從「全有全無」到「或多或少」——以德國保險契約法上約定行為義務法制之改革為中心

From 'all-or-nothing' to 'more-or-less': Reform of Regulation on Contractual Obligations in German Insurance Contract Act

In insurance relation, it is a commam senerio that the insurer apply special provision to impose the duty of disclosure, collaboration and loss prevention obligations on the insured. It is reasonable to impose these obligations based on the principle of equivalence and utmost good faith on the insured. Conversely, the consequence of violating the provision by losing all the coverage might be too harsh for the policyholder. In other words, the insurer would be completely exempt or has the right to rescind the contract. Apart from filing the lawsuit to claim a term void, the most proficient way is to offer the insured a minimum protection, by establishing a compulsory regulation on breaching effect and the conduct requirements in the insurance law. The old German insurance law had banned the insurer to rescind the contract, however, the old regulation still consider all or nothing as an essence principle; Briefly, the insured will either get the full compensation or nothing. In 2008, the new insurance law amended all or nothing principle and adopted the more or less principle for the sake of the consumer protection. Similar problems in Taiwan will be a different story, due to the special provisions (Taiwan insurance law article 66 to 69), if the insured violate the provision, the insurer can rescind the contract and negated the obligation. Need less to say, the Taiwanese policyholder is in a comparatively adverse condition. This essay will focuses on the German amendment law and the practical experiences to provide the overall perspective for future reference.