论基因信息在保险核保中的使用及限制

The Use and Restrictions of Genetic Information in Insurance Underwriting

我国现行规范采取完全禁止保险人使用基因信息核保的立法模式存在争议。从利益平衡的角度来看,完全禁止模式保护被保险人人格利益的基本立场值得肯定,然而该模式并未充分兼顾保险法的对价平衡原则以及保险本身的运作机理,亦不符合比例原则的要求,存在适当调整的空间。以禁止为原则允许为例外的严格限制模式是较为适宜的解困方案。这种模式既符合保险风险测算的原理,同时兼顾了对价平衡原则,并能够平衡各方利益,符合比例原则。此外,该模式亦与商业保险在我国的功能定位相契合。至于保险人使用部分基因信息核保所产生的对价失衡风险、基因歧视及弱势群体难以获得保险保障的风险、隐私与个人信息泄露的风险,可以从限定基因信息收集范围、限定险种、设定额度门槛、禁止保险人以基因检测为核保条件、细化如实告知义务、设立前置审批程序、完善基因信息收集程序等方面通过制度设计予以规制。

The current legislative model that completely prohibits insurers from using genetic information for underwriting is controversial.From the perspective of balancing interests,the basic standpoint of total regulation in protecting the personal interests of the insured deserves recognition.However,the total regulation does not sufficiently consider the principle of consideration balance in the insurance law and the operational mechanism of insurance,nor does it meet the requirements of the principle of proportionality.There is a need for moderate adjustments.The strict restricted mode that prohibits the use of genetic information underwriting by insurers as a principle but allows exceptions for insurers to use genetic information for underwriting within limited scope is a more suitable solution.The reasons are as follows.Firstly,the strict restricted mode does not deny the basic stance of prohibiting the use of genetic information in principle.Secondly,genetic information presents a diverse characteristics in accurately assessing risks.Allowing insurers to collect genetic information with more accurate predictive capabilities within a limited scope can resolve the controversy over the accuracy of genetic information risk predictions and enable insurers to accurately assess risks.Thirdly,collecting genetic information within the restricted scope will not result in the proliferation of adverse selection.Fourthly,the risks of compromising the insured’s personal interests arising from the use of genetic information within the restricted scope can be controlled.Fifthly,allowing the use of genetic information within the restricted scope aligns with the functional positioning of commercial insurance complementing social insurance in China.This can not only balance the consideration balance principle in insurance and the operational mechanisms of insurance,but also achieve the balance of interests among all parties,i-n line with the principle of proportionality.However,allowing insurers to use partial genetic information for underwriting may result in the risk of consideration imbalance,genetic discrimination,difficulties for vulnerable groups in obtaining insurance protection,and potential risks of privacy and personal information leakage.These risks can be controlled through reasonable institutional design.Firstly,insurers should be required to collect genetic information that meets the scientific reliability standard and has a direct relevance to risk assessment.Moreover refining insurer’s inquiry specifications and improving the duty of utmost good faith disclosure system can help control the risks of consideration imbalance.Secondly,genetic discrimination and difficulties for vulnerable groups in obtaining insurance protection can be controlled by limiting the types of insurance where insurers have the authority to access to genetic information,setting threshold amounts for insurer’s access to genetic information,prohibiting the insurers from actively requesting genetic testing from the insured as a condition for underwriting,and enhancing pre-approval procedures by insurance regulatory authorities.Lastly,controlling risks of individual privacy and sensitive information leakage by insurers during the use of genetic information can be achieved through refining the insurer’s disclosure obligations,limiting the insured’s consent to“separate consent only”,imposing confidentiality obligations on insurers after obtaining genetic testing results and clarifying the insured’s rights to rectify and delete genetic information.