In the course of practice ,China's Insurance System of Insurer's Explanation Obligation is frequently abused by the insured , who tends to take it as a universally applicable tool when defending himself/herself against the insurer for interest . However , the range of this legal system is only restricted toinsurance clauses ,and its jurisprudence basis should be the restrictive principle of contract law for standard form contract .In this paper , the reconstruction of China's Insurance Systemof Insurer's Explanation Obligationis proposed .The basicideas of the proposal include the following points :the explanation targets should be″clauses of rights and obligations″and″clauses of quasi rights and obligations″rather than″legal exemption clauses″;the explanation method in principle ought to be″oral and written″,with″hold harmless clauses″a s an exception;the explanation criterion should be″the understanding of an ordinary reasonable person″on an active explanation basis , and″the understanding of the insured″on a passive explanation basis;and the legal consequence should″not be laid into the insurance contract″. Therefore , it seems that Article 17 of the new Insurance Law still needs the following amendments :″legal exemption articles″s hould be excludedin the explanation target;thelegal regulation of″passive explanation″should be included in the explanation method;and the rule of″disintegration of contract″should be adopted when the legal consequence is taken into consideration .
吴勇敏 胡斌. 对我国保险人说明义务制度的反思和重构----兼评新《保险法》第17条[J]. 浙江大学学报(人文社会科学版), 2010, 40(3): 88-96.
Wu Yongmin Hu Bin. A Reflection on and Reconstruction of China's Insurance System of Insurer's Explanation Obligation :Comments on Article 17 of New Insurance Law. , 2010, 40(3): 88-96.