我国海上保险保证制度构建与立法完善

Rules Construction and Legislative Modifications of Establishing Warranty System of Marine Insurance Law in China

我国《海商法》仅第235条规定了违反保证条款时,被保险人要承担书面通知义务,保险人享有解除或变更合同的权利。保证法律概念的缺失和法律规则构建的不足,导致法律适用的困难。通过全面梳理英国海上保险保证制度的规则演进和法律变革,对比我国《海商法》及《海商法(修改建议稿)》的规定,进而提出《海商法》修改时,应当构建海上保险保证制度。在立法上将“保证”定义为被保险人对与保险标的有关的特定行为、事件或状态的确认和承诺;明确保证需由被保险人与保险人约定,保证的种类应限于明示保证,而保证的形式不应限于书面形式;构建保证的法律规则,明确被保险人违反保证时,保险人的责任免除与承担的情形。

Article 235 under Maritime Code of The People's Republic of China only stipulates that the insured shall notify the insurer in writing immediately where the insured has not complied with the warranties under the contract and the insurer may terminate the contract or demand an amendment.The lack of the legal concept of warranty and deficiency of construction of the rule lead to difficulties in law application.The rules evolution and legal reformation of the warranty system of marine insurance law under the English law is comprehensively analyzed and contrasted with rules under Maritime Code of the People's Republic of China and its Revised Draft for Review.Further,this essay proposes that establishing warranty system of marine insurance is necessary when modifying Chinese Maritime Code,legally defines the definition of warranty as confirmation and commitment of the insured to a specific act,event or status relating to the subject matter of insurance.It clarifies that warranty shall be agreed upon by the insured and the insurer,the category of warranty is limited to express warranty while the form of warranty is not limited to written.Legal rules for warranty should be constructed with clear regulation of the exemption and assumption of the liability of the insurer when the insured breaches the warranty.