金融法（双语）第七章保险法律制度

,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,第七章 保险法律制度,一、保险简介,二、保险合同,三、保险机构,第七章 保险法律制度,一、保险简介,1. 中国保险简介,保险的概念：,广义的保险：商业保险和社会保险,狭义的保险：商业保险作为金融行业中的保险,保险业经营概述,保险业法律体系：以?保险法?1995公布为核心，以及?保险公司管理规定?、?外资保险公司管理条例?及?外资保险公司管理条例实施细那么?、?保险公估机构监管规定?、?保险专业代理机构监管规定?、?保险经纪机构监管规定?等一系列配套的保险法规。,保险业监督体系：以中国保监会为核心的保险业监管体系。,机构监管和功能监管相结合,微观审慎和宏观审慎监管相结合,现场检查和非现场监管相结合,专业监管和外部监督相结合,“四位一体的格局：政府监管、行业自律、,企业内控和社会监督,第七章 保险法律制度,2.,Brief introduction of American Insurance,Concept of Insurance：no unified legislative definition，,1938,State ex rel. Duffy v. Western Auto Supply Co.,Regulation System of Insurance：relatively strict in America &,regulated by each state.,Legal System of Insurance：no unified national,Insurance Law,，scattered in legislation of every state,concluding:,setting up insurance company, financial supervision of Insurance, the protection of the insureds benefit,Administration of Insurance Regulation in each state,一、保险简介,第七章 保险法律制度,3.,案例资料,一、保险简介,State ex rel. Duffy v. Western Auto Supply Co,.,Fact-,1An automobile manufacturer undertakes,to indemnify the owner of such tires against all road hazards (except fire and theft,).,2The,terms employed in the guarantee are sufficiently broad to include not only damage from blowouts, cuts and bruises, whether resulting from under-inflation, faulty brakes or misalignment, but any and every hazard, including collisions, whether resulting from negligence of the owner or another.,第七章 保险法律制度,3.,案例资料,一、保险简介,State ex rel. Duffy v. Western Auto Supply Co,.,Parties,contentions-,Plaintiffs(relator):,1Any,agreement in the sale of any product which is a warranty against defects in material or workmanship is not,insurance.,2The,special guarantee of material and workmanship, unlimited as to time, shows that the general guarantee is for another and different purpose and relates to injuries sustained from exterior causes, and also that the clause, should the tire fail within the replacement period, with no limitation as to cause, shifts from the buyer to the seller the risk of accidental damage or loss which is independent of and entirely unrelated to quality of material or workmanship.,第七章 保险法律制度,3.,案例资料,一、保险简介,State ex rel. Duffy v. Western Auto Supply Co,.,Parties contentions-,Respondent,:,1The,agreement of warranty in either of the forms it uses in the sale of its tires is intended only as a guarantee of material and workmanship and provides a method of carrying out and performing its contract of guarantee which, from its experience, has proved most satisfactory to its customers and the trade generally,.,2These,agreements of guaranty have to do only with the product sold by the respondent and are a part of the sale transaction between itself and its customer, and that the undertaking is limited to a guarantee that the tire will render service for a stipulated period and that in neither of the forms employed is there any promise of financial return to the purchaser in any event, but only to repair the damaged tire without charge or to replace it upon the payment of the specified proportion of the current price covering the remainder of the stipulated period of service guaranteed.,第七章 保险法律制度,3.,案例资料,一、保险简介,State ex rel. Duffy v. Western Auto Supply Co,.,Courts reasoning-,1Insurance,is a contract by which one party, for a compensation called the premium, assumes particular risks of the other party and promises to pay to him or his nominee a certain or ascertainable sum of money on a specified contingency. As regards property and liability insurance, it is a contract by which one party promises on a consideration *259 to compensate or reimburse the other if he shall suffer loss from a specified cause, or to guarantee or indemnify or secure him against loss from that cause.,2A,warranty promises indemnity against defects in the article sold, while insurance indemnifies against loss or damage resulting from perils outside of and unrelated to defects in the article itself.,第七章 保险法律制度,3.,案例资料,一、保险简介,State ex rel. Duffy v. Western Auto Supply Co,.,Courts reasoning-,3 Even if such contract is an incident in the sale of merchandise and its use therein does not constitute the business of insurance, it in effect is a contract substantially amounting to insurance within the restrictive provisions of Section 665, General Code.,第七,章 保险法律制度,二,、保险合同,1.,中国的保险合同,保险合同概述,保险合同的主体,保险合同的客体,保险合同的形式与内容,保险合同的解除,保险合同的格式条款,第七,章 保险法律制度,二,、保险合同,2,.,美,国的保险合同,Brief,introduction of the insurance contract,Subject of insurance contract,Coverage of insurance contract：insurable interest,Conclusion of insurance contract：the same as the other commercial contract,Policy: concept, types, content,Information Disclosure of insurance contract & Exception,第七,章 保险法律制度,二、保险合同,3. 案例资料,People ex rel. Cuomo v. Wells Fargo Ins. Services, Inc.,Fact-,1Insurance broker, Wells Fargo, act as agents for organizations and individuals seeking to purchase insurance. Wells Fargo deals with insurance companies on those customers behalf, obtains quotes from the insurers, and presents them to the customers; and it also offers the customers recommendations about what coverage will best suit their needs.,2Wells Fargo entered into a number of “incentive arrangements with insurance companies, in which the insurance companies rewarded Wells Fargo for bringing them business.,3as a result of the incentive programs, Wells Fargo “steered its customers to particular insurance companies and away from others that did not participate in the programs.,Procedural History-,Supreme Court dismissed the complaint with leave to replead. The Attorney General chose not to replead, but appealed to the Appellate Division, which affirmed the. We granted leave to appeal, and now affirm.,the order of the Appellate Division should be affirmed, with costs.,第七,章 保险法律制度,二,、保险合同,3.,案例资料,People ex rel. Cuomo v. Wells Fargo Ins. Services, Inc,.,Parties contentions-,Plaintiffs,:,1,An,insurance broker is the agent of the insured,2,A,principal-agent relationship is, by nature, a fiduciary relationship,3,A fiduciary,must disclose to its principal any interest in a particular transaction that causes the fiduciarys loyalties to be divided,.,Defendants:,1We,have already decided the fiduciary duty issue in its,favor.,2,The,law is reasonably settled on initial principles that insurance agents have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage,第七,章 保险法律制度,二、保险合同,3. 案例资料,People ex rel. Cuomo v. Wells Fargo Ins. Services, Inc.,Courts reasoning-,1 Even if it had no duty to give advice, Wells Fargo clearly could not give advice in bad faithit could not, for example, advise a customer to buy coverage that Wells Fargo knew to be inferior, in exchange for an under-the-table payment to Wells Fargo from the insurer.,2A broker is the agent of the insured, but it customarily looks for compensation to the insurer, not the insured, and it is sometimes the insurers agent alsofor example, when collecting premiums. We have thus referred to the brokers “dual agency status.,3The word “broker suggests an intermediarynot someone with undivided loyalty to one or the other side of the transaction.,4A broker need not disclose to its customers contractual arrangements it has made with insurance companies. Arrangements like those the Attorney General complains of have been commonplace, and have not generally been disclosed.,5This nondisclosure may be a bad practice. Indeed, it is prohibited by a recently adopted regulation of the Insurance *172 Department, but that regulation did not exist at the time of the conduct at issue here,第七,章 保险法律制度,三、保险机构,1.中国的保险机构,保险机构的种类：保险公司与保险中介机构,保险公司的设立、营业范围、保险资金的运用形式,保险公司的特殊要求：1最低偿付能力的维持。,2保证金。,3保险公积金。,4保险准备金。,5保险保障基金。,保险公司的风险管理：1自留保险费。,2承包责任的限制。,3再保险。,保险中介机构的概念,保险中介机构的种类：1保险代理机构,2保险经纪人,保险经纪人的业务范围,3保险公估机构,第七,章 保险法律制度,三,、保险,机构,2.,美国的保险机构,Insurer & insurance,intermediary,Setting up an insurer,Restriction of insurer,Insurance Regulators supervise,Bankruptcy,of,insurer,Insurance intermediary,：,insurance agent,、,insurance broker,、,others,I,nsurance agent, qualification, types, regulation,I,nsurance broker, qualification, business,scope,O,thers,: insurance rating organization,第七章 保险法律制度,三、保险机构,3. 案例资料,In the Matter of AMERICAN RELIABLE INSURANCE COMPANY,Fact ,1Respondent American Reliable at all relevant times has been an insurer licensed by the Department to transact insurance in this state.,2Cabrillo General Insurance Agency, Inc. at all relevant times has been a general agent of American Reliable, authorized to accept insurance applications on American Reliables behalf, and to enter into agreements with sub-producers to write insurance with American Reliable.,3Superior Access Insurance Services is a California licensed fire and casualty broker-agent and “producer of insurance.,4American Reliable, via Cabrillo, provided its underwriting guidelines to Superior Access, instructed Superior Access to apply those criteria to applications, and directed and incentivized Superior Access to submit compliant applications to it and not to submit noncompliant applications to it.,5From at least September 2003, American Reliable permitted Superior Access, while acting as American Reliables agent, to collect fees from American Reliable policyholders. These fees were in addition to the premium American Reliable was entitled to charge based on its approved rates.,6By permitting Superior Access to charge and collect fees, American Reliable constructively charged and collected premium in excess of the premium permitted under the rate filings approved for it by the Department,第七章 保险法律制度,三、保险机构,3.,案例资料,In,the,Matter of AMERICAN RELIABLE INSURANCE,COMPANY,Reasoning,1The,word producer is an industry term of art that refers to both insurance agents and insurance,brokers,. Whether a producer is an agent or a broker depends on the nature of the producers relationship with the insurance company with which the producer places a particular client.,2 Superior Access has transacted insurance with American Reliable as American Reliables agent.,Superior,Access arguably had written binding authority from American Reliable. Binding authority is a dispositive indicium of an agency relationship.,3American,Reliable, via Cabrillo, thereby asked Superior Access to perform an insurer function, and thus to act on behalf of American Reliable. Consequently, Superior Access was American Reliables agent.,4If the intermediary is subject to the direction and control of both other parties, the intermediary is a dual,agent. A dual,agent is deemed to be an insurance agent, not an insurance broker. American Reliable, via Cabrillo, directed and controlled Superior Access with respect transactions of insurance by Superior Access with American Reliable. Superior Access therefore acted as an agent of American Reliable.,5Superior Access had an ongoing and continuous relationship with American Reliable via Cabrillo, and was thus an agent of American Reliable, rather than a broker for the insured,.,第七章 保险法律制度,三、保险机构,3.,案例资料,In,the,Matter of AMERICAN RELIABLE INSURANCE,COMPANY,Requiring-,1Exercise,due diligence to prevent its agents from charging a fee for a transaction of insurance;,2Reimburse,the Department $5,000 for its costs in investigating and prosecuting this matter;,3Refund,all fees illegally collected by Superior Access and constructively received by American Reliable;,第七章 保险法律制度,三、保险机构,3.,案例资料,In,the,Matter of AMERICAN RELIABLE INSURANCE,COMPANY,Orders -,1Use,due diligence to assure that none of its agents charges a fee for a transaction of insurance;,2Pay,the Department $5,000 to reimburse it for its costs in investigating and prosecuting this matter, pursuant to the Special Notice of Defense;,3Pay,the Department $10,000 as a monetary penalty, pursuant to the Special Notice of Defense;,4Refund,all fees collected by Superior Access associated with the placement of a policy with Respondent, in accordance with the agreement contained in Special Notice of Defense;,5Otherwise,comply with the Special Notice of Defense.,第七章 保险法律制度,四、保险业务,1.中国的保险业务,保险业：特许行业,中国保险业务：,人身保险业务包括人寿保险、健康保险、意外伤害保险等,财产保险业务包括财产损失保险、责任保险、信用保险、保证保险等,不得兼营人身保险业务和财产保险业务,保险业务的开展：应当遵循公平竞争的原那么，不得从事不正当竞争,?保险法?禁止在保险业务活动中从事的行为,第七章 保险法律制度,四、保险业务,2.,美国的保险业务,Types: Life & Health Insurance, Property & Disaster Insurance,Separate operation system on insurance:,Glass-Steagall Act,Insurance Law,in majority of states,Regulated by each state: market behavior &,price,第七章 保险法律制度,四、保险业务,3. 案例资料,Calfarm Ins. Co. v. Deukmejian,Fact-,1Insurance rates are to be immediately reduced to “at least 20 percent less than those in effect on November 8, 1987,2All rate increases require the approval of the Insurance Commissioner, who may not approve rates which are “excessive, inadequate, unfairly discriminatory or otherwise in violation of the initiative. Prior to November 8, 1989, however, rates may be increased only if the commissioner finds “that an insurer is substantially threatened with insolvency.,3The initiative prohibits an insurer from declining to renew a policy except for nonpayment of premium, fraud, or significant increase in the hazard insured against,4Insurers are required to mail notices to policy holders informing them they may join a nonprofit corporation to be formed to represent their interests by persons appointed for this purpose by the Insurance Commissioner.,第七章 保险法律制度,四、保险业务,3. 案例资料,Calfarm Ins. Co. v. Deukmejian,Parties contentions-,Petitioners,1Attack the constitutionality of this limitation of rate adjustments prior to November 1989 to insurers substantially threatened with insolvency .,2Insurers will be compelled to charge confiscatory rates pending administrative relief.,3 The provision was intended to apply to policies in force when Proposition 103 was enacted but maintain that the application of this provision to such policies would in effect alter their terms, and thereby violate the constitutional prohibition against a “law impairing the obligation of contracts .,4 Since the constitutional provision says that no statute which violates it “may . have any effect, the invalid language is non-severable and invalidates the whole of Proposition 103.,第七章 保险法律制度,四、保险业务,3.,案例资料,Calfarm Ins. Co. v.,Deukmejian,Proponents,1The,insolvency standard can be sustained as a temporary or emergency measure.,And temporary,freezes while administrative machinery is set up are commonly approved, even if they lack any method whereby a seller can get relief,2The,insolvency standard in Proposition 103 was inserted to combat an emergency created by unavailable and unaffordable insurance.,3The,non-renewal provision applies to policies issued before enactment of Proposition 103,.,第七章 保险法律制度,四、保险业务,3.,案例资料,Calfarm Ins. Co. v.,Deukmejian,Courts reasoning-,1Limiting,first-year-rate adjustments to insurers substantially threatened with insolvency, is facially,invalid.,2Subdivision,(b) cannot be,sustained as,a emergency measure fashioned to meet a temporary exigency.,The,asserted rise in insurance rates, rendering insurance unavailable or unaffordable to many, is not a temporary problem; it is a long term, chronic situation which will not be solved by compelling insurers to sell at less than a fair return for a,year.,3The,initiative provision requiring a reduction in rate to at least 20 percent below 1987 rates does not, on its face, violate the due process rights of insurers.,The,commissioner has the power to grant interim relief from plainly,invalid.,第七章 保险法律制度,四、保险业务,3.,案例资料,Calfarm Ins. Co. v.,Deukmejian,Courts reasoning-,4is,relatively moderate and restrained, and the hurdle correspondingly low. The insurer may still refuse to renew policies for nonpayment of premium, fraud or misrepresentation, or substantial increase in the hazard insured against.,5The,public interest in averting this danger, when measured against the relatively low degree of impairment of contract rights involved, is sufficient to justify Proposition 103s non-renewal provision, and accordingly that this provision can be applied to existing policies without violating the state or federal Constitutions.,6The,consumer-advocacy provision of Proposition 103 does violate article II, section,12 of,the California Constitution, but is severable and does not affect the balance of the,initiative,.,第七,章 保险法律制度,五、保险业的监管,1.中国对保险业的监管,中国保监会概述,法律依据：中国?保险法?,保监会的监管职能：,市场准入的监管,保险公司运营的监管,保险业市场的监管,保监会为履行职能有权采取的措施,第七,章 保险法律制度,五、保险业的监管,2,.,美,国对保险业的监管,Regulation system of Insurance,Paul,v.,Virginia, 1869,Issuance of insurance policies is not a commercial transaction, so federal government cannot regulate,Insurance pursuant to Commerce,Clause in Constitution.,In 1871,states established,NAIC voluntarily.,In,1944,United States v. South-Eastern Underwriter,Association,reversed,Paul v.,Virginia.,The Supreme Court contended that insurance was interstate transaction, which belonged to,Commerce Clause,and could be regulated by federal government.,In 1945,McCarran-Ferguson Act of,1945,reclaimed that Congress admitted the current insurance regulation system of states.,Sherman Act,the,Clayton,Act and the,Federal Trade Commission,Act,shall be applicable to the business of insurance to the extent that such business is not regulated by State law.,第七,章 保险法律制度,五、保险业的监管,2,.,美,国对保险业的监管,NAIC plays an important role in insurance regulation.,NAIC: non-profitable organization.,With the help of,NAIC, the divergence of insurance regulation among states becomes less and the standards of regulation tend to be unified.,Disadvantages of American insurance regulation system,a. not good for avoiding and managing system risk,b. hard to make a consensus in formulating international principle,c. have negative influence on competition and the development of market entity.,DODD-FRANK,WALL STREET REFORM AND CONSUMER PROTECTION,ACT:,Established Federal Insurance Office,第七,章 保险法律制度,五、保险业的监管,3.案例资料1,McCarran-Ferguson Act of 1945,1That the Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.,2The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.,3No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance：Sherman Act, the Clayton Act, and the Federal Trade Commission Act shall be applicable to the business of insurance to the extent that such business is not regulated by State law.,第七,章 保险法律制度,五、保险业的监管,3.案例资料1,McCarran-Ferguson Act of 1945,4Until January 1, 1948, the Sherman Act, the Clayton Act, and the Federal Trade Commission Act, and the Robinson-Patman Anti-discrimination Act, shall not apply to the business of insurance or to acts in the conduct thereof.,5Nothing contained in this Act shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.,第七,章 保险法律制度,五、保险业的监管,3.案例资料2,Federal Insurance Office Act of 2021,1There is established within the Department of the Treasury the Federal Insurance Office.,2The Office shall be headed by a Di