人身保险复效与解除权的衔接构造

The Connecting Structure Between the Right of Rescission and Reinstatement of Personal Insurance

复效系指因投保人未交保费导致合同中止时,若其在法定期限内申请复效并补交保费便能恢复合同效力的法律构造。我国实证法中,对除投保人以外的关联利益主体是否享有复效申请权,以及其申请后能否代为补交保费的问题未置一词。从法律逻辑与价值基础出发,复效制度须因应司法实践需求,在基础结构上适度扩张申请权主体以实现续造。复效与解除权制度本应相互独立,但因人身保险真正利他性而导致第三人与合同主体间存在信息差,加之解除权形成性原理,第三人在保险人法定解除权与投保人任意解除权项下可能遭遇利益减损。为缓和利益波动,弥合二者的制度间隙,可通过预防构造与应对构造的模式组合加以衔接。其中保险人法定解除权与投保人任意解除权应分别对应单一通知模式与“复催告—自由”模式。

Reinstatement of insurance refers to a legal mechanism wherein,upon the policyholder’s failure to timely pay premiums,leading to the suspension of a personal insurance contract,the contract can be reinstated if the policyholder applies for reinstatement within the statutorily defined reinstatement period and pays the outstanding premiums.Originating from the inherent power asymmetry between insurers and policyholders,this mechanism serves to restore contractual equilibrium,ensuring the continuity and stability of the insurance contract while safeguarding the contractual interests of both the insured and beneficiaries.However,as a contract inherently altruistic in nature,personal insurance extends beyond the concerns of the policyholder and the insurer,involving third-party interests during contract performance.Such complexity results in the normative framework modeled on dual contracts tending to overlook the interests of third parties,especially when the insurer and the policyholder exercise their right of rescission.Thus,there is a pressing need for a nuanced institutional design to protect third-party interests in the context of personal insurance reinstatement.In the current Chinese legal landscape,the reinstatement system relies on a foundational structure encompassing a“reinstatement request”and“hazard defense”.However,current insurance law fails to address the question whether third parties,whose interests are intertwined with the contract apart from the policyholder,possess the right to apply for reinstatement and if they can make premium payments on behalf of the policyholder following such an application.Given that third parties lack contractual insight and therefore unable to ascertain specific contract performance details,such a legal structure may result in the loss of opportunities for the third parties to self-remedy their insurance interests.Consequently,the reinstatement system should undergo two structural adjustments to address this issue.Firstly,from both logical and legitimacy perspectives,the reinstatement system should align with the demands of judicial practice.This entails expanding the qualification for reinstatement applications to include the insured or beneficiary while imposing a duty on them to inform the policyholder after applying for reinstatement,thereby compelling the policyholder to rectify premium payments.Secondly,building upon this,the system should permit third parties to make premium payments for a suspended contract through mechanisms including“third-party alternative performance”or“exempt debt assumption”,which help realize the two institutional values of the reinstatement system,namely continuation and mutual benefits.The reinstatement system and the right of rescission should ideally operate independently.However,due to the inherent altruistic nature of personal insurance contracts,an information asymmetry exists between the third parties and the contracting parties.Additionally,the formative nature of the right of rescission implies inadequate reminders for third-party rights.Consequently,third-party interests are at risk in situations involving the statutory right of rescission exercised by the insurer and the discretionary right of rescission exercised by the policyholder.To safeguard third-party interests and bridge the gap between these two systems,a combination of preventive and responsive constructions could be implemented.In terms of specific institutional construction,distinctive modes should be devised for the discretionary right of rescission and the statutory right of rescission.For the former,a notification mode is recommended for the policyholder’s exercise of discretionary rescission.This mandates that the policyholder informs the third parties of the information on the exercise of rescission right before doing so.For the latter,the re-interpellation system could be introduced for the statutory right of rescission.This system requires the insurer to notify the third parties concurrently with reminding the policyholder to pay the premium.It needs to be aligned with the free mode of the right of rescission thereafter.The existing legal scholarship has shown a notable dearth in addressing the safeguarding of third-party interests in the context of insurance reinstatement.Also,a comprehensive exploration of the intricate relationship between the reinstatement and the right of rescission is conspicuously absent from scholarly discourse,creating a discernible theoretical gap.This paper addresses this research vacuum by examining the reinstatement system,the right of rescission,and their articulation as three distinct thematic dimensions.It introduces a typology-based approach to articulate the reinstatement and recession rights system,providing a nuanced understanding of their interplay;while also evaluates the roles of the“re-interpellation system”and the“inquiry into redemption”system within the discussion.The proposed articulation construction,emerging from this inquiry,can better fulfill its dual institutional values of continuity and mutual benefit while ensuring proper protection for third-party interests.