Insurance Law between Commercial Law and Consumer Law: Can the United States Inspire China in Insurance Misrepresentation

Abstract

The theoretical argument behind the “pro-insured” or “pro-insurer” debate contains elements of contract law, business law, and consumer law. This article reexamins the insurance misrepresentation rule under the RLLI, ands compares it to insurance law in China. This comparison demonstrates the struggle between preference for insured or insurer. We have reconsidered the subtopics of misrepresentation, including innocent misrepresentation, materiality, reliance, remedy, contribute-to-the-loss approach and others, from not only the perspective on either party of insurance contract, but also the overall efficiency of insurance market and society. For the structure and remedy of insurance misrepresentation, we recommend a reasonable rule, which allows rescission for any kinds of misrepresentation, but this is not equivalent to a rule that insurer can rescind contract for any mistake of policyholder. Rather than presetting remedies for misrepresentations, this rule asks a court to decide the proper remedy according to any important circumstances of the case, including severity of misrepresentation, accountability of policyholder, factual causation and so on.