China: Change – Is It Always A Good Thing? (Chinese)

Last Updated: 2 February 2017
Article by Ik Wei Chong and Christian Liu

简介

2016年8月,《2015年保险法》(以下简称《保险法》)开始实施。新保险法代表了英国保险合同法100多年来最大的变更,作为对原有法规姗姗来迟的全面更新,备受保险行业的推崇。

但是,最近的立法变更已经引起了保险业界的一些担忧。2017年5月,《2016年公司法》(以下简称《公司法》)将在英国生效,并将对保险法进行两项重要修改,增加了如下两个新条款:

  • 《公司法》第28条对《2015年保险法》增加了一个新的章节(第13(A)节)。该节内容规定了每一保险合同中的隐含条款,即如果被保险人根据合同提出索赔,则保险人必须"在合理时间内"支付任何与索赔有关的应付款项。"合理"时间包括调查和评估索赔的时间。什么时间是合理的将取决于稍后进一步考虑的各种因素。
  • 《公司法》第29条允许保险人不履行上述合同的修改退出合同协议(虽然不是针对消费者保险)。但是,如果保险人故意或罔顾后果违反合同条款,则该退出保险合同的行为将不会生效。

如何在独立个案中判断是否属于"合理时间"?

第13(A)(3)条规定:

"什么是合理的将取决于所有相关情况",但下列因素是可能需要考虑的几个例子:

  1. 保险的类型;
  2. 索赔的规模和复杂性;
  3. 符合任何相关的法律或监管规则或指导;
  4. 保险人无法控制的因素;

第13(A)(4)条进一步规定,如果保险人表示有合理的理由对该项索赔提出争议(无论该争议是关于索赔金额还是法律责任),则保险人没有违反必须在合理时间内完成支付这一隐含条款,,而只是"当争议持续的时候没有完成索赔的支付"。但是,保险人在处理索赔时的行为可能是决定其是否违反该条款及何时违反的相关因素。

保险人是否必须支付惩罚性损害、利润损失或其他损害?

引入关于逾期支付索赔的损害这一规则的考虑是,非法逾期付款,特别是当被保险人属于中小型企业(英文简称SME)时,对其造成的损害甚至可能使公司陷入破产并进入清算程序。逾期支付索赔的损害将被评估为违约造成的损害,这意味着被保险人必须就逾期支付索赔提供证明:

  1. 逾期支付保险索赔已经造成实际经济损失;
  2. 损失的类型是保险人可以预见的,如果保险人逾期支付,合同各方都能考虑到可能发生的损失(Hadley v Baxendale(1854) 156 ER 145 一案正在做相关测试),并且;
  3. 被保险人已经采取合理步骤减轻损失;

如果保险人能够预见一家提出大笔海运货物索赔的中小型企业将依赖于保单的支付来持续其业务,那么保险人可能会因逾期付款而对其业务损失和利润损失负责。而对于一家规模较大的公司而言,如相关费用是因安排短期贷款或过渡性贷款而引起的财务费用,则依据个案的具体情形,损失赔偿可能最高限于外借资金的成本。

评价

《公司法》即将引入的修改尤为重要,主要是因为这些修改使保险人负有法律义务在一个特定时间段内对索赔作出响应,若在该时间段内未处理索赔则必须承担法律责任。

同时,保险人表示逾期付款的损害条款会对其业务操作带来相当大的不确定性,主要基于以下考虑:

  1. 可能导致额外的成本,例如额外招聘员工来处理索赔;
  2. 在起诉保险公司时,提出索赔的被保险人可能对逾期支付索赔造成的损害提出赔偿,以迫使保险人放弃抗辩。当索赔方因对方未支付保险保障利益而起诉保险公司并希望对保险公司施加压力,包括因利润损失而提出的大额索赔,将可能被视作一明智的策略。
  3. 保险公司自身可能面临对损失赔偿请求提出抗辩或付尽损失赔偿的风险,或者提高保费来抵御这一风险。

目前的伦敦市场上,一直在协调劳合社对《公司法》和《保险法》回应的劳埃德市场协会(LMA)仍在考虑出台新的规定,但他们表示打算发布保单示范条款来限制责任。

上述英国法案的修订无疑会影响中国保险公司发布的以英国法为适用法律或引入协会条款的保单。这还将引起保险公司对于处理灾难索赔(例如涉及2015年8月12日天津港火灾和爆炸的索赔)的考量。被保险人不仅可以向监管机关提出诉讼,而且在索赔没有尽快支付的情况下,以逾期支付索赔造成损害为由提出索赔。

目前,很难预测这些修改将产生的影响。我们有待几年后相关案件经过庭审实践产生一套完整的判例法来界定何为"合理的时间"以及针对特定案件采取何种合理的损失赔偿方案。保险行业因此需要拭目以待。

Change – Is It Always A Good Thing? (Chinese)

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