保险法视域下不可抗辩条款研究

Study on the Non-Defense Clause from the Perspective of Insurance Law

十九世纪中叶的欧洲,各行各业欣欣向荣,保险业便是其中之一。在保险业务增多的同时,保险赔付纠纷的发案率也随之增长。由于当时保险业通行严格一致原则,使得很多保险人特别是寿险保险人滥用保险合同的抗辩权来解除合同,甚至一度被戏称为“了不起的拒付人”,行业面临信任危机。为缓和矛盾,当时的一些保险人便在合同中插入了不可抗辩条款作为约定条款,这便是不可抗辩条款的雏形。我国现行《保险法》第二章第十六条也为此规定了,保险人主观事由出现之日起的三十日,客观事由发生之日起的两年内的抗辩期间,期间经过,便产生不可抗辩的效果,应承担赔偿或给付保险金之责任。该条款自公布实施至今其合理性及可实施性仍是学术上争论的焦点。在《民法典》《保险法》视野下对不可抗辩条款进行研究、探讨与改进,为日后有关不可抗辩条款的适用与修改提供参考。

In mid-19th century of Europe,various industries flourished,and the insurance industry was one of them.As insurance business increases,the incidence of insurance claims disputes also increases.Due to the strict adherence to the principle of consistency in the insurance industry at that time,many insurers,especially life insurers,abused their right of defense in insurance contracts to terminate them,and were even jokingly referred to as“great chargers”,causing the industry to face a crisis of trust.In order to ease the conflict,some insurers at that time inserted non defensible clauses as agreed clauses in the contract,which was the prototype of non defensible clauses.Article 16 of Chapter 2 of the current Insurance Law of our country also stipulates that the insurer shall be liable for compensation or payment of insurance benefits within a period of thirty days from the date of the occurrence of subjective reasons and two years from the date of the occurrence of objective reasons.If an undeniable effect occurs during this period,the insurer shall bear the responsibility for compensation or payment of insurance benefits.The rationality and feasibility of this provision have been a focus of academic debate since its publication and implementation.From the perspective of the Civil Code and Insurance Law,research,exploration,and improvement of non-defensible clauses are conducted to provide reference for the application and modification of non-defensible clauses in the future.