1. The socialist market economy needs a sound insurance legal system. The normal operation of the socialist market economic system and the modern enterprise system urgently needs to establish an insurance market, and a sound insurance market needs a sound and reasonable insurance legal system. Therefore, the issue of insurance legislation is a major issue related to the orderly operation of China's socialist market economic system.

since the reform and opening up, in order to restore and develop China's insurance industry, the legislature has successively promulgated and revised the Economic Contract Law of the People's Republic of China, the Regulations on Property Insurance Contracts of the People's Republic of China and the Interim Regulations on the Administration of Insurance Enterprises. However, the current situation of China's insurance legislation is not commensurate with the development of insurance industry. The level of insurance legislation is low and lacks authority, and the insurance legislation is not perfect and scientific in content and system, which can no longer adapt to the development of market economy.

The Insurance Law of the People's Republic of China, which has just been promulgated, is formulated to meet the needs of the socialist market economy. It is the first insurance basic law in new China, which has made a breakthrough in the development of China's insurance legal system both in content and system structure. Its implementation will undoubtedly make China's insurance market standardized and orderly, thus promoting the sustained, rapid and healthy development of China's insurance industry.

Second, the division between commercial insurance and social insurance:

The simplification of the scope of application of insurance law is due to the reality in the current situation of China's insurance system: commercial insurance and social insurance are indistinguishable, and the phenomenon of confusion and cross-operation is prominent; At the same time, China's previous insurance laws and regulations have never defined and defined the concept and extension of insurance, and the scope of application of insurance law has not been clarified, which leads to the lack of standardization and adjustment of the cross-business behavior of commercial insurance and social insurance in the insurance legal system.

insurance, according to its nature, can be divided into two categories: commercial insurance and social insurance. These two types of insurance businesses with different nature and functions cannot be mixed. Its theoretical basis can be analyzed by using new institutional economics. Insurance system can be regarded as an effective system to allocate "stable" resources, and the paid allocation process of "stable" resources is also the process of supplying insurance goods. The insurance system can provide two kinds of insurance items, one is "public" (social insurance services such as unemployment, pension and work injury); The other is "private" (property and life insurance services of residents and enterprises).

the supply and demand of private insurance products is a process of personal choice. Everyone can freely choose different types of insurance products from insurance companies according to their own risks and their pursuit of stable utility. This process also reflects the market trading rules. Private insurance products with unexpected losses and injuries are provided by the market. On the one hand, it can save organizational costs and reduce external effects. On the other hand, it is also conducive to the balance of supply and demand of insurance products. The supply of private insurance goods is competitive. Whoever provides the goods with higher quality and better protection will vote for them. The supply of public insurance goods is a public selection process. In social and economic life, such as unemployment relief, old-age security, industrial injury insurance, etc., cannot be completely allocated through the market, and people are generally reluctant to provide protection for possible unemployment in the future by paying fees in advance when they are employed; Besides, if you pay the fee, you may not be unemployed, and there will be external economic benefits, because after all, some people will be honored. If you adopt the market allocation method for such insurance products, no one will pay, so the government must come forward to adopt a centralized and compulsory way (taxation or overall planning) and establish a social insurance system. It can be seen that social insurance is a social security system in which the government takes the initiative to use external economic benefits to allocate "stable" resources. Obviously, commercial insurance and social insurance are two different subsystems in the insurance system. Commercial insurance provides private insurance items, while social insurance provides public insurance items. Commercial insurance providing private insurance goods is a kind of enterprise behavior, which embodies the principle of market transaction and the law of competition; Providing social insurance for public goods under inspection is a kind of government behavior, which is mandatory and social policy; The function of commercial insurance is to protect the property or person of enterprises and citizens from accidental loss or injury; Social insurance is to protect the basic life of workers when they lose or temporarily lose their ability to work. Based on this, we can draw a conclusion that the supply and demand modes of private insurance products and public insurance products are different, and any confusion and substitution between them can only lead to the loss of the total social effect and make the allocation of precious "stable" resources ineffective.

therefore, the reform of the insurance system requires that the existing upside-down logic of institutional arrangements be reversed again, and the chaotic and overlapping order be straightened out. That is, it is necessary to purify the functions of commercial insurance companies with China People's Insurance Company as the main body to provide only private insurance products, and at the same time set up a perfect government agency to handle public insurance products. It is necessary to legislate separately for two types of insurance, namely, the Commercial Insurance Law and the Social Insurance Law, and reasonably define the scope of application between them. In fact, the insurance laws of all countries in the world are only applicable to commercial insurance, and social insurance is separately formulated by the state. When legislating in various countries, social insurance legislation is usually not classified as personal insurance law. For example, Japan's "Six Laws" classifies social insurance legislation as "social law". Mr. Li Jiahua, a famous scholar of insurance law in China, also pointed out clearly: "Some people think that the adjustment object of insurance law should include social insurance and other legal relations with social security as the content. We believe that social insurance does not belong to the adjustment scope of insurance law." [1]

China's newly promulgated insurance law has made clear provisions on this issue. First of all, from the definition of insurance, the insurance mentioned in the insurance law refers to "commercial insurance behavior", which clarifies the adjustment scope of insurance legal system, makes a reasonable division between commercial insurance and social insurance, and determines the nature of "commercial insurance" of insurance. Secondly, the principle of "monopoly" has been defined in the qualification of the business subject of commercial insurance business. Commercial insurance business can only be operated by insurance companies established in accordance with the insurance law, and no other units and organizations, including labor and civil affairs departments, are allowed to operate commercial insurance business, thus prohibiting non-horizontal competition in insurance and putting an end to the phenomenon of "society being good at doing insurance". Finally, from the business scope, the principle of "prohibition of concurrent employment" is stipulated, that is, the business scope of an insurance company is approved by the financial supervision and management department, and the insurance company can only engage in insurance business activities within the approved business scope, thus positioning the function of a commercial insurance company in the operation and service of commercial insurance.

third, from separation to merger; The integration of insurance law system structure

Looking at the development history of insurance legal system all over the world, the content has gone through a development process from private law to public law. The traditional insurance law is an important part of commercial law in theory. It belongs to the category of private law, and the content of insurance law is insurance contract law.

since the 193s, in view of the profound changes in modern social and economic life, state interventionism has gradually replaced laissez-faire, which has a positive impact on the development of legislation and law. It has implemented a large-scale public law intervention policy in the field of commercial law, including insurance law. "The typical way is to import criminal law, social law and other public law norms related to economic activities into traditional commercial law, which makes commercial law itself have public law characteristics." Dennis. When talking about this legal development process, Trent once pointed out: In modern commercial practice, state intervention is realized by contracting the public law rules in commercial law. Therefore, the debate on whether commercial law is self-contained can no longer be confined to the scope of private law, or only limited to its comparison with civil law. "[2] The intrusion of public law into commercial law is manifested in the insurance legislation by" urging "the emergence of the insurance law and promoting its development." On the basis of the original insurance organization, the insurance lawmaker stipulates the regulations of public law insurance supervision such as the approval and registration of the establishment of insurance enterprises, the restrictions on business scope, and the restrictions on the establishment and application of insurance enterprises. "[3] Modern insurance law has broken through the traditional private law framework of insurance law and added a new" member "-insurance law. In this way, the modern insurance law has the characteristics of duality in content. Zheng Yubo, a scholar in Taiwan Province, pointed out: "Insurance law is the general name of all laws and regulations that take insurance as the law object, including public insurance law and private insurance law. The so-called public insurance law is the laws and regulations of public insurance, such as the law of insurance supervision; The so-called private insurance law is the private insurance-related laws and regulations, such as the insurance organization law and the insurance contract law. "[4] That is to say, the modern insurance law mainly involves two aspects in content: one is the insurance contract law, which mainly adjusts the relationship between insurance parties; The second is the insurance law, which mainly stipulates the supervision and management relationship between the government and insurance companies.

Although most countries in the world have established insurance law systems through the two pillars of insurance contract law and insurance law. However, in the legislative system, there are two different legislative models: one is to legislate separately, that is, the insurance contract law and insurance legislation are two separate laws; The second is to merge the two contents into one law.

China's insurance legislation for many years has also adopted the separation system of insurance contract law and insurance law, and has successively promulgated two separate regulations, namely, the Regulations on Property Insurance Contracts and the Interim Regulations on the Administration of Insurance Enterprises. So under the condition of socialist market economy, what should be the structure of China's insurance law? Is it a separatist style or a merger style? The socialist market economy enables the market to play a fundamental role in resource allocation under the macro intervention of the state, and the insurance market, as an important part of it, must be an organic unity with active market subjects, a unified and open market system and a macro-control system with indirect regulation as the mainstay, just like the modern market economy. Therefore, insurance legislation should follow the objective law of insurance socio-economic relations, and the structure of insurance law should reflect the systematic structure of modern insurance market, specifically, it should be a comprehensive method including insurance contract law, insurance organization (enterprise) law, insurance business behavior law and insurance supervision law, from separation to integration. What's more, insurance contract law and insurance law are not the relationship between parent law and sub-law, common law and special law, but two laws of the same thing, which can be combined into legislation. Therefore, moving from division to merger is a major change and improvement of the traditional insurance legislation, and its significance lies in seeking the integrity of the insurance law and facilitating its implementation.

China's newly promulgated insurance law adopts a consolidated legislative style, including general provisions, insurance contracts, insurance companies, insurance business rules, supervision and management of the insurance industry, insurance agents and brokers, legal liabilities and supplementary provisions. In this way, from the perspective of normative function, it integrates behavior law and organization law, and integrates insurance contract law, insurance organization law, insurance behavior law and insurance supervision law, which has comprehensive characteristics and is conducive to giving full play to the overall normative function of insurance law.

fourth, imbalance and correction: redistribution of rights and obligations of both parties to insurance contracts

the progress of China's insurance law in insurance contract law is not only reflected in the improvement of content, but also fills the gap in life insurance contract law, and more importantly, re-establishes the distribution criteria of rights and obligations of the parties to insurance contracts.

the insurance contract law is a legal norm to allocate the rights and obligations of the insurance parties. In the insurance contract law, if "the boundaries of rights and obligations are properly determined and meet the possibilities provided by social material living conditions, it can bring social stability and development; On the contrary, it will lead to political turmoil, delay or even undermine the development of society. " [5]

The insurance contract relationship reflects the insurance commodity trading relationship between the insured and the insurer, and the reason for its emergence and development is the existence of risks. In the process of signing an insurance contract, the insured wants to pass on the risk, and he is most aware of the dangerous situation of the subject matter insured, while the insurer, as the risk bearer, cannot fully understand the specific situation of each subject matter insured. Therefore, the insurer and the insured are in a disproportionate position in measuring and estimating the degree of danger of accidents. The degree of realization of rights is closely related to the status of the parties. Therefore, in the case that the status of the insurer and the insured is different, it is necessary to "rely on the corresponding measures provided by the legal order to protect the disadvantaged groups to offset the serious impact of existing inequality." [6] Specific to China's insurance contract law, it is to limit the principle of freedom of contract and use the insurance contract law to reverse this unequal fact. In China's insurance contract law, the restrictions on the principle of freedom of contract are mainly manifested in two aspects: first, protect the insurer in a weak position when signing the contract, and use legal norms to determine its dominant position in the insurance contract. Give it the right to formulate standard contract terms under the condition of fully considering social interests and self-interests, while the insured can only agree or disagree with the insurance contract terms; If it is necessary to modify or change some contract terms, you can only choose the additional terms prepared by the insurer in advance. Second, in order to facilitate the insurer to organize social and economic activities more reasonably, the insurer can be given the right to supervise the insured. For example, in maintaining the safety of the subject matter insured, the insurer has absolute control over the applicant, and the insurer will not bear the insurance liability if the applicant does not obey the supervision and control of the insurer.

at the same time, among the insurance parties, the insurer manages risks, accumulates funds and provides "stable" resources to the society, which plays a great role in escorting the socialist market economy and solving problems for people's lives. The insurer's operating conditions are not only related to the enterprise's own interests, but more importantly, it will have a significant impact on the interests of the whole society. In fact, the interests of insurers are closely related to social interests. Therefore, when formulating the insurance contract law in China, we should proceed from protecting social interests and strengthen the rights of insurers as representatives of social interests when stipulating the rights and obligations of insurance parties. Because the insurance contract is the biggest contract of good faith, and "the principle of good faith stands on the principle of public order and good customs, the principle of prohibition of abuse of rights, the principle of change of circumstances, the principle of safety of law, etc., and the powerful force of the principle of good faith is listed in one of all general terms." [7] Therefore, the principle of good faith, as the highest legal norm, should be used in the insurance contract law first to show the will of legislators to safeguard the rights of the representatives of social interests, that is, insurers. As Mr. Shi Shangkuan said, the principle of good faith should not be limited to the contest between the interests of both parties. The principle of good faith involves two interest relationships: the interest relationship between the parties and the interest relationship between the parties and the society. The purpose of the principle of good faith is to balance these two interest relationships. In the interest relationship between the parties, the principle of good faith requires respecting the interests of others and not harming others. When the interests of the parties are out of balance under special circumstances, adjustments should be made to restore the balance of interests, thus maintaining a certain social and economic order. In the interest relationship between the parties and the society, the principle of good faith requires that the parties should not harm the interests of the third party and the society through their own civil activities, and must exercise their rights in a way consistent with their social and economic purposes within the legal scope of rights. [8] Therefore, the important function of the principle of good faith in China's insurance contract should be to coordinate the society accordingly.