《民法典》时代保险经纪人的法律地位

On the Legal Status of Insurance Brokers in the Era of the Civil Code

保险经纪人的法律地位系于保险经纪人与投保人的法律关系是中介合同还是委托合同,进而确定可得类推适用的规范。这一定性的关键在于保险经纪合同所约定的保险经纪人的角色和业务范围。相关保险法中规定的保险经纪人的义务属于根据保险经纪人的特殊性而专门作出的规定,都有进一步予以解释和完善的空间,即金融消费者保护法有关适当性义务的规范并不适用于保险经纪人向投保人推荐非投资型保险产品;保险经纪人应向投保人披露其收费标准且禁止保险经纪人获取额外收益的管制措施应予变通;保险经纪人不能从代收的保险费中先行扣抵佣金;保险经纪人违反了其所负的报告重要信息的义务应承担损害赔偿责任。从对义务的强度分类来说,保险经纪人的义务在性质上应评价为适当性义务,且为一般原则;保险经纪人的业务行为致使保险消费者产生了高度信赖时,保险经纪人应秉持善意,例外负有信义义务。

The legal status of an insurance broker is determined by whether the legal relationship between the insurance broker and the policy-holder is a relationship of contracts for intermediation or a relationship of contracts for commission,which in turn determines the norms that can be applied by analogy.The key to this characterization is the role and scope of business of the insurance broker as stipulated in the insurance brokerage contract.The obligations of insurance brokers as set out in the relevant insurance law fall under the special provisions of the insurance brokerage contract and undoubtedly have priority of application,that is:the norm of the applicable obligations concerning the protection law of the financial consumers does not apply to the non-investable insurance products provided by the insurance brokers to the policy-holders;the regulations concerning the explosure of the charge fees to the policy-holders by the insurance brokers and the prohibition of the insurance brokers collecting extra benefit should be flexible;the insurance brokers should not deduct commission in advance from the insurance fees;the insurance brokers who have failed to fulfil the obligations of reporting very important imforamtion should be responsible for refund for the damages.In terms of the classification of the intensity of the obligations,the obligations of insurance brokers should be evaluated as suitable in nature and as a general principle;insurance brokers should act in good faith and exceptionally owe a fiduciary duty when their business conduct has led to a high degree of trust on the part of the insurance consumer.