险合同中未检验车辆免责条款有违公平原则,属于保险法第十九条第一款规定的"免除保险人依法应承担的义务"之情形,应属无效条款。实务中法院倾向于通过形式认定对该条款的效力作出判定,但该类保险附随给付条款应主要借助以公平原则为导向的实质认定手段进行规制。未检车辆免责条款的设立初衷是控制承保车辆的风险,但是实践经验证明未检验车辆并不必然处在危险状态之中,未检验与危险增加之间通常没有关联性。为解决保险人控制经营风险与被保险人转移风险之间的矛盾,双方可以约定将该条款由状态免责条款转变为原因免责条款,以避免矫枉过正之嫌。

The exemption clause of uninspected vehicle in the auto insurance contract violates the principle of fairness.This clause complies with the“exemption of the insurer’s legal obligations”which stipulated in the first paragraph of Article 19 of the Insurance Law and shall be an invalid clause.In judicial practice,the court tends to make judgments on the validity of the clause through formal examination,but this kind of supplementary insurance clauses should be mainly regulated by means of substantive examination guided by the principle of fairness.The original intention of the exemption clause for uninspected vehicle was to control the risk of insured vehicles,but practical experience has proved that uninspected vehicles are not necessarily in a dangerous state,and there is usually no correlation between uninspected vehicles and the increased risks.In order to resolve the contradiction between the insurer’s control of business risks and the transfer of risks by the insured,the two parties can agree to change the clause from a status exemption clause to a cause exemption clause to avoid being overkill.