保險契約為民事契約,其契約生效至終止與一般民事契約相同,但保險契約獨有 停效與復效之制度。保險人是否應寄發催告及寄發形式與保險契約是否停效有重大關 係,學說及實務見解亦未盡相同。96 年保險法修法後,保險法第 116 條對復效的規定 出現重大的改變,就此改變足可見主管機關重視消費者之權益,惟對保險法第 116 條 第 1 項的“除契約另有約定外”的定義未詳加規範,以至爭議不斷。復保險人若未就 人壽保險費之繳交進行催告,其將生若何之法律效果?本論文首先就保險契約之特 性、原則及生效及成立要件等基本概念加以探討,其次介紹保險契約停效及復效之原 因及法律效果等。再據保險契約之特性對我國現行催告制度加以探討。又本文主要係 以整理國內外學說及實務見解,藉以瞭解相關問題之所在,並於文末提出相關節論與 建議,以供未來修法之參酌。
Insurance agreement is pertain to civil contract. Its agreement is approximately the same as general civil agreement from its effectiveness to termination. However, the insurance agreement has the unique system of effectiveness suspension and reinstatement. There is a significant relationship between whether the insurant should send the claim, the sending form and whether the insurance agreement will be suspended from its effectiveness; while the theoretical doctrines and practical perspectives are not consistently as the same. After the amendment of Insurance Act in 2007, the Article 116 of Insurance Act has appeared a significant change on the regulation of effectiveness reinstatement. From the aspect of this change, it can be observed that the competent authority is emphasized on the consumer rights. However, the Item 1 of Article 116 in the Insurance Act does not regulate in detail about the definition of “unless otherwise appointed in the contract”, which has resulted in a continuous argument. Furthermore, what will be the legal effectiveness generated if the insurant did not execute the claim for the payment of life insurance? This thesis has invested on the fundamental concepts about the characteristics, principle, effectiveness, and establishment essentials of the insurance agreement at first. And, the second aspect is to introduce the reasons and legal effects of the insurance agreement pause and recovery. Furthermore, it will be investigated on the current domestic claim system according to the characteristics of insurance agreement. In addition, this article is based on the sorting of domestic and foreign theoretical doctrine and practical perspectives in order to realize the crux of related issues. And, it has proposed the relevant conclusions and suggestions in the end of this article for the reference of future studies and consideration of Law amendment.