《保险研究》20201107-《对保证保险合同性质及相关法律问题的再探讨》（李利、许崇苗）

［摘   要］我国2009年修订后的《保险法》明确规定财产保险业务包括保证保险,但并未对保证保险的内涵进行界定。理论界和实务界近年来倾向性的观点为保证保险合同的性质为保险,但并未完全形成共识。中国银保监会于近期下发了《信用保险和保证保险业务监管办法》。借此契机,基于保险法原理,本文对保证保险合同的法律性质进行了深入剖析,提出保证保险在我国现行《保险法》上具有法定地位,符合我国《保险法》对保险的定义和保险合同构成要件；保证保险合同具有独立性,被保险人享有独立请求权；保证保险为法定财产保险重要险种之一,与保证合同有本质区别。对于实践中不尽规范的保证保险业务,应尊重当事人的意思自治,按照实质重于形式的原则,依据合同的内容,确定民事法律行为和民事法律关系之本质,并据此确定应适用的法律。最后,剖析了合作协议的法律效力以及与保证保险合同的关系等理论问题,以期对保证保险业务开展和纠纷解决提供指导。

［关键词］保险合同；保证保险；法律性质；独立请求权

［作者简介］李利,北京师范大学副教授,研究方向:行政法和保险法；许崇苗,法学博士,中国人寿保险股份有限公司合规负责人、法律责任人兼法律与合规部总经理。

Further Exploration on the Nature of Guarantee Insurance Contract and Relevant Legal Issues

LI Li,XU Chong-miao

Abstract：The “Insurance Law” which was revised in 2009 clearly stipulates that property insurance includes guarantee insurance,but does not define the connotation of guarantee insurance. Both theoretical society and the insurance industry tend to agree that guarantee insurance is a type of insurance in nature,but complete consensus hasn′t been formed. The China Banking and Insurance Regulatory Commission recently issued “The Measures for the Regulation of Credit Insurance and Guarantee Insurance”. Taking this opportunity,and based on the principles of the insurance law,this article made an in-depth analysis of the legal nature of the guarantee insurance contract,and proposed that the guarantee insurance had a legal status in the current “Insurance Law” ,which was in line with the definition of insurance in “Insurance Law” and the requirements of the insurance contract;the guarantee insurance contract was independent,and the insured enjoyed the right of independent claim;the guarantee insurance was one of the important types of insurance for statutory property insurance,which was essentially different from the guarantee contract. Regarding the non-standard practices of guarantee insurance practices,the parties′ autonomy should be respected,and the essence of civil law acts and civil legal relations should be determined according to the content of the contract in accordance with the principle that substance is more important than form,and the applicable law should be determined accordingly. Finally,this article analyzed the theoretical issues of the legal effect of the cooperation agreement and the relationship with the guarantee insurance contract,in order to provide guidance for the development of the guarantee insurance business and dispute resolution.

Key words：insurance contract;guarantee insurance;legal nature;the right of independent claim