未事先告知投保人的迟延生效条款不生效（The term of entry into force of the policy is not effective without prior notice to the applicant）

1、未事先告知投保人的迟延生效条款不生效（The term of entry into force of the policy is not effective without prior notice to the applicant）The term of entry into force of the policy is not effective without prior notice to the applicantAuthor: Li Zhe release time: 2010-09-01 12:38:07caseThe applicant of a transport compa

2、ny at 15:32 on June 18, 2008 to a life-insurance company into the insurance, the insurance company at the time for the transportation company invoice and insurance policy, but the policy is "print the insurance period at 0:00 on June 19, 2008 until June 18, 2009 when only 24". Half an hour

3、 after the policy issued in June 18, 2008 16 9, the traffic accident caused several million loss to the victim, the transport company claims after the claim to the insurance company, the insurance company to "contract of the insurance period is at 0:00 on June 19, 2008 until June 18, 2009 when

4、only 24, the accident occurred when the contract is not in operation" refused compensation. The transport company to court.divergenceFirst opinion: the first paragraph of article forty-fifth of the contract law stipulates: "the parties may stipulate the conditions for the validity of the c

5、ontract.". A contract with the conditions of entry into force shall come into force upon completion of the term." The forty-sixth article states: "the parties may stipulate the time limit for the validity of the contract.". The contract with the term of validity shall come into e

6、ffect upon the time limit." The terms and conditions stipulated in the contract of this case are not established, and the insurance company shall not be held responsible for the failure of the contract.The second opinion: the insurance company should bear the responsibility. The reason is the p

7、laintiff at 15:32 on June 18, 2008 to pay the premium, the insurance company issued invoices and the issuance of the policy, this insurance contract has been established and effective as agreed to delay the validity period, caused by the "insurance blank period", contrary to the spirit of

8、the legislation of road safety law, the contract should be invalid; (2) is an insurance contract the typical format of the contract, the insurance company the insurance contract provides for a delay is equal to the effective date of accident liability claims should be exempted from the entry into fo

9、rce of the delay period, according to the contract law article fortieth standard terms with the fifty-second article of this Law and the provisions of article fifty-third of the cases, or provide the standard terms from its responsibilities, increase each other the other main responsibility, excludi

10、ng rights of the invalid provision "the provisions of the delay clause should be void; (3) attached to the entry into force of the "Conditions" refers to the fact that the future is uncertain, effective time period in the "period" refers to the fact that the period of the fu

11、ture, in this case "since at 0:00 on June 19, 2008 does not belong to into a conditional clause, and does not belong to the effective time period clause, so no special restrictions of equals, insurance the company is not exempted from liability; (4) the insurance contract is the format of the c

12、ontract, the contract terms, the provider shall be in a reasonable way to draw their attention to the insurance company that issued the policy and indicate the delay period of insurance, the clause is not established, the insurance contract shall be issued since the policy is in force on June 18, 20

13、08 at 15:32.trialThe trial, the insurance contract is the format of the contract, the contract in advance delay insurance period set by the insurance company, is exempt or restrictive clauses, the insured does not clearly inform and request the other party to pay attention to, and the violation of t

14、he mandatory provisions of the law, the contract terms should be invalid, should be from the insurance company issued the policy at 15:32 on June 18, 2008 came into effect in the accident, after the commencement of the contract, the insurance company should bear the responsibility. The insurance com

15、pany was sentenced to compensation.The second trial that the insurance company unilaterally provisions of clause delay, essentially creating a relief, on the responsibility of the insurance company shall be invalid, and the insurance company did not provide evidence that its terms have been describe

16、d as the duty of disclosure, the clause does not produce effect. He dismissed the appeal and upheld the original mentThe author believes that the verdict is correct, but some reason and disagreement among views, not entirely agree with the author, the legal issues involved are described:I

17、. whether the delay period in the compulsory insurance contract is invalid because it violates the mandatory provisions of the lawThe second opinion, the case the plaintiff at 15:32 on June 18, 2008 to pay the premium, the insurance company issued invoices and the issuance of the policy, this insura

18、nce contract has been established and effective as agreed to delay the validity period, caused by the "insurance blank period", contrary to the spirit of the legislation of road safety law, the contract should be invalid. The author believes that this view is far fetched. First, the compul

19、sory insurance provisions of the road traffic safety law is a direct constraint on the road vehicles, no insurance driving, but not directly binding to the insurance contract, if no insurance is punished, the vehicle was detained, fined, the parties agreed to delay the validity period, namely that t

20、he choice of stops right in the blank period in the blank period spent again on the road, does not violate the law;Second, as in the pre compulsory insurance contract has not yet expired under the condition of the advance purchase of compulsory insurance, it can delay the effective date agreed, the

21、next convergence during the contract period and contract period; third, the contract law gives the parties to the contract with special conditions for the entry into force of the rights of compulsory insurance regulations "mandatory provisions no sign is effective," road traffic safety law

22、 and insurance law also prohibits the parties did not set special provisions for the entry into force of the. Therefore, there is no direct logical relationship between the effective period of the contract and the traffic safety law in the compulsory insurance contract.Two, does the delay in the ter

23、m of validity mean that the insurance company intends to absolve itself from liability and thereby render the effective provisions of the delay invalid?The second view is that the insurance contract is a typical format of the contract, the insurance company the insurance contract provides for a dela

24、y is equal to the effective date of accident liability claims should be exempted from the entry into force of the delay period, according to the contract law article fortieth standard terms with the fifty-second article of this law and the provisions of article fifty-third of the cases, or provide f

25、ormat the terms of a party is exempt from liability, increasing their responsibilities, the right to exclude each other primarily of the invalid provision "the provisions of the delay clause should be void. The author believes that the insurance contract is a kind of aleatory contract, although

26、 the effective date of delay, but also the effectiveness of deadline delay, the insurance company did not shorten the period of insurance, accident insurance is random, who can not tell when there will be accidents, such as the accident occurred in the effect of delay period, the insurance company t

27、o assume responsibility for the claims. Such as identification of the invalid provision, shall bear the responsibility of the insurance company, did not reduce the responsibility of the insurance companies, aggravated the insured liability? So that the effective date of the delay means that the insu

28、rance company intends to release its own responsibility and delay clause should be invalid "point of view are illogical, made partial mistakes, it is difficult to convince the people.Three whether the term of validity of the delay is conditional or time limit?The second view is that, in this ca

29、se, the term of insurance, since June 19, 2008, is neither a clause attached to the term of entry into force nor a clause with the term of entry into force, but the reason is not stated. The author believes that both the conditional and the time limit are the limits of the effectiveness of the contr

30、act, there are certain reasons exist, we should respect the meaning of the party's self-control. In fact, there is no essential difference between the two, only the form of difference. The term "condition" refers to the uncertain fact in the future. As a result of uncertainty, it is im

31、portant to take the fact as the premise of effective. The term "time" refers to the time when a fact is determined, and because the occurrence of the fact is foreseen, therefore, the contract with the fact that it is taken as the effective premise is only a matter of time, so it is called

32、a term. Its essence is conditional on the occurrence of a fact. Facts are divided into actions and events, actions are divided into legal and factual actions, events are divided into natural events and social events. The excess of time is a natural event that is not transferred by man's will. It

33、 is a certain fact. Therefore, in this case, the insurance policy shows that the insurance period is at 0:00 on June 19, 2008, which is a typical time limit.Four whether the delayed effective clause is established or if there is an accident within the late extension, should the insurance company cla

34、im compensation?The second view is that the insurance contract is the format of the contract, the contract terms, the provider shall be in a reasonable way to draw their attention to the insurance company that issued the policy and indicate the delay period of insurance, the clause is not establishe

35、d, the insurance contract shall be issued since the policy is in force on June 18, 2008 at 15:32. I think this is the right point of view. In this case, the term "insurance period from June 19, 2008 zero till 24 June 18, 2009" is clear in meaning and there is no dispute about understanding

36、 between the two parties. There is only a dispute of validity. Since the insurance contract is a standard contract and is a more specialized one, it should give full notice to the restrictive clause and format contract. In case of any dispute arising out of the duty of prompt notice, an explanation

37、shall not be given to the party who provides the format clause. This is because the format of the contract to provide a better understanding of the format of the contract, the contract is relatively strong, do not understand opposite party, in a relatively weak, is strong in the contract, party shou

38、ld do more obligations with respect to the party's right to know. As for the terms of restricting the rights of the opposite party, such as the non prompt obligation, it can not explain that the relative party is aware of the clause, nor can it show that it has made a commitment, and that the te

39、rm of "not making a promise" is untenable. In this case, the insured to pay the premium at 15:32 on June 18, 2008, the issuance of the insurance policy, but the policy of the insurance period is from the "print at 0:00 on June 19, 2008 until June 18, 2009 when only 24, although the ap

40、plicant took the policy after known,But the insured personnel first did not get tips, can not prove that the applicant has made a commitment to the terms, the terms were not established, the insurance company is relying on its strong position imposed by the insured. Since the clause is not establish

41、ed, the effective time of the insurance contract shall be determined in accordance with the contract law and the insurance law. According to the theory of contract law, the contract is established when the acceptance of the contract is effective. Article thirty-second of the contract law stipulates:

42、 "when the parties enter into a contract in the form of a contract, the contract is established when the parties sign or seal the contract."." Article thirteenth of the insurance law stipulates that the insurance contract shall be established when the applicant makes an insurance clai

43、m, agrees with the insurer and reaches an agreement on the terms of the contract." Article forty-fourth of the contract law stipulates: "the contract established according to law shall come into effect upon its establishment."." In this case, the applicant paid the premium at 15:

44、32 on June 18, 2008, and the insurance company issued a policy indicating that the insurance contract was established in accordance with the law and that the contract was valid as a result of the establishment. Therefore, the insured vehicle in the second half of the contract after the occurrence of traffic accidents, the insurance company shall bear the responsibility for claims.thinkingMarket economy is not only a legal economy, but also a moral economy and a good faith economy. The more developed the market, the more honesty is needed and the worse the credibilit