Insurance law in China / edited by Johanna Hjalmarsson, Informa Senior Research Fellow in Maritime and Commercial Law at the University of Southampton and Dingjing Huang, Postgraduatre Researcher at the University of Southampton.
2015
KNQ998 .I59 2015 (Map It)
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Title
Insurance law in China / edited by Johanna Hjalmarsson, Informa Senior Research Fellow in Maritime and Commercial Law at the University of Southampton and Dingjing Huang, Postgraduatre Researcher at the University of Southampton.
Published
Milton Park, Abingdon, Oxon [UK] ; New York, NY : Informa Law from Routledge, 2015.
Call Number
KNQ998 .I59 2015
Former Call Number
Ch.P 655 In795 2015
ISBN
9781138785090 (hardback)
1138785091 (hardback)
9781315768021 (ebook)
131576802X (ebook)
1138785091 (hardback)
9781315768021 (ebook)
131576802X (ebook)
Description
xlviii, 380 pages ; 24 cm.
System Control No.
(OCoLC)881440864
Summary
"The Chinese insurance market is expanding enormously as risk adversity takes hold in the economy while the role of the State as guarantor of commerce is gradually reduced. In addition, insurance is a heavily regulated field with detailed contract law stipulations. An introduction to regulation and contract law and an understanding of current issues is essential for someone seeking to do business in the Chinese market. Insurance law is also a field that translates well from one jurisdiction to another, and academics will be interested in understanding how issues are dealt with in another jurisdiction.The book seeks to present and discuss current topics in Chinese insurance law and regulation to an English-speaking audience knowledgeable of common law insurance law and international insurance business. The combined effect of the papers is to present Chinese insurance law to an audience unfamiliar with Chinese law, in a readable and accessible essay chapter format. Each chapter is written by an expert in the field and goes beyond a basic introduction to provide in depth well-researched information and academic analysis on the topic in question"-- Provided by publisher.
"The book seeks to present and discuss current topics in Chinese insurance law and regulation to an English-speaking audience knowledgeable of common law insurance law and international insurance business"-- Provided by publisher.
"The book seeks to present and discuss current topics in Chinese insurance law and regulation to an English-speaking audience knowledgeable of common law insurance law and international insurance business"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Series
Record Appears in
Added Author
Table of Contents
Foreword / Mark Cranshaw
xvii
Foreword / Rob Merkin
xix
Preface
xxi
Author biographies
xxv
Table of cases
xxix
Table of judicial interpretations and other court instructions
xxxv
Table of legislation
xxxvii
Table of decisions, directives, regulations, treaties, conventions, standard contract terms, guidelines and reports
xliii
pt. I
Principles of insurance
1
1.
Introduction to Chinese insurance law / Yiqing Yang
3
1.
Brief history of the Chinese insurance industry
3
1.1.
Pre-1949: before the People's Republic of China
3
1.2.
1949--1979
4
1.3.
1979--2000: economic reforms and China's insurance industry
5
1.4.
Present potential of China's insurance industry
6
1.5.
Today's PICC and China Re
6
1.5.1.
PICC Property and Casualty Company Ltd
7
1.5.2.
China Life Insurance (Group) Company
7
1.5.3.
China Re
8
2.
Insurance organisations and legal sources
9
2.1.
Insurance organisations
9
2.2.
Chinese insurance law sources
10
2.2.1.
Chinese Insurance Act 1995
10
2.2.2.
Chinese Insurance Act 2002
11
2.2.3.
Chinese Insurance Act 2009
12
2.2.4.
Regulations and rules
13
2.
The law relating to access to insurance markets in China / Tingzhong Fu
15
1.
Introduction
15
2.
Definition of foreign capital insurance company
16
2.1.
Sino-foreign joint-venture insurance companies
16
2.2.
Exclusive investment company
17
2.3.
Branch office
17
3.
The commitments made by the Chinese government at the time of accession to the WTO
17
3.1.
The scope of insurance commitments
18
3.2.
The commitments on type of organisation of foreign capital insurance companies
18
3.3.
Commitments on scope of region
19
3.4.
Commitments about the scope of business
20
4.
Qualifications of foreign insurance companies
20
4.1.
Property requirements
20
4.2.
The representative office
20
4.3.
Sufficient registered capital
21
4.4.
Well-developed insurance supervision system
21
5.
National treatment for foreign companies
22
5.1.
Compulsory insurance
22
5.2.
Reinsurance
22
6.
Procedure for application
22
6.1.
Application
22
6.2.
Examination
23
6.3.
Preparation of establishment
23
6.4.
Approval
23
6.5.
Registration
24
6.6.
Drawing the cash deposit
24
7.
Supervision and management of foreign capital insurance companies
24
7.1.
Prohibition of illegal associated transactions
24
7.2.
Management reporting
25
7.3.
Winding up and liquidation of foreign capital companies
26
7.4.
Legal liabilities
26
7.4.1.
Administrative liability
26
7.4.2.
Criminal liability
27
8.
An evaluation of the system in respect of access to the market of China
27
8.1.
There are no regulations in respect of access to China's market by means of a share purchase
27
8.2.
There is an omission in the procedural rules
27
8.3.
There are no provisions regarding coordination between the host country and the home country of foreign insurers
27
3.
Insurance brokers under Chinese law / Dr Miao Li
29
1.
Background
29
2.
The development of insurance broking in China
30
2.1.
The general market
30
2.2.
The admittance of foreign insurance broker companies
30
3.
The requirements to set up a broker firm in China
31
3.1.
The business form
31
3.2.
The minimum share capital
31
3.3.
The reserve fund or professional indemnity insurance
31
3.3.1.
Professional indemnity insurance
31
3.3.2.
Reserve fund
32
3.4.
The branches
32
3.5.
Foreign-invested broker firms
32
4.
Activities of a licensed insurance broker company
33
5.
Duties under the current law and regulation
33
5.1.
Duty of disclosure
33
5.2.
Premium
34
5.3.
Commission
35
5.4.
Prohibited activities
35
6.
Recent developments
36
4.
Faraway, so close: some theoretical reflections on the application of competition law to the insurance sector in EU and China / Dr Andrea Lista
38
1.
Introduction
38
2.
Overview of the EU and China competition regulatory framework
39
3.
The application of competition law to the insurance industry: general issues and background
40
4.
Article 101 of the TFEU and Article 13 of the Chinese Anti-Monopoly Law: the control of collusive behaviours
42
4.1.
Article 101 of the TFEU
42
4.2.
Anticompetitive ('monopoly') agreements under Chinese law
43
5.
Regulation of forms of horizontal cooperation between insurers in Europe and China
45
5.1.
Forms of horizontal cooperation between insurers in China
45
5.2.
The EU scenario
47
5.2.1.
The new regime for joint compilations, tables and studies under Regulation 267/2010
49
5.2.2.
Assessment of information exchange in light of the EU Commission's guidelines on horizontal cooperation agreements
54
5.2.3.
The current EU regime for co-insurance and reinsurance pools
57
5.2.4.
Agreements on standard policy conditions
62
5.3.
Joint determination of approved safety equipment in the EU
65
6.
Abuse of dominant position in EU and China
66
6.1.
Article 102 of the TFEU: abuse of dominant position and mergers regulation in the EU
66
6.1.1.
Article 102: meaning and issues
66
6.1.2.
The relevant product market
67
6.1.3.
The relevant geographic market
67
6.2.
The EU Merger Regulation regime
68
6.3.
Abuse of dominant position and mergers regulation in China
70
6.3.1.
Article 17 of the China Anti-Monopoly Law: the abuse of dominant position
70
6.3.2.
The Chinese mergers regulatory regime
71
7.
Mergers and acquisitions in the Chinese insurance market
72
8.
The regulation of EU insurance mergers
75
8.1.
EU insurance mergers and the analysis of the relevant geographic market
75
9.
The analysis of the relevant product market
79
9.1.
The definition of the relevant product market in the EU insurance sector
80
10.
The assessment of dominance
82
10.1.
In defence of the concept of 'collective dominance': a possible valid alternative for the assessment of EU insurance mergers and acquisitions?
88
11.
The way forward: a possible different regime for mergers and acquisitions in the EU insurance sector?
91
12.
Conclusive remarks
95
5.
Current issues and developments in Chinese insurance law / Beiping Chu
96
1.
Introduction
96
2.
Insurable interest
97
2.1.
The test of insurable interest
97
2.2.
Who must possess an insurable interest?
98
2.3.
The time when the insurable interests should be at hand in property insurance
98
3.
Causation
99
3.1.
The current rules on causation in Chinese insurance law
99
3.2.
Problems in practice
100
3.3.
Current trends
101
4.
Utmost good faith
102
4.1.
There are concepts of good faith in Chinese law, but no concept of utmost good faith
102
4.2.
The principle of good faith in China shares its core connotation with utmost good faith
102
5.
Limitation of action in subrogation and liability insurance
104
5.1.
Subrogation
104
5.2.
Commencement of limitation of action for subrogation
105
5.3.
Limitation of action in respect of liability insurance
106
6.
Direct action against P&I Club
108
6.1.
Whether a P&I Club is a commercial insurance organisation
108
6.2.
Direct actions against P&I Clubs
110
7.
Summary
111
6.
Jurisdiction, applicable law and dispute resolution / Dr Wenhao Han
113
1.
Jurisdiction
113
1.1.
People's Court in the People's Republic of China
113
1.2.
Territorial jurisdiction
114
1.3.
Consensual agreement on jurisdiction
115
1.4.
Forum non conveniens
116
1.5.
Service of process
116
2.
Applicable law
117
2.1.
General principles
118
2.2.
'Closest connection' test
118
2.3.
Detailed rides
119
2.3.1.
Contracts
119
2.3.2.
Consumer contacts
119
2.3.3.
Employment contracts
119
2.3.4.
Tort
119
2.3.5.
Product liability
120
2.3.6.
Unjust enrichment and negotiorum gestio
120
2.3.7.
Arbitration agreement
120
3.
Dispute resolution
121
3.1.
Litigation
121
3.1.1.
Issuing the proceedings
121
3.1.2.
Disclosure
121
3.1.3.
Expert witness
122
3.1.4.
Right to appeal
123
3.1.5.
Costs and interest
123
3.1.6.
Time limitation
124
3.1.7.
Time for judgment
125
3.2.
Arbitration
125
3.2.1.
Arbitration agreement
126
3.2.2.
Ad hoc arbitration and arbitration centres
127
3.2.3.
Choice of arbitrators
128
3.2.4.
Interim measures
128
3.2.5.
Disclosure
129
3.2.6.
The award
129
3.2.7.
Right to set aside
129
3.2.8.
Foreign arbitration awards
131
3.3.
Mediation
131
pt. II
Specific forms of insurance
133
7.
Liability insurance / Dr Tao Yu
135
1.
Fundamental theories of liability insurance
135
1.1.
Liability insurance: a relationship among three parties
135
1.2.
History of liability insurance
136
1.3.
Liability risks
137
1.4.
Hold harmless agreement
140
1.5.
Concurrence of tortious liability and liability for breach of contract
140
2.
Present regulatory structure
141
2.1.
Subject matter insured by liability insurance
141
2.2.
Pay to the insured versus pay to the third party
146
2.3.
Third party's right of direct action
150
2.3.1.
Article 65 of the Insurance Act
153
2.3.2.
Article 76 of the Road Traffic Safety Law
157
2.4.
Liability insurance for litigation expenses
161
3.
Notification of claim
163
4.
Intentional damage exclusion clause
166
4.1.
Statutory provisions
167
4.2.
Terms of the contract
168
5.
Relationship between underlying action and insurance action
169
8.
IP insurance in the Chinese legal climate / Dr Hua Li (Lena Todd)
172
1.
Greater awareness of intellectual property (IP) protection and risk of potential infringement
172
2.
Insurance helps IP protection and innovation
175
3.
IP litigation is an arbitrary exercise of discretion rather than rule-based
176
4.
Application of IP law is by declaration rather than by clarification
186
5.
IP insurance reform of adjudication
189
9.
Legislative and regulatory methodology and approaches: developing catastrophe insurance in China / Mateusz Bek
191
1.
Introduction
191
2.
The example of agricultural insurance in China
193
3.
Consumer catastrophe insurance: predicting the future
195
4.
Legislation
196
5.
The setting up of a scheme
196
6.
Achieving penetration
199
7.
Premium calculation
200
8.
Enforcement by incentive
201
9.
Compulsory insurance
203
10.
Public-private partnerships and the law
203
11.
Conclusions
205
pt. III
Marine insurance
207
10.
An introduction to the law and practice of marine insurance in China / Pengnan Wang
209
1.
The sources of marine insurance law in China
209
1.1.
The law of marine insurance contracts in China: Chapter 12 of the Chinese Maritime Code
209
1.2.
General insurance law in China
210
1.3.
Summary: the sources of marine insurance law in China
210
2.
Main features of marine insurance law in China
211
2.1.
Valued marine policies
211
2.2.
Duty of pre-contractual disclosure
211
2.3.
Warranties
211
2.4.
Sue and labour
212
2.5.
Subrogation
212
3.
The impact of general insurance law upon marine insurance law
213
3.1.
The principle of insurable interest
213
3.2.
The insurer's duty to explain the exclusion clauses in a standard insurance contract
213
3.3.
The court's discretion to explain a standard insurance contract in favour of the assured
214
3.4.
Delay in payment of premium
214
3.5.
Delay in payment of insurance indemnity or claims
215
3.6.
Substantially increased or reduced risks
215
3.7.
Fraudulent insurance claims
216
3.8.
Direct actions against a liability insurer
216
3.9.
Reinsurance
216
3.10.
Concluding remarks
217
4.
The main features of marine insurance clauses in China
217
4.1.
The brief history of PICC P&C Hull Clauses
217
4.1.1.
Before 1972
217
4.1.2.
First PICC Hull Clauses 1/1/72
217
4.1.3.
PICC Hull Clauses 1/1/86
217
4.1.4.
PICC P&C Hull Clauses 2009
218
4.2.
The main features of PICC P&C Hull Clauses 2009, compared with ITCH 1/10/83
218
4.3.
Emerging trends in Chinese hull insurance market
219
4.3.1.
Fleet insurance organised by the head office of a corporate group
219
4.3.2.
Use of ITCH 1/10183 in fleet insurance
219
4.4.
A brief history of the PICC marine cargo clauses
219
4.5.
The main features of PICC P&C Marine Cargo Clauses 2009
219
4.6.
Remarks
220
11.
Law and practice of civil liability insurance for ship-source oil pollution damage in China / Ke Wei
221
1.
Introduction
221
2.
Legislative status of civil liability insurance for ship-source oil pollution damage in China
222
2.1.
International conventions on oil pollution joined by China and their implementation
222
2.1.1.
CLC 1969
222
2.1.2.
CLC 1992
223
2.1.3.
International Convention on Civil Liability for Bunker Oil Pollution Damage 2001
224
2.2.
National legislation on compulsory insurance for ship-source oil pollution damage
224
2.2.1.
Marine Environmental Protection Law
224
2.2.2.
Regulations on prevention of pollution
224
2.2.3.
Measures for the implementation of civil liability insurance for vessel-induced oil pollution damage of the PRC
226
3.
The market status of civil liability insurance for oil pollution damage in China
229
4.
Latest development of civil liability insurance for coastal ship-source oil pollution damage: the demonstration project of blanket insurance
231
4.1.
Fundamental contents of the demonstration project of blanket insurance
231
4.2.
Purpose of the demonstration project of blanket insurance
232
4.3.
Problems existing in the demonstration project of blanket insurance
233
5.
Conclusion
234
12.
Cargo insurance documents in letters of credit / Jingbo Zhang
235
1.
Introductory background
235
1.1.
Cargo insurance in international trade
235
1.2.
Letters of credit and insurance documents
236
1.3.
Legal framework for letters of credit
236
1.4.
Influence from the law of marine insurance
238
1.5.
Objectives of this chapter
238
2.
Form of insurance document
239
2.1.
Express requirements in LC should prevail
240
2.2.
When LC is silent as to the forms of insurance documents
241
2.3.
Effect of MIA 1906 on LC
243
2.4.
Prohibited forms
245
3.
Risk coverage
245
3.1.
'Usual' or 'customary' risks
246
3.2.
All risks
246
3.3.
Exclusions
248
4.
Goods covered
249
5.
Period of cover
249
5.1.
Dates of cover
249
5.2.
Entire transit cover
250
6.
Currency and amount of insurance
251
6.1.
Insurance currency
251
6.2.
Insurance amount
251
6.3.
Excess and franchise
252
7.
Assured and assignment
253
13.
Insurer's limitation of liability for maritime claims / Dingjing Huang
255
1.
Introduction
255
2.
LLMC 1976 and LLMC 1996
256
3.
English law position
258
3.1.
When will a third party be able to sue the liability insurer?
258
3.2.
To what extent may an insurer limit its liability?
259
3.3.
Third Parties (Rights against Insurers) Act 2010 (Third Parties Act 2010)
264
4.
Chinese law position
266
4.1.
Under what circumstances would the issue of insurer's limitation of liability arise?
266
4.2.
To what extent may an insurer limit its liability?
267
5.
Other limitation rules
269
5.1.
International Convention on Civil Liability for Oil Pollution Damage (CLC 1969) and its 1992 Protocol (CLC 1992)
269
5.2.
Hazardous and Noxious Substances Convention 2010 (HNS Convention 2010)
270
5.3.
International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (Bunker Convention 2001)
270
5.4.
Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea (Athens Convention 2002)
270
5.5.
LLMC 1976 and other limitation rules
271
6.
Conclusion
272
14.
Insurance contract law reform in England / Dr Meixian Song
273
1.
Introduction
273
2.
History of English insurance law
274
3.
The proposals of reforms on insurance contract law
276
4.
Pre-contract non-disclosure/misrepresentation/warranties
277
4.1.
The insured's non-disclosure and misrepresentation
277
4.2.
Breach of warranties
278
4.3.
The role of intermediaries
279
4.4.
Consumer Insurance (Disclosure and Representations) Act 2012
280
5.
The insured's post-contractual duties of good faith
281
6.
Damages for the insurer's late payment
282
7.
Formal requirement of policy
283
8.
Insurable interest
284
9.
Conclusion
287
Translators' notes
289
Appendix I
Insurance Act 2009
291
Appendix II
CMC Provisions
358
Index
367