China: The Analysis On The Draft Of New Amendments To The Insurance Law

Last Updated: 7 February 2017
Article by Jia Hui

德恒 -新保 法修方向解析

The Analysis on the Draft of New Amendments to the Insurance Law

北京德恒律师事务所  贾辉、董重阳

2015年10月14日,国务院法制办公布中国保险监督管理委员会(以下称"")起草的《关于修改〈中华人民共和国保险法〉的决定(征求意见稿)》(以下称"《 征求意稿》")及其说明全文,并征求社会各界意见。《征求意见稿》新增24条,删除1条,修改54条,修改后共9章208条。新保险法的修订背景在于,当前我国保险业处于高速发展时期,面临的风险因素更加复杂,出现市场主体违法成本过低等问题,现行《保险法》的有些规定已不能适应保险行业的发展,因此有必要对其进行修改完善。

On October 14th, 2015, the Legislative Affairs Office of the State Council of the People's Republic of China promulgated the "Decision on Revising the Insurance Law of the People's Republic of China (Draft for Comment)" (hereinafter referred to as the "Draft for Comment") and the explanation of the Draft for Comment drafted by China Insurance Regulatory Commission ("CIRC"), and sought for comments and suggestions from the public. In the Draft for Comment, 24 articles are added, 1 article is deleted, and 54 articles are modified based on the current Insurance Law of the People's Republic of China (hereinafter referred to as the "Current Insurance Law"); thus there will be 9 Chapters and 208 Articles altogether after the revision. The background of this revision is that the insurance industry in China is currently undergoing a period of rapid development during which the potential risks become more complicated and some issues emerge, such as that the cost of violation of law is too low. Therefore, some provisions of the Current Insurance Law are no longer suitable for the development of the insurance industry, and need to be revised and perfected.

我们认为,此次修订值得注意的亮点包括:

We find the highlights of the revision are as follows:

新法修 方向

New Amendments

内容

Contents

立法目的解

Analysis

新增20日犹豫期

20 days' cooling off period will be added.

《征求意见稿》第四十八条:保险期间超过一年的人身保险合同,应当约定犹豫期。投保人在犹豫期内有权解除保险合同,保险人应当及时退还全部保险费。犹豫期自投保人签收保险单之日起算,不得少于二十日。

Article 48 of the Draft for Comment :

A cooling off period provision shall be included in personal insurance contracts with an insurance period of more than a year. An insurance applicant shall have the right to rescind an insurance contract within the cooling off period and the insurer shall refund all paid insurance premiums without delay.

The cooling off period shall initiate from the date on which the applicant signs the insurance policy and shall last no less than 20 days.

进一步突出保险消费者权益保护的监管导向,设立最短20天的"犹豫期",投保人购买后仍有机会仔细思量或请教专业人士,将有利于减少退保纠纷和消费者投诉。

It highlights the tendency of regulation on further protection of insurance consumers' rights and interests. The minimum 20 days of cooling off period gives the insurance applicant an opportunity to think it over and to consult with experts after the purchase of the insurance policy, and it is beneficial to the reduction of the disputes on insurance cancellation and consumer complaints.

人身险增加年金业务

Annuity insurance will be added to the personal insurance business.

《征求意见稿》第九十六条:人身险公司的业务范围,在人寿保险、健康保险、意外伤害保险等保险业务的基础上,增加了年金保险。其中,年金业务,包括企业年金、职业年金等。

Article 96 of the Draft for Comment: annuity insurance is added to the personal insurance business which already consists of life insurance, health insurance, accidental injury insurance, etc. The annuity insurance consists of corporate annuity insurance and occupational annuity insurance, etc.

顺应国家养老保险制度改革,利用寿险公司广泛的机构布局,建立健全职业年金保险,使商业保险成为基础养老保险制度的重要补充。

To conform with the reform on national endowment insurance system, the goal is to establish and perfect the occupational annuity insurance system, and to make the commercial insurance a significant supplement to the endowment insurance system by taking advantage of the extensive distribution of organizations of life insurance companies.

资本保证金达到2亿后不再提取

No more guarantee fund will be required in the case that the existing guarantee fund reaches the amount of CNY 200 million.

《征求意见稿》第九十八条:保险公司应当按照其注册资本总额的10%提取资本保证金,存入国务院保险监督管理机构指定的银行,除公司清算时用于清偿债务外,不得动用。前款规定的资本保证金达到人民币2亿元的,可以不再提取。

Article 98 of the Draft for Comment: the guarantee fund equalizing 10% of the total registered capital of the insurance company shall be deposited into the bank designated by the insurance regulatory authority of the State Council and can not be employed for any purpose other than repayment of debt during the liquidation of the company. In the event the guarantee fund deposited prescribed in the previous paragraph reaches the amount of CNY 200 million, no more guarantee fund will be required.

此举意在适度放松资金管制,释放保险资本运作活力。保险公司对资本的需求很大,如果要提取注册资本的20%用作保证金存入银行,会对保险公司资本效率产生不利影响。此次降低资本保证金,将有助于提高保险公司的资本运作活力。

The goal is to moderately mitigate the capital control and supervision so as to vitalize the capital utilization of insurance companies. On account of the great capital demand of insurance companies,it would exert negative effects on the efficiency of the capital utilization of insurance companies if the guarantee fund equalizing 20% of registered capital is required to be deposited. The decrease in the guarantee fund would help enhance the vitality of the capital utilization of insurance companies.

取消财产险四倍规则

The "four times rule" of property insurance will be abolished.

《征求意见稿》拟删除《保险法》第一百零二条关于财产险的四倍规则:经营财产保险业务的保险公司当年自留保险费,不得超过其实有资本金加公积金总和的四倍。

The Draft for Comment intends to abolish the "four times rule" of Article 102 of the Current Insurance Law: the self-retained insurance premium in the current year of a property insurance company shall not exceed four times of the amount of its actual capital plus public reserve funds.

这意味着产险公司不需要将超过资本金和公积金总和四倍的保费强制分出给再保险公司,今后将适用"偿二代"的新的监管机制。

This means it is no longer necessary for the property insurance company to distribute to re-insurance companies the part of insurance premium which exceeds four times of the amount of its actual capital plus public reserve funds. A new supervision system named "Solvency II" will be employed in the future.

"偿二代"入法

A new supervision system named "Solvency II" will be established.

《征求意见稿》第一百零二条:保险公司的偿付能力应当符合下列要求:(一)核心偿付能力充足率和综合偿付能力充足率符合国务院保险监督管理机构规定的标准;(二)实际资本减去最低资本的差额、认可资产减去认可负债的差额不得低于国务院保险监督管理机构规定的数额;

(三)保险公司的风险综合评级结果符合国务院保险监督管理机构规定的标准。

Article 102 of Draft for Comment:

An insurance company shall maintain a minimum solvency margin commensurate with the degree of risk it is exposed to. An insurance company shall meet the following solvency requirements:

1. its core solvency margin ratio and its consolidated solvency margin ratio shall meet the standards set by the insurance regulatory authority under the State Council;

2. the excess of its real capital over the minimum capital and the excess of its admitted assets over its ranking liabilities shall not be less than the amount respectively set by the insurance regulatory authority of  the State Council;

3. the overall risk rating of the insurance company shall meet the standard set by the insurance regulatory authority of the State Council."

第一百零三条:保险公司应当按照国务院保险监督管理机构的规定对实际资本进行分级管理,按照资本吸收损失的能力,将实际资本分为核心资本和附属资本。

Article 103 of the Draft for Comment:

"Insurance companies shall, in accordance with the prescriptions of the insurance regulatory authority of the State Council, adopt the management system of rating their actual capital and divide their actual capital into core capital and supplementary capital based on the loss absorption ability of the capital."

第一百零四条:保险公司可以发行权益性资本工具、债务性资本工具以及国务院保险监督管理机构认可的其他资本工具提高偿付能力充足率,管理办法由国务院保险监督管理机构制定。在资本市场公开发行资本工具的,应当遵守《中华人民共和国证券法》等法律、行政法规的规定。保险公司发行次级债,应当经国务院保险监督管理机构批准。

Article 104 of the Draft for Comment:An insurance company may issue equity capital instruments, debt capital instruments, and other capital instruments approved by the insurance regulatory authority of the State Council to increase its solvency margin ratio, and the relevant regulation shall be enacted by the same authority. In the event of public issuance of capital instruments in the capital market, the Securities Law of the People's Republic of China and other laws and regulations shall apply. The issuance of subordinated debts by insurance companies shall be approved by the insurance regulatory authority of the State Council."

第一百零八条:保险公司应当加强保险资产负债匹配管理,建立健全保险资金全面风险管理体系。

Article 108 of the Draft for Comment:Insurance companies shall enhance the management in respect of the matching of insurance assets and liabilities, and establish and perfect the comprehensive risk management system of insurance capital.

"偿二代",是第二代偿付能力监管体系的简称。相比于第一代偿付能力监管体系("偿一代"),偿二代在公司自身的风险假设上加入现在会计准则的变化,是一个比较全面的风险判断标准,模型上也比以前更加复杂,更加精细。

Solvency II is the abbreviation of the solvency supervision system. Compared with the first generation of the solvency supervision system (Solvency Ⅰ) , Solvency II adds the changes of modern accounting standard to the risk hypothesis of company itself. It is a relatively comprehensive risk judgment standard and the model is more complicated and sophisticated. 

《征求意见稿》不仅将"偿二代"这一新型监管体系在保险法中确立下来,同时将偿二代核心的资本分级制度、测算评价标准、行业资本补充机制等也写入了保险法。此外,还增加了完善保险公司偿付能力不符合规定的监管处置措施。

The Draft for Comment not only establishes Solvency II as a new supervision system by the prescription of the Insurance Law, but also adds into the Insurance Law the capital rating standard, calculating and evaluation standard, supplementation mechanism of capital, etc. which are the core of Solvency II. Additionally, the supervision and penalty mechanism for the incapability of insurance companies' solvency is also added. 

拓宽保险资金运用形式

To increase forms of utilization of insurance capital

《征求意见稿》第一百零九条:保险公司的资金运用限于下列形式:

(一)银行存款;

(二)买卖债券、股票、证券投资基金份额等有价证券;

(三)投资股权;

(四)投资保险资产管理产品;

(五)以风险管理为目的运用金融衍生品;

(六)国务院规定的其他资金运用形式。

保险公司投资重大股权、拓宽保险资金运用形式,应当经国务院保险监督管理机构批准。

Article 109 of the Draft for Comment:

Insurance companies may utilize their capital only in the following forms:

1. Bank deposits;

2.Trade on negotiable securities such as bonds, stocks, shares of securities investment funds, etc.;

3. Investment on equity shares;

4. Investment on insurance assets management product;

5. Employment of financial derivatives for the purpose of risk management;

6. Other forms of utilization of the insurance capital prescribed by the State Council.

For substantial equity investment, or the increase of the forms of application of insurance capital, the approval of the insurance regulatory authority of the State Council is required.

进一步拓宽保险资金运用形式,允许保险资金投资股权、保险资产管理产品和以风险管理为目的运用金融衍生品。在实践中,保监会已经在部门规章与规范性文件中扩大了保险资金的投资范围。此次修订将实践中已经开展的业务在立法层面予以确认,进一步明确了鼓励保险资金运用创新的监管导向。

The goal is to further increase the forms of utilization of insurance capital in the form of allowing insurance capital to invest in equity, insurance assets management products and financial derivatives for the purpose of risk management. In practice, CIRC has increased the forms of utilization of insurance capital in departmental rules and regulations and normative documents. The revision affirms the practice which has already been carried out at the legislative level and further clarifies the regulatory guide of encouraging the innovative utilization of insurance capital.  

进一步严格公司治理监管

To further intensify the supervision of corporate governance.

《征求意见稿》第一百五十三条、第一百五十四条、第一百五十五条,规定了保险监督管理机关对存在重大风险隐患、偿付能力不足、公司治理不符合要求的保险公司可采取执法手段和措施。

Article 153, 154 and 155 of the Draft for Comment prescribes that CIRC could employ enforcement tools and take actions on insurance companies which have potential serious risks, face insolvency, or  fail to meet corporate governance requirements.

重点对保险公司重大风险隐患、偿付能力和公司治理进行监管,将有效维护保险市场以及保险资金的稳定性。

The goal is to supervise the insurance company's potential serious risk, solvency and corporate governance, which might maintain the stability of the insurance market and insurance capital efficiently.

加强对保险公司股东、实际控制人的监管要求

To strengthen the supervision of   shareholders and actual controllers of insurance companies.

《征求意见稿》第八十五条规定变更出资额占有限责任公司资本总额5%以上的股东和实际控制人,或者变更持有股份有限公司股份5%以上的股东和实际控制人,应当经保险监督管理机构批准。

Article 85 of the Draft for Comment prescribes that change of any shareholder whose amount of capital contribution accounts for 5% or more of the total capital of a limited liability company, or change of any shareholder who holds 5% or more of the shares of a corporation requires approval of the CIRC.

第一百六十七条:保险公司的股东存在虚假出资、抽逃出资或者其他损害保险公司利益行为的,由国务院保险监督管理机构责令限期改正,情节严重的,可以限制其股东权利,并可以责令其转让所持股权。

Article 167 prescribes that in the event a shareholder of an insurance company feigns capital contribution, illegally withdraws his contributed capital, or conducts other acts harmful to the interests of the company, the insurance regulatory authority of the State Council shall order him to make rectifications within a prescribed period. If the violation is serious, insurance regulatory authority of the State Council may restrict his shareholder rights and may order him to transfer his shares.

第一百六十九条:保险监督管理机构可以要求保险公司股东、实际控制人对公司重大事项作出说明。

Article 169:The CIRC could demand the shareholders and actual controllers of the insurance company to make explanations on material matters of the insurance company.

第一百七十一条:保险监督管理机构可以查阅保险机构股东和实际控制人的银行账户及开户信息。

Article 171: The CIRC could investigate the bank account and account information of the shareholders and actual controllers of the insurance company.

针对目前保险市场并购较多的现象,从法律上对保险公司股东、实际控制人进行更严格的监管,防止不合格投资人通过收购保险公司现有股权间接入股保险公司。

Since there are significant numbers of mergers and acquisition transactions in the insurance market, the goal is to take more strict supervising measures on insurance company shareholders and actual controllers by legal means, in order to prevent unqualified investors to indirectly invest in the insurance company through acquisition of the insurance company's existing shares.

进一步规范保险业务行为

To further regulate the business of the insurance industry

《征求意见稿》第一百二十四条增加规定保险公司、保险代理人、保险经纪人及其工作人员不得对保险产品作引人误解或者与事实不符的宣传或者说明;不得违反法定或者合同约定期限不履行赔付义务并设定行政处罚;不得泄露、出售或者非法向他人提供投保人、被保险人的个人信息。

Article 124 of the Draft for Comment prescribes that insurance companies, insurance agents and brokers, and any other employees shall not: (i) promote or describe an insurance product in a misleading or factually incorrect way; (ii) fail to perform its obligations to pay indemnity or insurance benefits within the prescribed time period or the time period as agreed in the insurance contract. Otherwise, there shall be administrative penalty; and (iii) disclose, trade, or illegally provide to any third party any personal information of the policyholder or the insured.

对"误导性宣传"、"理赔难"、"泄露投保人、被保险人个人信息"等被诟病较多的保险业务现象加大监管力度。进一步突出保险消费者权益保护的监管导向,为保险消费者保护工作和制度建设提供法律基础。

The goal is to intensify the supervision of the insurance industry regarding the phenomena which are heavily criticized such as "misleading promotion", "difficulty in settlement of claims", "leakage of personal information of policyholder or insured" so as to highlight the supervision tendency of enhancing the protection of consumer rights and interests and to lay the legal foundation of protection of insurance consumers and construction of the system.

加强处罚力度

To intensify the penalty

《征求意见稿》第一百七十六条至一百九十四条

Article 176 to 194 of the Draft for Comment.

当前,保险业处于高速发展时期,面临的风险因素更加复杂,现行保险法规定的监管执法手段不够完善,市场主体违法成本过低。因此,有必要修改完善保险法,加大对违法行为的处罚力度。

Currently, the rapidly developing insurance market faces more complicated risk factors. The cost of violation for the entities in the market is low, and the supervisory methods prescribed by the Current Insurance Law are inadequate. Therefore, it is necessary to revise the Current Insurance Law and to intensify the penalty for the violation.

《征求意见稿》"法律责任"部分,自第 176条至194条不同程度提高了处罚的力度,总体上调整为现行《保险法》的2-10倍,处罚金额大多提高至10万元以上,罚款上限也多提高到100万元至300万元。

Article 176 to 194 of the Draft for Comment intensifies the penalty which will be 2 to 10 times than that of the Current Insurance Law generally.  Most of the forfeit will be raised to more than CNY 100,000. The maximum fine also will be raised to as high as CNY 1 million to 3 million.

后续可能出台的法律法规

Laws and regulations may be promulgated thereafter.

《征求意见稿》第一百零七条、第一百一十条、第一百一十九条、第一百二十三条、第一百三十七条、第一百七十四条、第二百零二条、第二百零七条

Article 107, 110, 119, 123, 137, 174, 202 and 207 of the Draft for Comment.

根据该份《征求意见稿》,监管机构将就再保险、保险资产管理产品、互联网保险、公估人管理、纠纷调解制度、保险集团、相互保险等问题陆续制定并出台相应的管理办法。

同时,国务院还将制定由财政支持的巨灾保险制度管理办法。

According to the Draft for Comment, the CIRC will enact and promulgate regulations on re-insurance, insurance assets management products, on-line insurance, management of assessors, dispute mediation system, insurance group companies, mutual insurances, etc. Meanwhile, the State Council will enact the regulation on Catastrophe Insurance System with the state financing support.

可以发现,此次修订体现了相关部门保险监管的总体思路,一方面"放松管理,改革创新,释放市场活力",另一方面加大对保险违法行为的打击力度。相较现行《保险法》,《征求意见稿》进一步放松业务管制、扩大保险资金运用范围,新增完善公司治理、风险控制的要求条款,订立"偿二代"规则下对应的法规,加大对不法行为的处罚力度等。可以预见,修订后的《保险法》将对保险业的良性健康发展起到积极作用。

We could find that the revision shows the general idea and thinking of Chinese insurance administration authority. On one hand, it relaxes supervision, promotes innovation, and releases market force; on the other hand, it strengthens the legal enforcement towards illegal act with respect to insurance. Comparing the current Insurance Law with the Draft for Comment, we note that the Draft for Comment relaxes supervision, expands the investment range of insurance fund, adds clauses regarding corporate governance and risk control, enacts laws regarding "Solvency II" and increases punitive damages regarding illegal acts, etc. It is foreseeable that the revision of the current Insurance Law will promote the sustainable development of Chinese insurance market.

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Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions