On Judicial Correction of Alienation of “Otherwise Agreed” Clause in Insurance Contracts

In practice, the alienation of the “otherwise agreed” clause in insurance contracts not only damages the legitimate rights and interests of contract parties but also endangers the security and stability of the financial market. There are some problems in the process of regulating this problem in the current legislation, such as neglecting the requirements of protecting legal interests, incomplete invalidity rules of contract clause, and unclear judgment rules after invalidation. Guided by the protection of basic legal interests in the Insurance Law , to construct a corresponding rule system according to the nature of the insurer’s insurance behavior, which has dual legal nature of financial business behavior and aleatory contract behavior is the basis for correcting the alienation problem. It is necessary to clarify the criteria for identifying alienated “otherwise agreed” clauses in insurance contracts, improve the invalidity rules of the alienated “otherwise agreed” clauses in insurance contracts, and distinguish the application of judgment rules based on the invalid situation of contract terms after being ruled invalid.