明確說明義務的困境和出路－－基於中國商業車險的觀察

Dilemma and Solution of Duties Manifestly Stipulated: Based on the Observation of Chinese Commercial Auto Insurance

明確說明義務規則發揮的效用毀譽參半，柔性立法給予司法實踐充分的裁量余地。形式論、實質論和區分論在特定歷史時期均能實現一定的公共政策。信息不對稱發生時空轉換，法官裁處車險糾紛時，以實體規制為核心，明確說明義務規則或者淪為錦上添花的裝飾品，或者化身為阻扰法官下判的路障。結合中國車險市場發展實際，解釋論層面上，明確說明義務規則應回歸形式論，並輔之以實體規制；展望未來，明確說明義務規則應由強制型轉變為倡導型。

The effectiveness produced by the regulations of duties manifestly stipulated has to be as much praised as blamed. Flexibility legalization has endowed justice sufficient discretionary power. The standpoint of Formalism. Essence and Distinction has realized their respective public policy. The judge has accustomed to utilize entity compulsion in the course of auto insurance dispute on account of the transformation about information asymmetry. The regulations of duties manifestly stipulated have translated decoration to add brilliance to juridical present splendor or roadblock to pullback judicial judgement. To respond the reality of Chinese auto insurance market development. the regulations of duties manifestly stipulated should obtain regression of Formalism concerning legal interpretation in the meantime adopting supplementary of entity compulsion as well as translate from compulsion to advocacy specification in the future.