明确说明义务的困境和出路——基于中国商业车险的观察

Dilemma and Solution of Duties Manifestly Stipulated:Based on the Observation of Chinese Commercial Auto Insurance

明确说明义务规则发挥的效用毁誉参半,柔性立法给予司法实践充分的裁量余地。形式论、实质论和区分论在特定历史时期均能实现一定的公共政策。信息不对称发生时空转换,法官裁处车险纠纷时,以实体规制为核心,明确说明义务规则或者沦为锦上添花的装饰品,或者化身为阻扰法官下判的路障。结合中国车险市场发展实际,解释论层面上,明确说明义务规则应回归形式论,并辅之以实体规制;展望未来,明确说明义务规则应由强制型转变为倡导型。

The effectiveness produced by the regulations of duties manifestly stipulated has to be as much praised as blamed.Flexibility legalization has endowed justice sufficient discretionary power.The standpoint of Formalism,Essence and Distinction has realized their respective public policy.The judge has accustomed to utilize entity compulsion in the course of auto insurance dispute on account of the transformation about information asymmetry.The regulations of duties manifestly stipulated have translated decoration to add brilliance to juridical present splendor or roadblock to pullback judicial judgement.To respond the reality of Chinese auto insurance market development,the regulations of duties manifestly stipulated should obtain regression of Formalism concerning legal interpretation in the meantime adopting supplementary of entity compulsion as well as translate from compulsion to advocacy specification in the future?