| 摘要註: |
2011年我國頒布≪金融消費者保護法≫除了將保險業納入其所定義的金融服務業範圍中,並於第9條第1項規定:「金融服務業與金融消費者訂立提供金融商品或服務之契約前,應充分瞭解金融消費者之相關資料,以確保該商品或服務對金融消費者之適合度。」故為符合適合性原則之要求,保險業者於提供保險商品或服務之契約前,應就個別保險消費者風險類型及需求分析,以適當的方式推介銷售及建議適合之保險商品並說明其內容。 保險契約為最大誠信契約,保險契約之雙方當事人均應負有誠實告知之義務,以調整保險契約之資訊不對稱的情況。適合性原則作為保險商品銷售時之原理原則,其實踐則有賴保險業者對保險消費者提供適切合適的諮詢建議,透過法律規範作為保險商品推介銷售時之先契約義務要求,具體展現諮詢建議於適合性原則之履行。故外國立法已著手開始規定保險契約之諮詢建議,其中德國≪保險契約法≫第6條規定保險人對要保人諮詢建議義務,並以此為保險商品推介銷售時保險人所應負擔之義務。, 然而我國現行≪保險法≫僅規定保險消費者於投保時負有誠實告知義務,並未就保險業者的諮詢建議義務有所規範,導致五花八門的保險商品中,因保險消費者對於保險專業知識的不足及雙方資訊不對等的情況,產生實務上保險消費者往往於發生保險事故時,才發現所購買之商品不符合需求。類似爭議案件層出不窮,為調整此類資訊不對等情況,故保險業者於保險商品推介銷售時之先契約行為的諮詢建議義務為本文討論之主軸。本論文以「適合性原則」及「諮詢建議義務」為主幹,從適合性原則的演進談起,並就民事法中之契約責任著手,探討保險人諮詢建議義務,以先契約階段保險業者與保險消費者之特別信賴關係,矯正資訊不對等之狀況,提出對於目前法規範之檢討,輔以英德兩國立法例及實務運作,作為未來修法之建議。 The Republic of China has promulgated the “Financial Consumers Protection Act” in 2011 thereby incorporating the insurance industry as an integral part of financial services for protection. According to Article 9 of this law, “before financial service industry and consumers entering into an agreement on the supply of financial products or services, the industry shall fully understand the background information of the consumers to ensure the appropriateness of the product or services to the financial consumers”. For compatibility with the principle of suitability, the insurers shall conduct an analysis on the risk type and needs of individual insurance consumers before entering into an agreement on insurance products or services thereby recommending the most suitable insurance products to the consumers through the appropriate means. An insurance contract is an agreement in good faith in its entirety. The contracting parties of an insurance agreement are obliged to inform each other of the true accounts in good faith so as to reconcile the asymmetry in access to information. The principle of suitability as the fundamental principle for selling insurance products rested with the advisory suggestion suitable for the consumers of the insurers in practice, and manifested in the performance of the advisory suggestions. In foreign countries, legislation on the advisory suggestion of insurance contracts has commenced of which Article 6 of the “Insurance Contract Act 2008” of Germany specified that insurers are obliged to provide advisory suggestions to the insured and this shall be the obligation of the insurers at the time of introducing the insurance products to the insured. In the Republic of China, the “Insurance Act”, which is currently in effect, just governs the insurers in their obligation to inform the insurance consumers in good faith at the time of underwriting but not the obligation by the insurers to give advisory suggestions. The result is that the insurance consumers always discovered that the insurance they took was not conforming to their needs at the time of an insurance claim due to the lack of sufficient knowledge of insurance and insurance products by the insurance consumers and the great variety of insurance products. Thus, disputes in different forms emerged. For improving the asymmetric access to information, insurers shall provide advisory suggestions to the insurance consumers as an obligation before selling insurance products and entering into an insurance agreement. This is the theme of this paper. In this paper, “the principle of suitability” and “the obligation of advisory suggestion” will be addressed. Discussions will start with the evolution of the principle of suitability from the perspective of contract obligation in the Civil Code to explore the obligation of the insurers in advisory suggestion. The relationship of trust between the insurers and the insurance consumers in at the preliminary agreement stage will be explored with an attempt to correct the asymmetry of information. The findings will be proposed as reference for reviewing current legislation for amendment on this issue with the support of the case studies and practices in the legal systems of the UK and Germany. |