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British insurance law

2019-01-25 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- British insurance law,供大家参考学习,这篇论文讨论了英国的保险法。在英国,其保险法发展的早期,海上保险中的被保险人都是从事航海运输的商人,而保险人亦非专业的保险公司,而是自然人或由自然人组成的松散联合。而由于信息技术的落后,保险人仅能凭借被保险人的告知来了解那些保险标的风险状况,评估可保性或办理理赔事务。

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The issue of causality identification in the insurance law of the United Kingdom is brought up, and the most representative one is the case of Wayne tank heard by the British court. In the case of Wayne tank in 1974, the insured provided and installed wax storage and conveying equipment for a factory, which was used to regulate the temperature of wax, including plastic pipes for thermostats. However, after the installation of the pipe but without testing, the equipment is opened for operation. Because the pipe itself was defective and the insured engineer left the workshop while the machine was in operation, the machine caused a fire. The insurant of this case ever bought liability insurance, insurance agreement, because employee error and the indemnity liability that the insurant produces to the 3rd person belongs to accept insurance limits, but because the blemish of the commodity that insurant place offers, the loss that causes belongs to exception item however. The focal point of this case depends on, when a harm result is caused by many reasons, and when part of the reason belongs to accept insurance item, but the existence does not belong to again accept insurance item other reason, whether should the underwriter undertake insurance liability to the loss?

Since the establishment of causality is directly related to whether the insured can get compensation, the identification of causality is particularly important. In practice, the cause of a damaging result can be either unique or multiple. When "liability establishes causality", if a single cause leads to the occurrence of damage result, the problem is relatively simple. Otherwise, there is no liability. But when the result is caused by multiple factors, the problem becomes more complicated. At this point, if the multiple risks are covered or excluded, the insurer's liability is not difficult to determine. The real difficulty lies in how to determine the liability and scope of the insurer among these multiple proximate causes if some of them are covered by the insurance while others are not covered by the insurance or even the exclusions.

The common law system has summed up many kinds of recognition rules, among which the four most important ones are the old traditional rules and effective recency rules, as well as the newly emerging partridge rules and proportional distribution rules.

Traditional rules are also known as strict determination law or conservative method. According to this rule, when a damage result is caused by multiple reasons, even if most of the reasons belong to the insured items, as long as one of the reasons belongs to the scope of exclusive liability, the insurer is not liable for the whole loss. This is the insurance contract in the effect of the exclusion clause prior to the coverage of the provisions. And when accept insurance danger and blame accept insurance when danger causes damage jointly, the underwriter should assume all insurance liability. That is, in the fifth case of the preceding table, the insured can be fully compensated, and in the sixth case is not a penny.

This case is a typical case of traditional rules. LORD denning quoted LORD SHAW in his judgment:

To treat proximate cause which is proximate in time, as I have said, out of the question. The cause which is truly proximate is that which is proximate in efficiency.

Seeing that the dangerous installation was the dominant cause, it comes within the exceptions and the Employers' Liability company are not available on this policy.

Therefore, the British court of appeal held that although the product defect and the negligence of the engineer were the causes of the accident in this case, the product defect was an exception specified in the insurance contract, and its effect took precedence over the terms of the coverage. Therefore, the insurer was not liable for any insurance.

The reason why English law adopts this rule which is more favorable to the insurer is closely related to its special historical background. In the early stage of the development of insurance law, the insured in Marine insurance were all merchants engaged in Marine transportation, and the insurer was not a professional insurance company, but a loose association of natural persons or composed of natural persons. However, due to the backwardness of information technology, the insurer can only rely on the informed by the insured to understand the risk status of the subject matter of insurance, evaluate the insurability or handle the claim affairs. Therefore, the court in this case showed a more moderate attitude towards the insurer.

However, today, the basis for the existence of traditional rules has disappeared, which means that this judgment method is not consistent with the contemporary insurance industry. There are several reasons as follows:

With the development of modern insurance industry, on the one hand, the insurer has regained the right to formulate insurance clauses, and the development of information collection and transmission and actuarial technology enables the insurer to more accurately assess the insurability of specific risks. On the other hand, ordinary consumers, who have no knowledge of insurance, begin to become the main body of the insured, which all make the original information advantage of the insured inverted, thus destroying the basis of priority protection of the interests of the insurer.

Insurance contract is format contract more, look from the Angle of insurant, the standardization of insurance product means to will decide the specific content of insurance contract by the underwriter, the right that changes insurant to negotiate in order to decide insurance clause falsely. Based on the moral hazard induced by interest preference, the insurer shows an obvious tendency to make unreasonable distribution of transaction risk in the standard terms drawn up by using the contract drafting right, and stipulates extremely harsh terms for the insured.

According to the application logic of the traditional rules mentioned above, when the insured matter and the non-insured matter jointly cause the result of damage, the most appropriate conclusion seems to be to treat the non-insured matter and the exclusion equally and exempt the insurer from liability. However, the court adopting the traditional rules now requires the insurer to assume the liability for all the losses instead, because the insurer did not explicitly exclude the losses caused by the foregoing reasons. The paradox of this argument, however, is that the insurer has not agreed to underwrite the foregoing reasons. Obviously, the internal logic of traditional rules is inconsistent.

Traditional rules will give rise to many problems in contemporary practice. First, it may blur the underwriting commitment provided by the insurance contract, contrary to the insured's expectations. Because, when there are multiple causes of damage, the application of traditional rules will often deprive the insured of the risk protection.

Second, traditional rules do not close the underwriting gap. In liability insurance, the result of damage is often caused by several parallel and different causes, but it is impossible for the insured to predict in advance which causes will combine to cause damage. At present, there is no relevant product in the market, which provides protection for the damage caused by a variety of reasons including the combination of underwriting and exclusions.

Finally, when the insured is unable to obtain the insurance benefits, he may file a lawsuit against the insurance broker, accusing him of negligence in helping him choose to buy insurance products, thus causing a lot of subsequent problems. Therefore, our law should not adopt this rule.

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