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

• 발행기관: 원광대학교 법학연구소
• 저자명: Hongyan Pan
• 간행물 정보: 『원광법학』제35권 제3호, 321~339쪽, 전체 19쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.09.30

영문 초록

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.)

목차

Abstract

Ⅰ. JUDICIAL BIG DATA ANALYSIS OF THIS CASE

Ⅱ. ANALYSIS PROCEDURES AND STAGES OF THE CASE

Ⅲ. EXTRACTION OF THE CORE FACTS OF THIS CASE AND THE PREFERRED SCENARIO

Reference

키워드

judicial function orientation highly probable insured intentional crime