Model essay on law 1: legal analysis of three kinds of automobile loan insurance disputes; Automobile consumption loan guarantee insurance refers to a commercial insurance behavior in which the borrower, as the insured, pays the insurance premium to the insurer according to the contract after the borrower applies for an automobile consumption loan from the lender, and the insurer is liable for the property losses caused by the borrower's failure to perform the loan contract agreed in the contract. This business started from 1997 and flourished in a short time, which promoted the prosperity of motor vehicle insurance market. However, due to the long insurance period of automobile consumption loan guarantee insurance, not only the objective risks will be gradually released in the operation, but also with the continuous occurrence of insurance accidents and the deepening of claims investigation, there are more and more problems and disputes left over by this business management. Combining theoretical research with business practice, the author makes a legal analysis of three kinds of disputes that may be involved in the automobile consumption loan guarantee insurance business.
1. Cases in which the bank or insurer sued the buyer and guarantor in the name of the bank after the buyer owed money and before the insurer paid the bank losses.
When the car buyer owes money and constitutes an insurance accident, the bank has the right to claim rights from the car buyer and guarantor according to the loan contract, and also has the right to claim compensation from the insurer according to the insurance contract. In this case, unless the insurance clause or cooperation agreement clearly stipulates that the insurer has the right of first appeal, the insurer has no right to ask the bank to sue the car buyer and guarantor first. At the same time, without giving the insurer the right of defense, in order to prevent the bank from abusing the right of appeal after the buyer owes money, even if the bank voluntarily chooses to sue the buyer and the guarantor, the legal fees are generally not within the scope of insurance compensation without consulting the insurer.
Therefore, after an insurance accident, banks and insurers should first pay attention to common interests. From a practical point of view, if the buyer is maliciously in arrears or unable to repay, and it is really impossible to recover the money through collection or agreement to dispose of the collateral, and the buyer or guarantor has executable property and can take property preservation measures, an agreement should be reached as soon as possible, and the insurer should bear the litigation and other expenses to sue the buyer and guarantor in the name of the bank and take property preservation measures as soon as possible.
Second, the case of the bank suing the insurer.
The case that the bank sues the insurer is the most common dispute in the automobile consumption loan guarantee insurance. The focus of the dispute is whether the insurer should bear legal responsibility. In practice, there are two types of disputes that are more controversial and difficult to handle:
(1) Cases suspected of fraud
Suspected loan fraud, generally, the borrower and the car dealer alone or in collusion, take the form of providing false materials to fabricate the car buying and selling relationship, borrowing money from a number of banks for the same car, and illegally taking loan cash for other purposes. For the purpose of illegal possession. In such cases, some car buyers forged, altered or bought or borrowed other people's ID cards to buy cars, some provided false proof of property status, inflated the car price, and some were virtual car buyers, guarantors or mortgaged property. Therefore, to judge whether the insurer should bear the insurance liability, we should focus on the following aspects according to the actual situation:
1. Insurable interest. Article 12 of the insurance law stipulates? The insured of property insurance has an insurable interest in the subject matter insured at the time of the insured accident? ; Therefore, for the business suspected of fraud, if the lender does not buy a car, the insurer may, according to Article 48 of the new Insurance Law? If the insured has no insurable interest in the subject matter insured, he shall not claim compensation from the insurer? And refused to pay compensation.
2. The bank's obligation to review the loan and the insured's truthful disclosure. In view of the automobile consumption loan guarantee insurance business suspected of fraud, the insurer usually takes the bank's failure to review the loan and the insured's failure to tell the truth as the defense reason for not taking responsibility according to the provisions of the General Rules on Loans, the Measures for the Administration of Automobile Consumption Loans and the Insurance Clauses. The author believes that although the General Rules for Loans and the Measures for the Administration of Automobile Consumption Loans clearly stipulate that the bank's loan review obligation is independent and the bank has the obligation to conduct credit investigation prudently, the clauses usually stipulate that the insurer shall not be liable for compensation when the loan contract is invalid or cancelled due to the fault of the insured, or when the insured fails to fulfill the obligation of truthful disclosure; However, in practice, the legal consequences should still be judged according to the specific circumstances of the bank's negligence in reviewing the loan and the policyholder's failure to fulfill the obligation of truthfully informing.
As mentioned above, the specific situations of auto consumption loan guarantee insurance suspected of fraud vary widely, but whether it is empty car loans, inflated prices or other situations, its basic feature is that the loan application materials contain false information. Since there is false information, it is bound to show that there are different degrees of negligence in the process of bank loan review, and the insured conceals the real situation during the insurance process.
In view of the insurer's defense against the negligence of bank loan review, the conditions under which the insurer is not liable should be limited to the bank's fault, not including minor negligence, and the bank's fault should not be presumed by false information. Especially when the car buyer buys or borrows other people's identity documents, the author thinks that it should constitute an agency by estoppel and the loan contract is established. An insurer cannot be exempted from insurance liability on the grounds that the bank fails to fulfill its credit reporting obligation or the parties have not agreed on the expression of will.
In view of the insurer's argument that the insured did not tell the truth, the author thinks that although the automobile consumption loan guarantee insurance is right? Maximum integrity? Higher requirements, the insured's obligation to tell the truth should be based on? Limited notice? For the principle, at the same time, we should gradually establish a limited notification method of written inquiry. On the premise of limited disclosure, if the applicant fails to fulfill the obligation of truthful disclosure, the insurer has the right to refuse to bear the liability for compensation according to the provisions of the insurance contract. In addition, in the automobile consumption loan guarantee insurance, because the insured and the insured are separated, and the insured is the right holder of insurance claims, the fulfillment of the obligation of informing the insured and the investigation of the insured's relevant situation are directly related to the risk of the insured's rights and interests.
According to the insurance law, it is the insurer's legal obligation to select the insured and investigate the relevant situation, and the performance of this obligation is also related to the performance of the insurance contract. Therefore, it is suggested that the insurer's review obligation should be combined with the bank's credit assets review through consultation between the two parties, or the bank's credit review should replace the insurer's underwriting review. The author believes that the legal basis of bank credit investigation and insurer's underwriting review obligation is different. The former is based on the Commercial Bank Law and the General Principles of Loans, while the latter is based on the Insurance Law. Their professional emphases are also different, so they cannot be confused or replaced. On the contrary, they should be strengthened separately.
(2) Insurance liability disputes caused by the failure of the bank as the insured to fulfill the collection obligation, not to inform of the increased risk, and not to continue to insure vehicle insurance on behalf of the insured.
1. According to Article 32 of the General Rules for Loans? The lender shall issue a notice of repayment of principal and interest to the borrower before the short-term loan expires 1 week and the medium-and long-term loan expires 1 month? The lender shall promptly issue a notice of overdue loan collection, and do a good job of overdue loan principal and interest collection. Insurance clauses usually stipulate that the insured has the obligation to collect arrears and collect records.
2. The Insurance Law stipulates that the insurer shall be informed in time when the risk of the subject matter insured increases, and the insurance clauses usually stipulate in the obligations of the insured that if the insured finds that the applicant has potential non-repayment risk or may lead to an increase in the risk of the insurance contract, he shall notify the insurer and assist in reducing or eliminating the risk.
3. Automobile consumption loan guarantee insurance In order to avoid the risk that the vehicle purchased by the loan can't be repaid due to unexpected losses, the insured is generally required to take out vehicle insurance such as loss insurance and theft insurance. The insurance clauses usually stipulate that if the insured fails to renew the above vehicle insurance on time, the insured will take out insurance on his behalf. If the bank violates the obligations of the insured stipulated in the above insurance law or insurance contract, the insurer has the right to claim not to bear the liability for compensation or to reduce the liability for compensation according to the legal provisions and the contract.
Three, the insurer paid the bank losses, to recover from the car buyers and guarantors.
After fulfilling the insurance liability, the insurer has the right to recover from the buyer and guarantor, but the author thinks that this kind of recovery is not the same as insurance subrogation. Insurance subrogation right? Based on the principle of insurable interest, the system of assignment of creditor's rights is recognized to prevent the insured from obtaining double interests? It is generally believed that the essence of insurance subrogation is the concrete application of civil subrogation system in the field of insurance law; The purpose of this system is not to let the insured get additional benefits because of insurance, nor to let the wrong third party escape its legal responsibility for compensation.
Article 60 of the new Insurance Law stipulates? Where 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 compensation amount from the date of compensation to the insured? . It can be seen that the insurance subrogation right is the subrogation right of the insured to the third party; Therefore, some people think that because the insured in the guarantee insurance contract is the debtor, whether it repays the loan or fulfills its obligations according to the agreement directly determines whether the insurance accident occurs, and it has no direct relationship with the third party, so there is generally no accident caused by the fault of the third party, and of course there is no insurance subrogation right. The author believes that this view is a misunderstanding, and that the insurer's right of recourse is equal to subrogation without distinguishing the specific circumstances of the insured accident.
(1) The applicant has a malicious breach of contract due to his subjective will.
The risks covered by the automobile consumption loan guarantee insurance are credible, which is related to the insured's subjective desire to fulfill the debt. As far as the insurer is concerned, it underwrites the credit on the basis of trusting the honest attitude of the insured. It is impossible to understand the subjective world of the insured through general inquiries and notices, and the subjective will of the insured may change at any time. Therefore, once an insurance accident occurs due to the subjective malice of the insured, that is, the uncertainty risk of the insurer's insurance will inevitably occur, the insurer will have to pay the insurance premium for the occurrence of the lucky rate, and will not enjoy the right of subrogation because of the lack of third-party liability factors. However, the insurer does not enjoy the right of subrogation to the third party, which does not mean that it cannot recover from the applicant (debtor) or guarantor; After the insurer has fulfilled the insurance compensation responsibility to the insured, the insured no longer enjoys the creditor's right within the compensation amount, and the creditor's right and the corresponding security right are transferred to the insurer. In practice, the insurer and the insured will also sign a transfer of rights and interests.
(2) A bona fide breach of contract that affects the performance ability due to infringement by a third party.
The insured suffers from infringement or breach of contract by a third party, which reduces or damages the insured's ability to perform debts to creditors, thus causing an insurance accident, which is generally called bona fide breach of contract. In this case, what is the essence of insurance subrogation because the insured can finally get the relief of losses from the third party? The principle adopted in favor of the insurer or the insurer in order to prevent the insured from getting more than full compensation? (Castellainv case, Judge Brett. Preston in 1883), so the author thinks that the insurer can recover from the insured (debtor) and the guarantor at this time, and can also exercise the subrogation right to recover from the responsible third party.
(3) breach of contract due to changes in objective conditions
In addition to subjective factors, some objective events, such as unforeseeable, insurmountable and unavoidable force majeure such as earthquake, typhoon, flood, tsunami, war and armed conflict, as well as unexpected events that are not intentional or negligent by the parties, may also cause the insured (debtor) to fail to perform, fail to perform or fail to fully perform the repayment obligations. For the insured accidents caused by force majeure or accidents, the insurance contract is based on the interests of the applicant and the insured, and generally stipulates that the insurer shall bear the insurance liability without recourse from the insured. At the same time, because there is no fault of a specific third party, there is no subrogation right of the insurer in such cases.
Model Law 2: Theoretical Research on Legal Culture I. Connotation of Legal Culture
Since the late 1980s, with the development of China's cultural theory, legal culture? The introduction of China from the West has attracted the attention of scholars in the fields of jurisprudence, comparative law and legal history in China. Very promising, a trend of legal culture? . However, due to the lack of clear definition and in-depth research on the connotation of legal culture in academic circles, legal culture has not yet formed a systematic theory, let alone an independent discipline. ? Legal culture? This concept was first developed by American scholar Lawrence? Friedman put forward in the article "legal culture and social development", which refers to? Values and attitudes closely related to the legal system determine the position of the legal system in the whole social culture? . And cottrell, the first British jurist, thought in the article Legal Culture and Social Development? Legal culture? It is only suitable for observing the legal concepts of early civil society, small communities and specific professional groups, and? Legal ideology? Equivalent to. Some scholars regard legal culture as a legal tradition or legal interpretation method. Generally speaking, legal culture refers to the universally recognized and stable legal values, ideas and theories rooted in the historical and cultural process of a nation or country's long-term common life, and is the behavior mode and guiding norm of people's legal activities.
Second, the status quo and problems of legal culture research in China.
First of all, China's legal culture focuses on combining other legal subjects to study a certain problem, but lacks the research on macro-theory. Judging from the domestic research results in recent years, the current domestic research on legal culture mainly focuses on: (1) combining the legal history to study China's traditional legal culture, including etiquette, non-litigation, natural law and law. , accounting for the vast majority; (2) Study legal culture by combining comparative methods; (3) Carry out local research to study the legal culture of Tibetan, Yi and Yao minorities. However, the research on the theoretical basis and system of legal culture itself is obviously insufficient. Secondly, legal culture has not clarified the relationship with some disciplines, especially legal disciplines, thus affecting the development of its own disciplines. With the development of society, this interdisciplinary subject is becoming more and more obvious and important. The premise of this interdisciplinary development is the cooperative relationship between the corresponding disciplines, not the simple inclusion relationship. Moreover, the interdisciplinary research of legal culture in China only focuses on sociology of law and legal history, and pays insufficient attention to other disciplines. At present, the research on law and data, digital age, engineering, drama, mathematics and artificial intelligence has become a new development trend. Finally, China scholars have some misunderstandings about the theoretical basis of China's modernization of legal culture. Many scholars believe that it is the path of China's legal modernization to break the dual structure of institutional legal culture and conceptual legal culture, and to integrate them, so that the conceptual legal culture can be transformed into institutional legal culture. But after in-depth analysis, we can find that the system behind this concept is a kind of legal monism, that is? Tending to echo the dominant view of governing the country according to law? , is it? Driven by modern scientism, the whole legal definition has been integrated by legislation? , is it? Only legal? 、? Modern? 、? Grand narrative? . But as far as China's modernization process is concerned, we are more right? Reflection on modernity, more concerned? Postmodern indigenous knowledge? The existence of this diversified pattern. Our starting point is no longer looking? Conflict? , but look? Existence? , is no longer unified? Integration? Instead, we should study the integration of interaction on the premise of independence, so as to meet the needs of social reality in China during the transitional period.
Third, the theoretical basis of legal culture research Legal pluralism
Mark? Wayne? Hawke delivered a keynote speech at the 23rd World Congress of Philosophy of Law, discussing the unity and diversity of French culture in the process of European integration, and pointing out that under the background of globalization, due to? In the process of increasingly strong interaction between cultural traditions in different regions, strong cultural traditions are often in a dominant position, and some elements of relatively weak cultural traditions are often expelled and strangled politically, economically and militarily? Therefore, we strive to protect some traditions and economies in this area. Improve the legal status of late-developing countries? It is very important to establish the pluralistic system of national law, the pluralistic legal norms within the country and social parts, and the ternary legal structure of European Union law. In fact, this diversity of legal culture, as we mentioned earlier, is an inevitable choice for the development of legal culture in modern society. This pluralism of legal culture is the theoretical basis for studying China's legal culture. Among the scholars who advocate legal cultural pluralism, the most influential is the official history of Chiba in Japan. The core point of his theory is that there is a complex interaction between formal law and informal law, which are national laws, and various concepts that constitute a pluralistic legal system should be used to conceptualize and analyze the legal premise containing pluralistic values and ideas. The official history of Chiba analyzes and demonstrates the national law, transplant law and inherent law under the pluralistic legal system in different parts of Asia, and puts forward the original concept of legal culture? Operational definition of legal culture? . The core of his legal culture theory of pluralistic legal system can be summarized as two opposites under three binary distinctions, which specifically refers to? Formal law? Informal law? ,? Transplant method? Internal law? ,? Rules and regulations Legal premise? Two opposites of these three aspects.