REFLECTIONS ON THE BASIC FUNCTIONS OF JUDICIAL BIG DATA IN CHINA: TAKING THE ANALYSIS PROCESS OF AN INSURANCE CASE AS AN EXAMPLE

Hongyan Pan 원광대학교 법학연구소 2019 圓光法學 Vol.35 No.3

In the process of analyzing the case of whether the insurance company shall have the obligation to pay the insurance benefits for the insured’s death resulted from his or her drunk driving, the following sequence is followed. Firstly, carry out the academic theory promotion. Secondly, connect the process of academic theory promotion and judicial promotion. Then, make the judicial function-oriented big data observation. Finally, choose the litigation strategy and judicial judgment path. Judging from the connection degree of proof, evidence and fact, Article 45 of the Insurance Law of the People’s Republic of China (hereinafter referred to as the “Insurance Law”) only needs proving that the insured deliberately commits a crime, and there is no need to procedurally certify whether the insurer’s obligation to expressly explain those clauses that exempt the insurer from liability in the insurance contract is performed or not. Article 45 of the Insurance Law stipulates that where the insured deliberately commits crimes or resists the criminal compulsory measures adopted in accordance with applicable laws that cause him/her injured, disabled or dead, the insured shall not be liable for paying the insurance benefits. If the premium has been paid for more than two full years, the insurer shall return the cash value of the insurance policy as agreed in the contract. The core fact of the case “the insured dies due to drunk driving” is applied to this article, which can be intercepted as if the insured’s death results from him or her intentionally committing a crime, the insurer shall have no obligation to pay the insurance benefits. The death of the insured resulting from him or her intentionally committing a crime includes two possibilities. Firstly, the insured dies before the criminal judgment is made on the insured’s intentional crime. Secondly, the insured dies after the criminal judgment is made on the insured’s intentional crime. If the standard of proof of criminal crime is strictly followed, in the case of “the insured dies before the criminal judgment is made on the insured’s intentional crime”, it will fall into the following paradox: the insured cannot be prosecuted after his/her death, and the insured’s intentional crime cannot be confirmed without a lawsuit. The standard of proof of the “the insured’s intentional crime” should accord with the characteristic of the proof standard of civil ruling—— high probability. There exists a contradiction between the interpretation of the criminal proof standard in Article 22 of the Interpretation of the Supreme People’s Court on Several Issues concerning the Application of the Insurance Law of the People’s Republic of China (III) and the civil proof standard implied in Article 45 of the Insurance Law. Under the premise of the lack of effective legal documents of criminal investigation organs, prosecutorial organs and judicial organs (hereafter referred to as the “three organs”), the understanding and scope of other conclusive opinions of the three organs has become the key to resolving the aforementioned contradiction. From the perspective of semantics, the content connected by the word “or” in judicial interpretation is juxtaposed. Other conclusive opinion documents of the three organs must be juxtaposed with the effective legal documents of the three organs. Other conclusive opinions in practice include judicial expertise documents affirmed by the three organs and traffic accident responsibility confirmations (judicial expertise documents themselves are not conclusive opinions because the three organs are not the subject of appraisal institution. Therefore, they belong to other conclusive opinions only when the judicial expertise documents are adopted and affirmed by the three organs.)

RESEARCH ON PROBLEM ANALYSIS AND COUNTERMEASURE OF THE PILOT SCHEMES IN CATASTROPHE INSURANCE

Hongyan Pan 원광대학교 법학연구소 2020 圓光法學 Vol.36 No.1

Since the operation of the pilot schemes in catastrophe insurance, how to further deepen and popularize the catastrophe insurance system remains to be resolved. This paper discusses: concepts of catastrophe insurance transferring catastrophe risk and co-assistance fit; the “publicity” and “community” of catastrophe risk determine the necessity and limitation of government intervention in catastrophe insurance; there exists a contradiction between catastrophe insurance and law of large numbers and its solution; the degree and mode of intervention between catastrophe insurance’s market dominance and government intervention. Some useful suggestions are put forward for catastrophe insurance system: guide the public to participate in catastrophe insurance by system design; adopt compulsory insurance in frequency-occurring district of catastrophe; establish and improve catastrophe insurance rescue fund; adopt three-level joint guarantee of state insurance, reinsurance and insurance companies; establish and improve the “catastrophe reserve fund”. The pilot schemes in catastrophe insurance do not match the community characteristics of catastrophe risk, so its insurance coverage must be expanded. It is unreasonable that the premium is put to other uses which do not align with its goal; problems of premium operation and supervision can be solved by means of “catastrophe insurance premium trust”.

《中华人民共和国民法典》的颁布对《中华人民共和国保险法》的影响

반홍염(Hongyan Pan) 원광대학교 법학연구소 2020 圓光法學 Vol.36 No.3

作为中国法治文明进程的共同组成部分,我国民法典的编撰过程与保险法存在历史的交叠。在基本理念上,民法典与保险法和而不同:“和”在于制度融合,在于民法典规定制度在保险法立法及其解释层面的基础作用。“不同”在于:保险法是专门调整保险关系的部门法,保险法律制度的内核与保险原理和保险经营直接衔接。保险法的各项制度应当是建立在符合保险原理的保险经营实践基础上的,同时对保险交易惯例予以特别遵从和体现。在民法典的法治背景下,切实的问题是保险部门与民法典的理念和制度层面的对接,以及在此基础上保险部门法具体制度的完善、解释和适用。《民法典》中的民事主体制度、合同制度、侵权制度与《保险法》均存在制度融合的诸多维度。 As the common part of legal civilization in China, the compilation of the Civil Code of the People s Republic of China (hereinafter referred to as the “Civil Code”) has overlapped with the Insurance Law of the People s Republic of China (hereinafter referred to as the “Insurance Law”). On the basic concept, the Civil Code and the Insurance Law are harmony in diversity: harmony lies in the integration of systems and the basic role of systems stipulated in the Civil Code for the legislation and interpretation of the Insurance Law. “Diversity” lies in: insurance law is the branch law that specially adjusts insurance legal relations, and the core of insurance legal systems, insurance principles and insurance operation linked directly. The various systems of insurance law shall be established on the basis of insurance operation’s practice that accords with insurance principles, and at the same time give special compliance and embodiment to the practices of insurance transaction. After the promulgation of the Civil Code, the current problem is the connection between the Insurance Law and the Civil Code at the conceptual and institutional level, and the improvement, interpretation and application of the specific systems of insurance law on this basis. The civil subject system, contract system and tort system in the Civil Code are integrated with the Insurance Law in many dimensions.

保险判例解决路径及方法研究: 以一则被保险人醉驾死亡赔付争议案件为例

潘红,艳,(Hongyan Pan) 원광대학교 법학연구소 2019 圓光法學 Vol.35 No.3

机动车驾驶员(被保险人)由于醉酒驾车肇事而导致自己死亡, 被保险人的继承人与保险公司之间发生的诉讼纠纷。案件分析时将保险实践、保险司法争议、保险法律解释交织, 并以司法功能为导向进行。分析过程形成多维立体思维的四个逻辑面:学理推进逻辑面, 司法推进逻辑面, 证据事实推进逻辑面及三个逻辑面的思维连接逻辑面。具体过程为:萃取本案核心事实并获得首选方案、解读《保险法》第45条及其司法解释、以司法功能为导向检视学理推进过程、进行司法大数据分析、探查本案的其他解决路径。对“被保险人故意犯罪”的两个层次的论断在司法审判过程中是接续进行和结果共通的:法官的判断源自于当事人(包括当事人的代理律师)对案件事实、证据的揭示, 法官在判断基础上进行的裁判又通过判决结果的当事人认知程度而得以确认或否定。 The motor vehicle driver (the insured) because of drunk driving accident and cause their own death, the insured s heirs and insurance company between the litigation dispute. In case analysis, insurance practice, insurance judicial dispute and insurance legal interpretation are interwoven, and the judicial function is the guide. The process of analysis forms four logical planes of multi-dimensional thinking: the logical plane of academic theory advancing, the logical plane of judicature advancing, the logical plane of evidence facts advancing and the logical plane of thinking connecting three logical planes. The specific process is as follows: extracting the core facts of the case and obtaining the preferred solution; interpreting article 45 of the insurance law and its judicial interpretation; examining the promotion process of the theory based on judicial functions; conducting judicial big data analysis; exploring other solutions to the case. Of intentional crime the insured two levels of judgment in the judicial process is succeeded and results in common: the judge s judgment is derived from the parties (including the attorney) of the parties to the case facts and evidence reveals that the judge based on the judgment of referees and through the verdict of the cognitive degree and be able to confirm or deny.