From the perspective of legislation and insurance practice, China's insurance law takes the content of the subject matter of insurance as the standard and divides insurance into two basic types: personal insurance and property insurance. Personal insurance is insurance with human life and body as the subject matter; Property insurance is insurance with property and related interests as the subject matter (Article 5 1 of the Insurance Law); Therefore, it is particularly important to study the internal differences between life insurance and property insurance from the legal point of view, which can not only accurately describe the specific insurance examples in the process of insurance practice and insurance legal service, but also help to promote the continuous development and improvement of the legal system according to the nature of insurance system memory. This paper analyzes the differences between the two through comparative study and combining with the current insurance legislation in China, so as to facilitate theoretical development and practical operation.
First, the subject matter of insurance is different.
The subject matter insured refers to the economic property or natural person of the insured. Most domestic insurance law scholars believe that the subject matter of insurance is equivalent to insurable interest. China's insurance law focuses on "things" rather than insurable interests. Article 32 of the Insurance Law stipulates: "A property insurance contract is an insurance contract with property and related interests as the subject matter of insurance." It can be seen that the subject matter of a property insurance contract is property and related interests. Article 5 1 of the Insurance Law stipulates: "A life insurance contract is an insurance contract with human life and body as the subject matter of insurance." It can be seen that the base price of a life insurance contract is a person's life and body. From the above analysis, we can see that the subject matter of property insurance has economic value, which can be objectively analyzed and evaluated with money, while the subject matter of life insurance is personal, which cannot be objectively evaluated with money. This is the most essential difference between the two, which determines other differences.
Second, the concepts of insurable interest are different.
The interest of insurance refers to the economic interest relationship between the insured and the insured. Only when this economic relationship is infringed can the insured accident be recognized and the insured can claim insurance compensation from the insurer. The ultimate goal of applying this concept is to prevent unjust enrichment and compensate for the damage and loss of the subject matter. Legislation and scholars at home and abroad agree that the elements of insurable interest are applicable to property insurance, but whether they are applicable to life insurance is still controversial. Personal insurable interest is a unique concept in Anglo-American insurance law. It is considered that whether the applicant has insurable interest in concluding an insurance contract is based on the life or body of others, and whether there is monetary interest or other people's interest between the applicant and the insured is the basis for judging. However, European insurance law does not apply the concept of insurable interest to the field of life insurance. As long as the applicant obtains the consent of the insured, the insurance contract is legal and valid. China's insurance law not only adopted the interests of Britain and the United States, but also adopted the consent of Europe. Article 52 of the Insurance Law stipulates that the insured shall take the life and body of others as the subject matter of insurance, or the person who has an insurable interest in blood relatives or in-laws as the subject matter of insurance, or conclude an insurance contract with the consent of the insured. The actual relationship between the applicant and the insured due to the relationship of maintenance, support and upbringing makes the applicant have an insurable interest in the insured; If there is no insurable interest between the applicant and the insured, but with the consent of the insured, the contract is still considered valid.
In addition, property insurance is divided into positive interest rate insurance and negative interest rate insurance. Positive interest insurance refers to the insurance contract to protect the positive interests of the insured. The so-called positive interests refer to the interests or interest relationships that a specific subject can actively pursue for a certain property or property rights. Negative interest is the loss of property interest that a specific subject may bring because of the occurrence of unfavorable circumstances. The distinction between positive interests and negative interests is also conducive to identifying the relationship between property insurance and liability insurance. The so-called liability insurance refers to the subject matter of insurance for which the insured is liable to a third party according to law (Article 49 of the Insurance Law). The "liability for compensation" here is a negative property interest, and its purpose is still to compensate the insured for the possible property burden due to any legal provisions, contractual obligations or other facts, which essentially belongs to the category of property insurance. But for a specific subject, positive interest means that the loss of property or real right causes direct losses to the subject of real right. Either the real property interest or the expected property interest is the direct object of the insurance accident. Negative interest liability insurance is not aimed at any existing property interests of the insured, and its purpose is only to prevent the insured from assuming economic compensation liability due to infringement, contract or other legal obligations. Whether it is a positive property interest or a negative property interest, it is for property insurance; As for the life insurance with life and body as the insurance object, because it is personal, it cannot be objectively evaluated by money, and even the insured has no insurance interest in the insurance object, so there is no distinction between "positive" and "negative" interests.
Third, the unjust enrichment of excess insurance is different for both.
The life insurance contract is a quota insurance and payment contract, and there are no problems of excess insurance, double insurance and unjust enrichment. Property insurance is a damage insurance and compensation contract, which is subject to the legal provisions of excess insurance, double insurance and unjust enrichment.
Property insurance aims to compensate the insured for property losses and aims at the interests of the insured. The insurance compensation obtained by the insured in the event of an insured accident can only be limited to the extent that the compensation interests are infringed. Academic circles call this kind of insurance "damage insurance" or "specific loss compensation insurance". It is based on the loss of insurance accident and aims at compensating the loss, so it is compensatory. Paragraph 2 of Article 39 of the Insurance Law stipulates: "The insured amount shall not exceed the insured value. If it exceeds the insured value, the excess will be invalid. " Article 40 stipulates: "The applicant for double insurance shall notify all insurers of the situation of double insurance." If the sum of the insured amount of double insurance exceeds the insured value, the sum of the compensation amount of each insurer shall not exceed the insured value. It can be seen that China's laws stipulate that property insurance shall not be over-insured, and repeated insurance shall not exceed the insured value. Life insurance is based on the priceless life and body, and both parties to the contract can freely agree on the insurance amount, which will be paid directly as compensation in the event of an insured accident, so it is called "term insurance" or "withdrawal loss compensation insurance" or "payment insurance" in academic circles. The priceless subject matter of life insurance determines that there is no excess insurance and double insurance in life insurance (especially life insurance), and in principle there is no problem of unjust enrichment. However, it should be noted that medical expenses insurance in health insurance or accidental injury insurance in personal insurance is damage insurance, which is called "intermediate insurance". Its purpose is only to compensate the insured for the expenses incurred by treating diseases. The insured shall not get improper benefits from the treatment of illness or injury, so the provisions of double insurance and unjust enrichment should also apply to the insured.
Four, the insurer's subrogation right is different.
The so-called right of subrogation, China's "Insurance Law" stipulates in Article 44: "If an insured accident is caused by damage to the subject matter insured by a third party, the insurer shall subrogate the insured's right to claim compensation from the third party within the scope of compensation". On the one hand, the liability for damages recognized as a third party should not be exempted because the victim has been insured by the insurance contract; On the other hand, just because the insured can get damages from a third party, the insurer's insurance liability cannot be exempted or reduced, and at the same time, the insured can be prevented from getting improper benefits. From the essence of law. This legislation aims to solve the conflict between the third party's liability for damages and the insurer's liability for insurance compensation. Its specific application should be different according to the nature of various types of insurance. In property insurance, because the subject matter of insurance is the content of insurable interest and is characterized by compensation, the insured may not get improper benefits from insurance, so the right of insurance subrogation is naturally applicable to property insurance contracts. Articles 44 to 47 of China's Insurance Law make more specific provisions on the insurer's right of subrogation in property insurance. But it should be noted that the insurer's subrogation right is also excluded from the property insurance contract. Article 46 stipulates: "The insurer shall not exercise the right to claim compensation by subrogation against the family members of the insured or their members, except that the family members of the insured intentionally cause the insured accident as stipulated in the first paragraph of Article 44 of the Cost Law. That is to say, if the third person is a family member or a constituent member of the insured, the insurer may not claim compensation from the third person in subrogation, except that the accident was intentionally caused by the third person. The legislative reason for this provision is that the third party has a life or production relationship with the insured and has the same interests. If the insurer has the right of subrogation, it is essentially the same as the insured's own liability for compensation, which can not achieve the purpose of insurance and should be prohibited.
In life insurance, the subject matter of insurance cannot be calculated in monetary value, even if the insured or his beneficiary of life insurance obtains insurance money from the insurer and damages from a third party, it does not belong to unjust enrichment. As mentioned above, in life insurance, life insurance or disability insurance belongs to fixed insurance, while insurance such as medical expenses belongs to damage insurance. The purpose of the contract is to compensate the insured for the expenses incurred due to the insured accident, which can be calculated by monetary value. Therefore, the provisions of the insurer's subrogation right do not apply to term insurance in personal insurance, such as life insurance, while the insurance subrogation right applies to insurance with the nature of damage insurance, such as medical expenses insurance. Therefore, Article 67 of China's Insurance Law stipulates: "If the insured of life insurance has an insurance accident such as death, disability or illness due to the behavior of a third party, the insurer shall not enjoy the right to recover from the third party after paying the insurance money to the insured or beneficiary." This article ignores different types of life insurance, including quota insurance and damage insurance, and simply excludes the application of the insurer's subrogation right in life insurance, which is inappropriate. This clause should be amended as follows: the insurer's right of subrogation does not apply to the insurance contract with the nature of quota insurance in life insurance, but it still applies to the insurance contract with the nature of damage insurance in life insurance.
Five, the provisions of the suspension and restoration of effectiveness have two different applications.
The suspension of the validity of an insurance contract means that the validity of the insurance contract is temporarily suspended, and the validity of the contract can be restored when the legal conditions or agreed conditions are met. The insurance reinstatement clause refers to the clause that the insured has the right to apply for the reinstatement of the contract after the validity of the life insurance contract is suspended. Article 57 of China's Insurance Law stipulates: "The contract stipulates that the insurance premium shall be paid in installments. After the insured pays the first premium, unless otherwise agreed in the contract, if the insured fails to pay the current premium within 60 days within the prescribed time limit, the contract will be terminated ... ". Article 58 stipulates: "If the validity of the contract is terminated in accordance with the provisions of the preceding article, the validity of the contract will be restored after the insurer and the insured reach an agreement through consultation and the insured pays the insurance premium. However, if both parties fail to reach an agreement within two years from the date of termination of the contract, the insurer has the right to terminate the contract. " These two articles are the provisions of China's Insurance Law on the suspension and restoration of the effectiveness of insurance contracts, which are only applicable to life insurance contracts and not to property insurance contracts. Because long-term life insurance has the value of investment and savings, if the insurance contract is terminated because the insured cannot pay the current insurance premium temporarily, the interests of the insured will not be protected in detail, which is not in line with the principle of fairness and reasonableness. Therefore, in life insurance, the legal consequence of the insured's failure to pay the current premium is the termination of the contract, which does not give the insurer the right to terminate the contract. China's "Insurance Law" stipulates that within 2 years after the termination of the insurance contract, if the applicant applies for reinstatement and reaches an agreement with the insurer to pay the insurance premium, the effectiveness of the contract will be restored. Only when the validity of the contract is suspended for two years, the insured does not apply for reinstatement or the conditions for reinstatement cannot be met, can the law give the insurer the right to terminate the contract.
6. Insurers have different requirements for unpaid premiums.
Article 59 of China's Insurance Law stipulates: "An insurer shall not require the applicant to pay the insurance premium of life insurance by way of litigation". Therefore, in the life insurance contract, the insurance premium cannot be collected through litigation, while in the property insurance contract, the law does not stipulate the way to recover the unpaid insurance premium. According to the principle of "freedom without prohibition", insurance premiums can be collected through litigation in property insurance contracts. However, we should pay attention to the application of Article 59 of the Insurance Law in the life insurance contract of paying insurance premiums by installments. Paragraph 2 of Article 56 stipulates that "if the contract stipulates that the insurance premium shall be paid by installments, the applicant shall pay the first premium at the time of the establishment of the contract". It can be seen that if the insurer of life insurance agrees to underwrite and issue a policy, according to the principle that the contract is not established, the first premium should be regarded as the creditor's right obtained by the insurer, and at this time, the insurance premium can still be paid through litigation. It can be seen that Article 59 is limited to the personal insurance premium paid at the end of the second time.
Seven, insurance risk, the insurance compensation is different.
Because of the nature of life insurance, it can be divided into quota insurance and damage insurance. There is no excess insurance and double insurance in the former, and there is no problem of unjust enrichment. The latter still applies to the relevant legal provisions of double insurance and unjust enrichment; The former does not apply to the legal provisions of subrogation, while the latter applies to the provisions of subrogation. Therefore, the insurance risk content that determines life insurance lies in the insured's physical health, life span and the possibility of external factors infringing on the insured (of course, the insured's own behavior is not excluded). The risk of special liability insurance in property insurance is that the insured may be liable for economic compensation to a third party due to tort, contract or legal obligation, so the specific behavior of the insured determines or affects the risk factors. For example, in contract liability insurance, the insurance contract comes from the contract itself, that is, the possibility of the insured's breach of contract and the resulting loss of contract interests of the other party; In product liability insurance, the risk comes from the risk that the products provided by the insured may bring to people or property; However, the danger of personal injury or property loss caused by tourism services is specific to the danger of providing services for the insured. In other property insurance, the behavior of the insured is not necessarily related to the occurrence of the insured accident. Even if the property loss is caused by the fault of the insured, the fault of the insured may be a factor to exempt the insurer from liability or reduce the insurance liability (as is the case with life insurance), but in liability insurance, the fault of the insured is one of the reasons why the insurer bears the liability for compensation. A clear understanding of the similarities and differences between them in the application of insurance risk content is helpful to determine the insurance rate and the obligations of the insured in the insurance contract.
In the way of determining insurance compensation, except health insurance or accidental injury insurance, the nature of life insurance is fixed insurance, so once an insurance accident occurs, it will be paid directly according to the insurance amount agreed by the parties to the insurance contract. Its objectivity is strong. On the other hand, property insurance is not always the case. In particular, the insurance compensation of liability insurance is based on the liability of the insured to the third party, which is often ignored in practice. In liability insurance, because the liability and liability compensation itself must be determined according to law, the materials that prove the insured's liability to the third party according to law are often court judgments, mediation books or liability confirmation books made by relevant law enforcement agencies, and mediation agreements reached by both parties voluntarily. In strict accordance with the principles of the Insurance Contract Law, the actual loss of the insured caused by an insurance accident shall be jointly recognized by both parties to the contract. However, if the facts reflected in the above information are wrong or even false, then the chances of the insurer's successful defense are slim. Especially when the liability between the insured and the third party is determined by the court's judgment, the insured may not fully exercise the right of defense against the third party in the lawsuit because the compensation from liability insurance ultimately does not belong to the insured (which is also a negative insurance interest), and sometimes even collude with the third party to actively recognize the amount of compensation that he should bear according to law. It is difficult to guarantee the legality and fairness of the judgment made on this basis. Based on this fact, the terms of the insurance contract issued by the insurer stipulate that the insured has the obligation to inform the insurer to participate in any legal or non-legal procedures to determine the economic compensation liability of the insured to the injured third party and determine the specific compensation amount. The insurer is not responsible for any compensation amount promised by the insured. However, in practice, the insured often asks the insurer to pay insurance compensation based on civil judgment or civil mediation. It is very difficult for the insurer to refuse unfair compensation, and there are obstacles in legal procedures, because the insurer is not a party to the lawsuit between the insured and the third party and has no right to object to the judgment or mediation. In addition, in motor vehicle liability insurance, the liability of the insured is generally determined by the responsibility identification and compensation mediation of the traffic police department, so it is difficult to prevent the insured and the injured third party from colluding with the traffic police law enforcement officers to expand the loss amount in order to defraud the extra insurance money. Relatively speaking, it is unlikely that the insured or beneficiary colludes with a third party to expand losses, and it is easy to be seen through.
Eight, the limitation period of insurance claims is different.
Article 26 of China's Insurance Law stipulates: "The insured or beneficiary of insurance other than life insurance shall not exercise the right to claim compensation or pay insurance money from the insurer within two years from the date of knowing the occurrence of the insurance accident." The right of the insured or beneficiary of life insurance to ask the insurer for payment of insurance benefits is extinguished within five years from the date of knowing the insured accident. Thus, the limitation of claim for property insurance is two years from the date when the insured knows the accident, which is different in life insurance contracts. According to different types of insurance, the limitation of claims for life insurance is 5 years, and the limitation of claims for other life insurance except life insurance is 2 years. Here, we should pay attention to the difference between the limitation of insurance claim and the limitation of litigation: the limitation of insurance claim is the time limit for the insured or beneficiary to claim compensation from the insurer for the losses caused by the insurance accident. The limitation of action is the effective period for the obligee to request the people's court to protect his rights according to law. It can be seen that during the limitation of claim, the insured or beneficiary claims private relief from the insurer, while during the limitation of action, the obligee brings a lawsuit to the people's court, which belongs to the category of public relief; The limitation of claim is governed by the provisions of the insurance law, and the limitation of action is governed by the provisions of the general principles of civil law; The limitation of claim is calculated from the date when the insured or beneficiary knows that the insured accident has occurred, and the limitation of action is calculated from the time when the insured or beneficiary knows or should know that his rights have been infringed. Therefore, in the practice of insurance law, we should pay attention to the application of two restrictions. The author believes that once the insured or beneficiary claims from the insurer, the claim limitation right has been exercised, and according to the nature of the quality elimination period, the claim limitation expires when the claim right is exercised. If there is a dispute with the insurer in the claim, the limitation of action shall be adjusted, that is, from the date when the claim is disputed, it shall be regarded as the date when the rights of the insured or beneficiary are infringed, and the limitation of action for insurance disputes shall be calculated from that date.
In short, to understand any insurance system, we must first understand the business purpose of the insurance industry itself and its principles of survival and development, so as to seek a fair and reasonable consideration relationship between the insurer and the insured and clarify the rights and obligations of both parties. At present, China's insurance industry itself is not mature enough, and the relevant supporting systems and measures are not perfect. Defining the difference between property insurance and life insurance is not only to clarify the relevant insurance relationship in practice and standardize the behavior of the insurance industry, but also to contact the relationship between insurance theory and insurance industry, rules and regulations, guidance and guidance, and promote the development of China's insurance industry and the improvement of legal regulation and legal guarantee.