The insured's concealment of the insured's past illnesses cannot be claimed by the insurance company

Lu Xinfeng (陸新峰) State Council Civil and Commercial Law Webzine, Issue No. 1, 2008

Case Introduction

On August 31, 2006, Nanjing G University submitted a short-term health insurance and accident insurance policy and declaration form to the insurance company, K Insurance. insurance policy and declaration for the policyholder to apply for school level insurance for its 7183 students.

The declaration states that the university has informed and explained to the insured students on important matters such as insurance amount, insurance liability, exclusions, and insurance period according to the terms and conditions of your company.

The policy 'insured health information' column of the major categories of pre-existing diseases out of the inquiry, and in the other informed matters 'recorded: the insured (students) in the existence of other pre-existing conditions and other issues? If yes, please list the specific person i.e. symptoms?" The end of the column states: any of the above health notification of the insured person answered yes, please check the box in the yes out, otherwise in nowhere to check, the policy "yes" and "no" are blank. The policy statement column format printing: we have carefully read and understand the product description, the application instructions, the terms and conditions of the insurance policy, to confirm that the contents of the content, especially the exclusion of liability provisions, the contract cancellation provisions have been fully understood and agreed to comply with the policyholder statement at the end of the policy stamped with the seal of the Office of Planning and Finance of University G.

On October 17, 2006, Nanjing University of G paid premiums of 215490 yuan, the insurance company issued to the University of G for the head of the insurance industry, a special invoice and short-term health insurance and accidental injury insurance policy and a copy of the original with the terms and conditions, and delivered to the University of G. The University of G in the collection of the above materials, to the insurance company to issue a customer acknowledgement, which is recorded in the acknowledgement: my unit today received Your company has sent us a copy of 'Short-term Health Insurance and Accidental Injury Insurance' group insurance policy, insurance program, and terms and conditions, and the insurance contract number is XXXXXXXXXX0600064. After reviewing the contents of the insurance policy and the invoice, we are sure that the contents are correct, and we have already understood in detail about the responsibilities, exclusions and relevant rights and obligations in the program. The insurance policy and the invoice are correct, and the insurance responsibilities, exclusions and related rights and obligations of the program have been understood in detail, and are now signed.

The third paragraph of the special agreement column of the original policy states that the insurance accidents caused by diseases, congenital or hereditary diseases and their onset are excluded; and the liability exemption part of the fourth article of the attached hospitalization medical insurance for students and young children stipulates that the Company shall not be responsible for paying the insurance premiums if the insured person suffers from medical expenses due to one of the following circumstances: (1) the excluded diseases specially agreed in the policy; (2) the unspecified diseases; (3) the unspecified diseases; (4) the unspecified diseases; and (5) the unspecified diseases. (i) Excluded diseases specifically agreed in the policy; (ii) Pre-existing conditions that have not been notified. (iv) Congenital malformations, deformations and chromosomal abnormalities (based on the International Statistical Classification of Diseases and Related Health Problems (ICD-10) issued by the World Health Organization).

The girl, Y, is a student of the school and one of the insured under the insurance contract. On October 13, 2006, the student was admitted to the First Affiliated Hospital of Nanjing Medical University for treatment of recurrent left cerebellar arteriovenous malformation and was discharged from the hospital on November 8, and spent RMB 36,719.9 on hospitalization and medical expenses. Afterwards, Y's father filed a claim with the insurance company, and K Insurance Company's claims department, after reviewing the relevant medical records and understanding, found that the girl had a history of previous surgery for a left cerebellar arteriovenous malformation three years earlier by the left cerebellar arteriovenous malformation. On December 8 of the same year, the insurance company issued a notice of refusal, the reason for refusal is: Y three years ago, there is a history of left cerebellar arteriovenous malformation surgery, belonging to the insured before the disease.

On May 13, 2007, Y's father appointed a lawyer to file a lawsuit with the Nanjing H District People's Court, requesting the insurance company to pay the hospitalization and medical expenses and bear the litigation costs. The civil complaint facts and reasons part, the second paragraph of which describes "the plaintiff Y in the past three years ago (in the high school sophomore) did suffer from left cerebellar arteriovenous malformation surgery, but the insurance company did not sign a contract in accordance with the provisions of Article 39 of the Contract Law.

Disputes between the parties:

The plaintiff's attorney mainly argued that:

First: the plaintiff Y in the previous 3 years ago (in the second year of high school) did suffer from left cerebellar arteriovenous malformation surgery, but the insurance company did not enter into a contract in accordance with the provisions of contract law, according to "Contract Law", Article 39 of the provisions of the contract: the use of the form of terms of the insurance contract, the party that provides the form of contract shall follow the principle of fairness in determining the rights and obligations between the parties, and take a reasonable way to draw the other party's attention to the clause that exempts or restricts its responsibility, and explain the clause according to the other party's request. When the insurance contract was concluded, the insurance company should have explained to its legal guardian to take out the insurance, but the insurance company neither explained the situation to the guardian and Y himself, nor the content of the terms.

Second: the insurance company did not learn from the plaintiff or the guardian whether the insured has a past medical history, there is no failure to fulfill the obligation to truthfully inform the insured, and the insured has a past medical history of the defendant's claims to inform the insurance company, which more fully explains the plaintiff is not aware of the specific terms of the form of the provisions of the insurance company does not exist to conceal the situation.

Third: the insurance accident occurred in the insurance period, the insurance company should be compensated in accordance with the contract.

The defendant insurance company agent argued:

First: the obligation to truthfully inform the policyholder is not only a legal obligation, but also an agreed obligation of the insurance contract between the two parties. In this case, the insurer through the form of written policy on the insured group health status inquiries, the policyholder did not fill out, should be regarded as the policyholder did not fulfill the obligation to inform. Pre-existing diseases and congenital diseases are recognized as absolute risk facts in insurance practice, even if the insurer did not ask, the policyholder should fulfill the obligation of truthful information. In this case, the policyholder did not fulfill the obligation to inform, whether under the insurance law or the insurance contract, the insurance company can refuse to compensate.

Second: the plaintiff is not a party to the insurance contract, the insurance company has no obligation to explain the terms of the insurance, the plaintiff invoked Article 39 of the contract law to claim compensation without factual and legal basis.

Third: through the declaration of the policyholder's seal confirmation of the policy customer receipt and other materials can prove that the insurance company has been in accordance with the provisions of the insurance law to the policyholder to fulfill the obligation to clearly explain the terms of the insurance contract are binding on both parties to the contract, in accordance with the insurance contract, the insurance company does not bear the responsibility of the compensation for the accident, in accordance with the insurance contract, article 4 of the exemption from liability part of the second paragraph of the third paragraph of the agreement.

The court ruled:

The court held that the insurance contract signed between the insured, University G, and Insurance Company K was legal and valid, and that the hospitalization of Y due to illness and the actual payment of medical expenses had constituted an insurance accident. China's Insurance Law adopts the principle of inquiry and notification, i.e., the scope of the policyholder's notification is limited to the matters inquired by the insurer, and there is no obligation to notify matters not inquired by the insurer. The matters that the policyholder should inform are limited to the important facts or matters that the policyholder or the insured knows or should know.

K insurance company to provide the policy, the insurance terms and conditions of the policyholder, the insured must be truthful, and all informed matters in writing shall prevail, in the conclusion of the insurance contract, the K insurance company should take the written inquiry of specific measures: such as the distribution of questionnaires to each insured student, or through the school in the list of students provided by the school, the setting of each insured person health The insurance company should take specific measures in writing, such as distributing a questionnaire to each student, or asking the school to set up a health information board for each insured person in the list of students provided by the school, in order to inquire about each insured person's health condition and whether he or she has any pre-existing conditions related to major illnesses that are exempted from the insurer's liability.

Although University G stamped the declaration of insured in the policy and issued a statement of notification to K Insurance Company. However, it is stated in the policyholder's declaration section of the policy that the "√" in the notification statement, that is, as the policyholder's "yes" response, the notification statement of the "insured's health notification" and "other notification matters". The box after each inquiry in the "Other Informational Matters" section of the policyholder's declaration was left blank, and Insurance Company Y did not make any inquiries to University K about the matters in the informational columns. The policy does not prove that Insurance Company K inquired about the physical condition of the 7,000 students enrolled in the policy and whether they had any pre-existing conditions.

As University G and Insurance Company K entered into the insurance contract, Insurance Company K did not require the university to conduct pre-insurance medical examination for the insured students, and Insurance Company K did not take effective measures to make inquiries to the insured one by one, so that Y, as one of the insured persons, was in a state of unawareness of the contents of the inquiries stipulated in the insurance policy and insurance clauses as well as the consequences of failing to fulfill his duty of notification, and could not be informed of the consequences by the insured. The insured, University G, informed Insurance Company K of his past medical history. The insured, University G, not being a professional insurance organization or a part-time insurance agent, did not bear the obligation of informing the plaintiff of his past medical condition in the absence of an inquiry made by Insurance Company K. The insured, University G, was not a professional insurance organization or a part-time insurance agent and did not bear the obligation of informing the plaintiff of his past medical condition.

The other student hospitalization medical insurance for young children is one of the common student group insurance in China's insurance market, usually the policyholder is the school, and the insured and beneficiaries are pre-school children or school students. The number of participants in this type of insurance is large, the proportion of young healthy people is high, and the cost of insurance agency is low. Therefore, the insurance premiums charged by this type of insurance is low, the underwriting procedures are relatively simple, the insurance company generally does not require the insured to undergo a medical examination.

Many insurance companies in the design of the product actuarial, because the policyholder does not inform the insured of the physical condition of the insured or pre-existing conditions and other circumstances of the probability of insurance accidents have been measured, the risk of claims rate has been included in the rate of premiums, so no longer on the physical condition of the insured inquired about the insurance policy does not require that the policyholder to fulfill the insured physical condition to the insurance company to inform the obligation of the insurance company. The insurance policy does not require the insured to fulfill the obligation to inform the insurance company of the insured's physical condition, and the insurance company will settle the claim after the insurance accident.

In summary, the insurance clause that exempts the insurer from liability for uninformed pre-existing conditions is not in effect, and Insurance Company Y is liable to pay the insurance benefit for the reasonable medical expenses incurred by the plaintiff for hospitalization during the insurance period. According to the special agreement of the insurance policy, the valid amount of medical expenses was approved as 27668.86 yuan, within the scope of 60,000 yuan insurance coverage specifically agreed in the insurance contract, according to the insurance terms of the graded segmentation method, it was calculated that the hospitalization medical insurance benefit should be paid as 22751.97 yuan. Accordingly, the court ruled that the defendant Y insurance company to pay X insurance benefits 22751.97 yuan.

Legal Commentary

The Nanjing H Court in this case did not correctly understand and apply the provisions of Article 17 of the Insurance Law, and restricted the insurer's statutory rights through misinterpretation during the trial, and modified the provisions of the Insurance Law in disguise. After reading the reasons for the judgment of the Nanjing H Court, it is y felt that the study of insurance theory must not be detached from the insurance practice, and as far as the judgment of the Nanjing H Court on student group insurance involved in this article is concerned, the adjudicator's understanding of the insurance law has deviated too far from the normal track to the extent that it is outrageous!

Insurance practice has a strong procedural and professional, for some specific issues, although the law also provides, but in the insurance practice is intricate. If you are not familiar with the insurance practice, only stay on the theory of insurance law, the insurance practice and insurance law theoretical research is separated, for the insurance dispute cases, can only solve the problem superficially, it is difficult to have a deep legal analysis.

Part of the court in the insurance trial practice to identify the facts or the focus of the dispute and the judgment of the rut, the error occurred inexplicably! This case is a typical. This case is a typical court trial thinking that reflects the insurance litigation trial work in some of the grass-roots courts in the degree of confusion, the grass-roots courts, the trial staff of the insurance practice contact is not much, the lack of relevant business knowledge, which is one of the important reasons that lead to abnormal confusion in the insurance trial in the Jiangsu region.

From the viewpoint of this case, the students involved in the insurance contract in the form of group insurance, Nanjing H Court that China's Insurance Law adopts the principle of inquiry informatism, that is, the scope of the policyholder's information to the extent that the insurer inquired about the matters of the insurer did not inquire about the matters of the insurer, do not have the obligation to inform. The matters that the policyholder should inform are limited to the important facts or matters that the policyholder or the insured knows or should know. I also agree with the view that can be used to determine whether the insurance company's reasons for refusing to pay the claim in this case.

Unfortunately, this understanding was seriously distorted when Court H applied it to the actual trial of this case, and the reasons for Court H's judgment can be summarized as follows:

A: In the case of student group insurance, the insurance company did not ask the insured person himself, the insured person is in a position of not knowing the content of the inquiries and the consequences of not fulfilling the duty of notification as stipulated in the insurance policy and the insurance terms. The insured was not in a position to inform the insurance company of his past medical history through the policyholder without his knowledge of the contents of the inquiries and the consequences of non-performance of the obligation to inform the plaintiff of his past medical condition".

B: The policyholder's failure to respond to the insurer's risk inquiry is deemed to be a failure of the insurer to inquire.

C: The insurer did not require a medical examination of the insured, so the insurer should not require the policyholder or the insured to inform the insured about the health condition of the insured.

In the author's opinion, the above judgment is a serious departure from the normal understanding of the current law. I also want to talk about this case on the understanding of the student group insurance inquiry and inform the problem, I analyze around the following issues:

First: the group insurance in the truthfulness of the obligation to inform the subject

Nanjing H court that "the student group insurance policyholder and the insured is not the same person, the school and the students are the duty to inform "The author believes that the insured on the insurance subject matter of the situation than anyone else knows, such as the insured to the insurer has the obligation to inform the insurer, more conducive to the insurer to understand the insurance subject matter of the situation, should be such a reference has a certain degree of reasoning. But after all, the theoretical research is not national legislation, it can be used as a driving force to promote legislation, but before the law, but not as the basis of the court decision. According to China's current legal provisions, the insured is also responsible for the insurer in the insurance truthfulness of the claim has no clear legal basis, (of course, the contract otherwise agreed, the law does not prohibit).

Article 10 of China's insurance law: the insurance contract is the policyholder and the insurer agreed to insurance rights and obligations of the agreement. Article 17 of the Insurance Law provides: the conclusion of the insurance contract, the insurer shall explain to the policyholder the terms and conditions of the insurance contract, and can be the subject of insurance or the insured person's relevant information to ask, the policyholder should be truthfully informed. It can be seen that the two parties to the insurance contract for the insurer and the policyholder, the insurer clearly explain the obligation to fulfill the object of the policyholder, the obligation to truthfully inform the legal bearer is also the policyholder. When the policyholder and the insured is a different civil subject, the obligation is still performed by the policyholder, and can not naturally shift or transfer to the insured.

The author believes that the obligation to inform in addition to the parties, as the subject matter of the insurance insured or the owner of the subject matter of the insurance of the most understanding of the state of risk, the section to the insured in the contracting obligation to truthfully inform the insurer is more conducive to the correct assessment of the underwriting risk, the insurance industry also exists in the theory of the obligation to extend to the insured's point of view, but at present, China and a number of civil law countries are almost The same to inform the bearer of the obligation to position in the policyholder. The author believes that any point of view in its not rise to the height of the law, scholars can write a paper to say, to discuss the comments, but obviously not as a court hearing and final decision based on.

In this case, the policyholder for the university, the insured is a student, therefore, according to the current law, the insurance company should be asked for the university, not the insured himself, even if the insurance contract agreed to the insured to the insurance company has the obligation to truthfully inform, but the obligation to truthfully inform the insurance law or insurance contract section to the insured or the insured of a statutory or contractual obligations, the insurance company is obviously a legal or statutory obligations. The insurance company is clearly a legal or contractual right.

The insurance company has a contractual obligation to receive the insured's truthful information, because it did not directly to the insured person one by one to make written inquiries, in accordance with China's legislative system of inquiry, the practice can only be regarded as the insurance company to give up the right to inquire the insured, the insured's obligation to truthfully inform the exemption. But obviously this does not directly lead to the policyholder to the insurance company to fulfill the obligation to truthfully inform the legal obligation to be exempted.

The Nanjing H Court held that "in the absence of an inquiry by the insurance company, the insured was unaware of the content of the inquiries and the consequences of not fulfilling the duty to inform as stipulated in the policy and the terms of the insurance, and could not inform the insurance company of his past medical history through the insured's university, and the insured's university was therefore not obliged to inform the plaintiff of his past illness". Pre-existing condition of the obligation to inform the "the view of the logical relationship between the confusion, I can not see the causal relationship, the insurer did not ask the insured and directly exempt from the policyholder to inform the legal obligation of the reasoning is without any legal basis.

In fact, the conclusion of the life insurance contract, the policyholder and the insured is not the same, the insurance contract was established on the premise of the policyholder has an insurance interest in the insured, the policyholder and the insured are bound to have a fairly close relationship (in this case, the insured students and the policyholder school management and management of the relationship between the school is also carried out every semester medical examination) the law can be presumed that Based on the close relationship between the two, the insured should be aware of the insured's condition, the obligation to truthfully inform the insured of the close relationship with the insured is not inappropriate, and then the insured as the subject of the obligation, is not very necessary.

Second: the way of inquiry in group insurance

The court recognized that the insurance company in the form of group insurance, but still think that the insurance company should "issue questionnaires to each student, or through the school in the list of students provided by the school, set up a column of health information for each insured, inquire about the physical condition of each insured person". The insurer should "issue a questionnaire to each insured student or set up a health information column for each insured student in the list of students provided by the school, etc., inquiring about the physical condition of each insured student and whether he/she has any pre-existing conditions related to major illnesses that are exempted by the insurer. The holding of the court clearly conflates the two different underwriting models of group and individual insurance. In this case, the court determined that the group insurance contract was validly established, the insurance law on the rights and obligations of the parties have been assigned.

The author believes that in this case, the insurance company provided the policyholder with the policy, the policy set up in the "insured health information column" and "other information". That is to say, the insurance company has been through the form of the policy written to the policyholder about the insured group members of the physical condition of the inquiry, the insurance policy for risk inquiry practice is also the insurance industry's long-established mode of inquiry, in line with the current legislation. And in the litigation practice, this mode of inquiry, but also for the countless jurisprudence confirmed.

The creative way of questioning proposed by the Court of H is actually a direct negation of the provisions of Article 17 of the current insurance law, and puts forward a harsh model of the insurance company that has no legal basis and is not practicable in the field of this kind of insurance. The insurance company has already asked in the "Other Information" section of the policy, "Are there any pre-existing conditions among the insured (students) of the policyholder? If yes, please specify the specific person or symptoms?". . And the court asked one by one, i.e., one by one, did the student Zhang San have any pre-existing medical problems? The fourth student, Li, had a pre-existing medical condition, etc.? -- up to the 7183rd student? These two types of inquiries differ only in form and not in substance. The law does not compel the insurer specific details of the operation, the parties to the contract have the right to free choice within the scope of the law. This case for the group insurance coverage, forced the insurer to be insured by the insurer's situation one by one to bring the inquiry, and as the main reason for the judgment, in fact, is a kind of judicial power over the law referee behavior.

The most critical thing is that the Nanjing H Court thinks that this way is impractical and difficult to operate in practice! The school insurance business practice, the charge period is highly concentrated, wide range, the number of people, the workload, low fees, agency fees, if the individual insurance will be difficult to take into account the underwriting surface on the basis of the prevention of anti-selection, completely away from the school this link for the school insurance, the implementation of the policy manually a contractual model of one-on-one contracting of the insurance contract signed by the students and insurance companies obviously failed to take into account the particularity of this type of insurance.

In practice, it is difficult or impossible for the insurer to introduce the insurance content to each student and their parents, fill in the policy, clearly explain the content of the exclusion clauses, and it is difficult for all students or parents to make the risk of inquiry, the one-to-one mode of concluding the contract in the sale of this type of insurance does not have the operability. Therefore, the school as the insured is more common.

It is common for insurers to design student insurance as a group policy and sell it through schools, and student insurance is generally billed as a group policy. The positive design is in line with the provisions of the insurance law, but also to solve the practical problems faced by the insurance in practice. While in the group insurance underwriting model, one to ask, one to inform, one to explain is not required by the current insurance law.

The court in this case recognized the group insurance contracting mode, but still required the insurance company to ask one-to-one to inform, obviously did not correctly understand and apply the provisions of Article 17 of the Insurance Law, which essentially limits the legitimate rights of the insurer, in effect, modified the provisions of the Insurance Law.

Third: the legal judgment on the policyholder's failure to answer the insurer's inquiries

The Nanjing H Court held that "each of the boxes after the inquiries in the "Insured's Health Information Column" and "Other Informative Matters" in the statement of information are filled with the following information. The court held that "the box after each inquiry in the "Health Information for the Insured" and "Other Inquiries" of the statement was blank, and Insurance Company Y did not make any inquiry to University K about the matters in the information column. This argument is not in accordance with the relevant provisions and is not true.

"China Insurance Regulatory Commission on the insurance contract disputes on issues related to the reply" (Chongqing Municipal Higher People's Court letter ([2005] Chongqing Higher People's Court civil final word No. 174): According to the provisions of Article 17 of the Insurance Law, the policyholder entered into the insurance contract, the obligation to truthfully inform, should belong to the inquiry to inform, that is, the insurer in writing or oral form of the questioning, the policyholder is obliged to inform. The policyholder is obliged to inform. If the insurer of the relevant matters have been raised in the risk inquiry form, the policyholder did not fill in, should be regarded as the policyholder did not fulfill the obligation to inform.

It can be seen that the insurer has made inquiries to the policyholder, and the policyholder did not fill in the behavior, should be regarded as not informing the policyholder did not answer the policyholder as the insurer did not ask the point of view of the unimaginable.

In fact, the past illness of the insurance practice is recognized as an absolute risk of fact, even if the insurer did not ask, the policyholder should also fulfill the obligation to truthfully inform. In this case, the insured suffered from left cerebellar arteriovenous malformation is not only the past disease is also congenital disease, the "absolute risk of fact" is the current insurance practice recognized the risk of estimating the important facts.

The Supreme People's Court expert judges to explain the difficult issues of civil and commercial refereeing this also believes that: the insurer's risk judgment is crucial, the policyholder should be a serious fraud and insurance risk increase in the circumstances of the obligation to inform the truth, these two situations, even if the insurance company does not ask, the policyholder should be informed truthfully.

Another according to the "China Insurance Regulatory Commission on the insurance contract disputes on issues related to the reply" (Chongqing Municipal Higher People's Court letter ([2005] Chongqing Higher People's Court civil final word No. 174): According to the Insurance Law, Article 5, Article 60 of the Contract Law, the parties to the insurance contract to exercise their rights and obligations should follow the principle of good faith, the contract should be performed according to the nature of the contract, the purpose and trading habits. The parties to an insurance contract shall exercise their rights and fulfill their obligations in accordance with the principle of good faith, and in the course of contract performance, they shall fulfill their obligations attached to the contract in good faith, such as notification and assistance, in accordance with the nature and purpose of the contract and the transaction habits. When taking out an insurance policy, if the policyholder knows or should know that certain important matters involve the risk of the subject matter of the insurance and affect the insurer's decision on whether to underwrite the policy or to increase the insurance premium rate, even if the insurer does not make an explicit inquiry, the policyholder, based on the principle of honesty and good faith, should make appropriate explanations or notifications; if the policyholder intentionally fails to fulfill such obligations of good faith, according to Paragraph (2) and (3) of Article 42 of the Contract Law, the policyholder has to The contract law, the policyholder is liable for damages for contractual negligence.

Fourth: the medical examination cannot exempt the insured from the legal obligation to inform

The Nanjing H Court held that: the insurance company did not require the insured to undergo a medical examination, so the insurance company should not require the policyholder or the insured to inform the insured of the state of health. This view borders on the absurd! The medical examination is a means for the insurance company to assess risk and not a statutory obligation.

The principle of utmost good faith for the basic principles of insurance, the obligation to truthfully inform the insurance law is a legal obligation, whether it is the legal provisions or insurance practice, the medical examination is not a mandatory stage of signing the insurance contract, the insurance company whether the insured medical examination is the right as a party to the contract, even if the insurance company to the insured medical examination can not be exempted from the policyholder's duty of truthfully informing. Even if the insurance company conducts a medical examination on the insured, it does not exempt the insured from the obligation of truthfulness.

Moreover, the accuracy of the results of the medical examination is based on the physical condition of the insured before the medical examination, and the medical examination can only reflect the reality of the physical condition, and lack of true reflection of the past physical condition. Based on the principle of disease prolongation, medically, even a healed past medical history can lead to the occurrence of major diseases. Concealment of the insured's past medical history by the insured will increase the hazard rate, thus affecting the insurer's correct assessment of the risk.

Jiangsu Provincial High Court in the "investigation report on the province's insurance disputes on the trial of cases" also clearly put forward: the impact of medical examination on the obligation to truthfully inform.

This case is a case of a medical examination being an auxiliary means, which should not in any way alleviate the policyholder's obligation to inform truthfully under the legislation of inquiry and notification. Otherwise, exempting the policyholder from the obligation to inform truthfully simply because the insurer has adopted a medical examination by a doctor is tantamount to encouraging insurance fraud, and will lead to the cancellation of the medical examination procedure by the insurer.

The insurance contract in this case is funded by the school for the students to buy, the scope of coverage is relatively broad, the typical public welfare insurance, only 30 yuan per person per year. According to the appellant's understanding, Jiangsu region, the most common routine medical examination costs no less than 50 yuan, and this simple medical examination can not achieve the purpose of mastering the risk. Require the insurance company to carry out medical examination for students, neither realistic nor in accordance with the law. It is extremely na?ve to require insurance companies to conduct medical examinations on students as insured in the school insurance policy.

Fifth: the court omitted the review of the congenital disease exemption

In addition, according to the case description of the Nanjing H Court: the insured student "was diagnosed with left cerebellar arteriovenous malformation, X previous 3 years ago, there is a history of left cerebellar arteriovenous malformation surgery." In fact, cerebral arteriovenous malformation is a major type of cerebrovascular malformation, which arises due to the embryonic cerebral primitive arteries and veins in parallel, closely linked, separated by two layers of vascular endothelial cells.

The disease is a typical congenital disorder. According to the International Statistical Classification of Diseases and Related Health Problems (ICD-10) issued by the World Health Organization, the appellee's left cerebellar arteriovenous malformation belongs to the 155 classification of Q00-Q99 congenital malformations, deformations, and chromosomal anomalies (name of the disease: cerebrovascular malformation; ICD-10 subcode Q28. 301).

Insurance coverage is oriented to the future uncertainty of the risk, the current market of various types of personal insurance terms are generally congenital diseases are not insured risks, and in the exclusion clause will be excluded. According to the author's understanding, there is no product that covers congenital diseases in the school insurance business in China, and there must be a provision for exemption of congenital diseases in the terms and conditions of this case.

And according to the Nanjing H court case, the university in the policyholder statement column stamped, and issued a statement to the insurance company, it should be considered that the insurance company on the exemption of liability for a clear description of the provisions of the terms of the contract are binding on both parties. In summary, the Nanjing H Court, H Court omitted to review the congenital disease exemption in the course of this case.

VI: Reflection

In summary, Nanjing H District Court did not correctly understand and apply the provisions of Article 17 of the Insurance Law, and restricted the insurer's statutory rights by misinterpreting them during the trial, and modified the provisions of the Insurance Law in disguise. The first obligation that judges should fulfill, as stipulated in Article 7 of our Judges Law, is to "strictly abide by the Constitution and the law." Our judges and courts are different from those in common law countries such as the United Kingdom and the United States, in that judges are responsible for the correct application of the law and do not have the function of "law-making", i.e., legislating and amending the law.

The Nanjing H District Court's practice of substantively changing the law through its judgment is inconsistent with the current legislative and judicial systems in China. If the court through the judgment to create this limitation of the insurer's legal rights precedent, will not be conducive to the implementation of China's "General Principles of Civil Law", "Contract Law" and "Insurance Law" stipulates the "honesty and credit" as the basic principle of civil and commercial activities, and the cultivation of honesty and trustworthiness, healthy, fair and reasonable legal order of the market economy, but also will affect China's insurance industry and the insurance market, and the insurance market. It will also affect the healthy development of China's insurance industry and insurance market.

In recent years, in Jiangsu Province, insurance litigation, insurance companies are in an extremely difficult situation, due to the high rate of loss of insurance companies, the fear of court cases, turn to seek mediation and arbitration increased, and even some companies in the formulation or revision of insurance terms to increase arbitration clauses, in the first half of 2007, the Insurance Association is also being set up in the first half of the Insurance Dispute Resolution Committee, in order to inhibit disputes into litigation into the court, in this from the side of the show that the insurance industry and the healthy development of the insurance market. This shows from one side that the whole insurance industry, including the association, is skeptical about the judicial ability of the court. This phenomenon should cause the referee organization's attention and reflection.