Insured's Duty of Disclosure and Test of Materiality in Marine and Non-Marine Insurance Laws in China

摘要

It is well known that an insurance contract is a contract uberrimae fidei-of utmost good faith, i.e. each party is under a duty to exercise the utmost good faith towards the other in respect of any matter arising under or in relation to the contract. Perhaps the most important consequence of the uberrimae fidei principle is the doctrine of disclosure. During the negotiations for a contract of insurance both parties are under a duty to volunteer to each other information which is material to the risk and which is not known by the other party. The principle of utmost good faith has been universally adopted in every country's insurance law. However, the ways of performance of this duty and the rules derived from it are different in different laws. For example, in England, the wide-ranging duty of disclosure and prudent insurer mere influence test of materiality have been adopted in the Marine Insurance Act ("MIA") 1906 and common law; in Australia, the Insurance Contracts Act ("ICA") 1984 (Cth) adopts the reasonable person test of materiality for non-marine insurance while the Marine Insurance Act 1909 (Cth) adopts the prudent insurer mere influence test; in China, the Insurance Law 1995 which governs non-marine insurance and the Maritime Code 1992 in which, inter alia, the marine insurance is governed, produce different provisions relating to non-disclosure and misrepresentation. According to those provisions different tests of materiality and different ways of performing the duty of disclosure will be determined in marine and non-marine insurances. The aims of this study are first of all to analyse the different ways, of performing the duty of disclosure and to determine the different tests of materiality in marine and non-marine insurance laws in China according to the relevant provisions of the Maritime Code 1992 and the Insurance Law 1995; secondly, to examine the problems caused by the differences and the possibility of unification of the rules in respect of the duty of disclosure and test of materiality in Chinese marine and non-marine insurances. Finally, suggestions are made for the amendment of the provisions relating to the duty of disclosure and test of materiality in the Maritime Code which is currently being reviewed. Before embarking on the task of analysing Chinese laws it is appropriate to take a close look at the nature of utmost good faith. Many concepts adopted in Chinese insurance law (both marine and non-marine insurance) are English in origin. So it is necessary to examine the English law and practice relating to disclosure and test of materiality. The Australian ICA 1984 codifies the common law and insurance practice and mitigates the harshness of the common law to insureds and is regarded as a model for insurance law reform in England, so some Australian approaches will also be taken as references in order to find a better solution for improving Chinese law in the area of non-disclosure and misrepresentation.