被保险人法律地位的反思与重构

被保险人在我国学界被认定为保险合同的关系人，但该认定本身依然存在内在的困惑与矛盾。基于保险合同分散风险、补偿损失的功能特点，保险合同中权利义务的结构分配相对于传统的民事合同有所不同：被保险人虽非订立合同的主体，但其享有保险金请求权，是保险合同所保障的对象。而保险合同关系人显然已无法完全体现被保险人在保险合同中的重要性。鉴于被保险人的实际功能以及理论体系的考量，应当将被保险人重新定位为保险合同的实际当事人，并将其体现于我国的立法之中：在投保人解除制度中，增加被保险人的介入权；在团体保险中增加被保险人的契约转换权；在中止复效制度中增加保险人催缴保费并说明后果的义务以及被保险人申请复效的资格；在投保人造成被保险人伤亡的制度中，规定投保人与被保险人不一致时保险人仍需承担责任的除外情形；在总原则中增加对被保险人倾斜保护的原则，使得被保险人的法律地位得以充分体现。

Rethink and Reconstitution the Legal Status of the Insured

It is commonly recognized in the area of insurance law in China that the insured should be regarded as the privy in insurance contract. However, such status quo has revealed inherent contradictions and caused confusion. First, although the insured is the privy under the insurance contract, he enjoys the most important right to claim insurance premium and is able to transfer the right to the beneficiary according to his will. The policy-holder is regarded as the contractor, but he bears the obligation to pay the premium and is not granted the right to claim the insurance premium. This goes against the norms concerning the relationship between the privy and contractor in the traditional civil law. Second and more specifically, although the policy-holder is recognized as a party in the contract and the insured is only the privy, the rights and obligations granted to the insured by the insurance law in our country significantly out number those of the policy-holder. The above contradictions and puzzles are mainly rooted in the unique functional characteristic of insurance contract, namely, insurance contract is a contract that aims for dispersing risks and compensating loss, which mainly serves for the interests of the insured.Because of this characteristic, insurance contract possesses unique rights and obligations distribution structure, which dramatically differ from that of the ordinary civil contract.Although the policy-holder is the person who sigh the insurance contract, he only enjoys limited and pre-agreed partial rights under the insurance contract after the contract goes into effect and the status of the policy holder in contract is featured by subordination. Although the insured may not necessarily be involved in the signing of the insurance contract, but because the purpose of the insurance contract is to protect his recognized interests in law, the insured’s rights and obligations prevails. In fact, the insured is equivalent to the party in a contract. In this sense, the existing definition that the insured is the privy in the insurance contract cannot adequately reflect the importance of the insured in the insurance contract and is not conducive to provide legal protection for the insured. In view of the insured’s actual function and the traditional theoretical system, we propose to continue carrying out the useful tradition of using commercial law to alter and update the concepts of civil law. Drawing on the innovations of company law that list the parties who are not the shareholders but can actually control the company through investment relations, agreements or other arrangements as the ″actual controllers″, it is suggested to relocate the insured as an ″actual insurance contractor″. In addition, the setting that the insured is actual contractor should be guaranteedthroughoutthe whole insurance legislation to compensate the inadequate protection of the insured's interest in the legislation caused by the deviation of the definition of the insured in the past theory. More specifically: in the system of rescission by policy-holder, we should pay more attention to the interest of insured and recognize the right of involvement of the insured; with respect to the system of group insurance, we should recognize the right of contract conversion of the insured; in the system of suspension and reinstatement of the policy, we should impose the obligation of the insurer to notice the payment of premiums and explain the consequences, as well as the eligibility of the insured to apply for reinstatement; with respect to the system of the insured’s casualties caused by the policy holder, we should make a change to stipulate that when the policy-holder and the insured are inconsistent, the insurer shall be responsible for the loss as the exceptions. In addition, we should recognize the principle of inclined protection for the insured and list it as a general principle in insurance law, so that the legal status of the insured can be adequately reflected.