Theoretically, there are two ways to produce the beneficiary of insurance: designation and statutory. Whether the insured or the insured has the right to change after designating the beneficiary, China adopts directism. The applicant or the insured may change the beneficiary and notify the insurer in writing, and the change of beneficiary must obtain the consent of the insured. On the basis of discussing the general rules of the establishment and change of insurance beneficiary right, this paper analyzes five special problems existing in the establishment and change of insurance beneficiary in insurance practice, and puts forward corresponding opinions and suggestions.

[Keywords:] insurance beneficial right; Settings and changes; General rules; special problem

I. General rules for the establishment and alteration of the beneficial right of insurance

(A) the emergence of insurance beneficial rights

The beneficial right of insurance arises from the beneficiary. It can be said that the generation of beneficiary right is also the generation of beneficiary. Theoretical circles believe that there are two ways to produce insurance beneficiaries: one is designation, and the other is statutory.

The so-called designation refers to the beneficiary's explicit designation of the insured or the insured in the insurance contract. Article 6 1 and Article 62 of China's 5 Insurance Law 6 stipulate the designation of beneficiaries and the beneficiary order and share of designated beneficiaries. The designation of the beneficiary belongs to the unilateral civil legal act of the insured or the insured, and the subject exercising the right of designation only needs to inform the beneficiary at the time of designation without obtaining the consent of the beneficiary. However, in order to protect the interests of the insured, the insured must obtain the consent of the insured when designating the beneficiary. Although both the insured and the insured have the right to designate the beneficiary, they have different rights to designate the beneficiary because of their different status in the life insurance contract. As stipulated in Article 6 1 of China's 5 Insurance Law 6. If the applicant concludes an insurance contract and designates a third party including the applicant himself as the beneficiary, it must obtain the consent of the insured or his guardian in advance. Without prior consent, the written approval of the insured or his guardian for the designated beneficiary shall be obtained after the conclusion of the insurance contract, otherwise the designation shall be invalid. The insured may agree or change the beneficiary designated by the insured, or even change the beneficiary designated by the insured. The beneficiary designated by the insured does not need the consent of the insured. From this, it can be seen that the final decision of the beneficiary in the life insurance contract belongs to the insured. The beneficiary is determined by the insured, who will fully consider whether there is any possibility of danger to himself. If the insured decides to designate the beneficiary independently, the insured can ignore his concern for the life of the insured for his own benefit. However, as a party to the insurance contract, the applicant has the obligation to pay the insurance premium, so it should be given the right to designate beneficiaries with restrictions. Beneficiaries have no obligation to pay insurance premiums and have no ability to manage insurance benefits, which determines that their behavioral capacity or property status is meaningless to become beneficiaries. Therefore, the state generally has no qualification restrictions on beneficiaries. Any legal person or natural person can be the beneficiary, and one person can enjoy the right to benefit alone, or many people can enjoy the right to benefit together. Whether you can become a beneficiary or how much share of the beneficial right you enjoy depends entirely on the intention of the applicant or the insured.

The so-called legal means that after the death of the insured, when there is no legal beneficiary for various legal reasons, the legal heir of the insured is the beneficiary and receives the insurance money. Article 64 of China's Insurance Law 5 stipulates: "After the death of the insured, in any of the following circumstances, the insurance money shall be regarded as the insured's heritage, and the insurer shall perform the obligation to pay the insurance money to the insured's heirs: (1) No beneficiary is specified; (2) The beneficiary dies before the insured, and there are no other beneficiaries; (3) The beneficiary loses or waives the right to benefit according to law, and there are no other beneficiaries. " Most scholars believe that article 64 can be understood as the legal heir of the insured as the legal beneficiary. In the absence of a designated beneficiary, the practice of paying the claim for insurance money as an inheritance to the heirs of the insured can be seen in Britain and the United States, but it is rare in civil law countries. [1] The author thinks that Article 64 should be understood as follows: If the insured dies and the beneficiary of the insurance contract cannot be determined, the insurance money will be inherited by the heir as the insured's estate, and then the insurance money will be distributed according to the relevant provisions of the inheritance law. After receiving the insurance money, the heir of the insured shall repay the debts of the insured before his death within the limit. But the beneficiary of the insurance contract has no such obligation after receiving the insurance money. If the heir of the insured is recognized as the natural beneficiary, it will cause disputes over the distribution of the estate, so the two cannot be simply equated. Therefore, the concept of "legal beneficiary" should be introduced into China's 5 Insurance Law 6, which clearly stipulates that the legal heir determined in 5 Inheritance Law 6 is the legal beneficiary and enjoys the claim for insurance money.

(2) Change of beneficial right

There are mainly two kinds of legislation on whether the insured or the insured has the right to change the beneficiary after designating the beneficiary. The first is conservatism, that is, when the applicant or the insured designates the beneficiary, he must also declare that he reserves his right to dispose of it. Otherwise, once the beneficiary is designated, the applicant or the insured has no right to change the beneficiary. The United States, France, Germany and so on all adopt such legislation. The second is directism, that is, after the insured or the insured designates the beneficiary, he can directly change the designated beneficiary through the contract or will, except explicitly giving up the right to dispose of it. [2] Article11of Insurance Law 6 of Taiwan Province Province stipulates that "after the beneficiary is designated, the insured can still dispose of his insurance rights and interests through contract or will, except that he waives the right of disposition." Switzerland, Japan and other countries also adopt this model. [3] China also adopts directionality. Article 63 of China's 5 Insurance Law 6 stipulates: "The insured or the applicant may change the beneficiary and notify the insurer in writing. After receiving the written notice of change of beneficiary, the insurer shall endorse the insurance policy. The insured must obtain the consent of the insured when changing the beneficiary. "

1. According to the policy change.

Most change beneficiaries will adopt the change method stipulated by the policy. In insurance practice, the policy generally contains the beneficiary change clause, which stipulates the beneficiary change. In principle, the change of beneficiary should comply with the provisions of the policy, but when the change does not comply with the provisions of the policy, what is its legal effect? In the United States, the insured must change the legal effect of the beneficiary by the change method stipulated in the policy, but the "substantive agreement rule" is an exception. According to the judgment of the American court, as long as there is evidence that the insured has submitted a written application to the insurer to change the beneficiary according to the beneficiary change procedure stipulated in the policy, and exhausted all possibilities, he still can't submit the policy for endorsement, and the policy clearly stipulates that the beneficiary must be changed before it can take effect, then the court will apply the "substantive consistency rule" to confirm the validity of the change of beneficiary. [4] The "substantial consistency rule" can be applied to the case that the insurance policy is lost, damaged, stolen or detained by others. The author thinks that the change of beneficiary should conform to the policy, but the method of denying all other changes of beneficiary is also imperfect. We should learn from the "substantive consistency rule" adopted by American courts in judging the effectiveness of changing beneficiaries in other ways.

2. Contract change.

Contract modification is a way to transfer the benefits of the insurance policy. As a party to the insurance contract, the applicant can dispose of the benefits generated by the insurance policy through the contract. After the insured or the applicant designates the beneficiary, if the benefits generated in the insurance contract belong to the transferee according to the contract, it has the same effect as changing the beneficiary. There are mainly the following situations: (1) The insured divorces the beneficiary and then divorces.