海上保險保證：完善抑或摒棄

Warranty in Marine Insurance: Improving or Scrapping

我國海上保險法關於保證的簡單規定移植於英國法，英國保險法新近修改了保證制度，我國修改《海商法》時面臨完善或摒棄保證制度的問題。參照2015年英國《保險法》完善我國海上保險保證制度，是目前學界的主流觀點。但是，完善論存在著根本缺陷，保證制度在我國不僅缺乏相應的理論基礎，還將擴大保險法律制度的不統一，導致保險合同條款體系紊亂，在司法實踐中也難以準確適用。我國應摒棄海上保險保證，以現有的風險變更制度替代其功能，利用合同條款發揮相應作用。

The simple rule on warranty in Chinese marine insurance law was transplanted from UK. However, the warranty regime in UK has been modified by Insurance Act 2015. As far as the revision of Chinese Maritime Code is concerned, it is necessary to determine whether or not the current warranty rule should be improved. Scholars hold that the act is worth using for reference to improve the code. However, the point of improving is fundamentally flawed. The regime couldn't survive and thrive in China for the lack of theoretical basis and judicial activism, and it also will lead to the disunity of insurance legal system, and the disorder of insurance contract terms system. Therefore, the rule of warranty should be eradicated from Chinese marine insurance law as its function could be assumed by legal system of alteration of risk and express terms of contract.