The Study on the Structure and Violated Effect of the “Obliegenheit ” in Insurance Contract

• Main Authors: Liao,Po-Chun, 廖伯鈞
• Other Authors: Chiang,Chao-Kuo
• Format: Others
• Language: zh-TW
• Published: 2005
• Online Access: http://ndltd.ncl.edu.tw/handle/24106435672231024042

碩士 === 國立臺北大學 === 法學系 === 93 === The study on the structure and violated effect of the “Obliegenheit ” in insurance contract By LIAO, PO-CHUN JULY 2005 ADVISOR(S): Dr. CHIANG, CHAO-KUO DEPARTMENT: DEPARTMENT OF LAW MAJOR（No more than ten words）：FINANCIAL LAW DEGREE（Do not use abbreviations）: MASTER OF LAW There are numerous regulations in insurance law or clauses in insurance contract, which demanded Policyholder, assured or other beneficiary to perform specified conducts in the terms. It is a relevant way that insurers would control their covering risk or legal duty. It was called “Special clause” in insurance law of Taiwan. These articles under third section (Article 66) provide that “A special clause is a clause whereby the parties represent and warrant performance of a special obligation apart from the basic terms and conditions of the insurance contract” and “When a party to an insurance contract breaches a special clause, the other party may rescind the contract”, but in insurance practice, how to define it and how to provide the legal consequence is a serious and relevant problem now. As everybody knows Obliegenheit is one of the central provisions of the German insurance contract law (VVG). It deals in a general and abstract way with a number of situations that in English insurance contract law are grouped together under the labels of failure of condition or breach of warranty. In both systems, the policyholder or assured is penalized for certain undesirable conduct by forfeiture of this insurance claim by requiring not only the objective breach of a condition or warranty but also fault on the part of the policyholder or assured and a causal connection between the breach and the occurrence of the assured event or the amount of the loss. As a generic term for rules of this kind, German theory and practice have established the legal term Obliegenheit. It is left untranslated. There is no English equivalent combining in the same way the concepts of a personal duty and of a condition and at the same time covering such a wide range of different situations. This section deals with rules established by contract clauses and covering conduct before and after the occurrence of the insured event: similar rules apply to the disclosure of material facts prior to the making of the contract and the conduct concerning an increase of the Hazard. Therefore, for this thesis, constructing the duty system of Obliegenheit in our insurance law is the most important purpose.