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논문 기본 정보

자료유형
학술저널
저자정보
저널정보
원광대학교 법학연구소 원광법학 원광법학 제35권 제3호
발행연도
2019.1
수록면
321 - 339 (19page)

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초록· 키워드

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In the process of analyzing the case of whether the insurance company shall have the obligation to pay the insurance benefits for the insured’s death resulted from his or her drunk driving, the following sequence is followed. Firstly, carry out the academic theory promotion. Secondly, connect the process of academic theory promotion and judicial promotion. Then, make the judicial function-oriented big data observation. Finally, choose the litigation strategy and judicial judgment path. Judging from the connection degree of proof, evidence and fact, Article 45 of the Insurance Law of the People’s Republic of China (hereinafter referred to as the “Insurance Law”) only needs proving that the insured deliberately commits a crime, and there is no need to procedurally certify whether the insurer’s obligation to expressly explain those clauses that exempt the insurer from liability in the insurance contract is performed or not. Article 45 of the Insurance Law stipulates that where the insured deliberately commits crimes or resists the criminal compulsory measures adopted in accordance with applicable laws that cause him/her injured, disabled or dead, the insured shall not be liable for paying the insurance benefits. If the premium has been paid for more than two full years, the insurer shall return the cash value of the insurance policy as agreed in the contract. The core fact of the case “the insured dies due to drunk driving” is applied to this article, which can be intercepted as if the insured’s death results from him or her intentionally committing a crime, the insurer shall have no obligation to pay the insurance benefits. The death of the insured resulting from him or her intentionally committing a crime includes two possibilities. Firstly, the insured dies before the criminal judgment is made on the insured’s intentional crime. Secondly, the insured dies after the criminal judgment is made on the insured’s intentional crime. If the standard of proof of criminal crime is strictly followed, in the case of “the insured dies before the criminal judgment is made on the insured’s intentional crime”, it will fall into the following paradox: the insured cannot be prosecuted after his/her death, and the insured’s intentional crime cannot be confirmed without a lawsuit. The standard of proof of the “the insured’s intentional crime” should accord with the characteristic of the proof standard of civil ruling—— high probability. There exists a contradiction between the interpretation of the criminal proof standard in Article 22 of the Interpretation of the Supreme People’s Court on Several Issues concerning the Application of the Insurance Law of the People’s Republic of China (III) and the civil proof standard implied in Article 45 of the Insurance Law. Under the premise of the lack of effective legal documents of criminal investigation organs, prosecutorial organs and judicial organs (hereafter referred to as the “three organs”), the understanding and scope of other conclusive opinions of the three organs has become the key to resolving the aforementioned contradiction. From the perspective of semantics, the content connected by the word “or” in judicial interpretation is juxtaposed. Other conclusive opinion documents of the three organs must be juxtaposed with the effective legal documents of the three organs. Other conclusive opinions in practice include judicial expertise documents affirmed by the three organs and traffic accident responsibility confirmations (judicial expertise documents themselves are not conclusive opinions because the three organs are not the subject of appraisal institution. Therefore, they belong to other conclusive opinions only when the judicial expertise documents are adopted and affirmed by the three organs.) Understanding the basic functions of big data in legal research requires resorting to psychology, behavioral psychology and social psychology. This is true for both the analysis of the main elements that produce big data and that of the bodies that use big data because the usefulness of big data to the methodology of jurisprudence is actually that for legal researchers and legal practitioners. In the process of giving concluding opinions on cases, the application sequence and value category of judicial big data should be scientifically and rationally configured, and combined with the psychological motivation of big data users to observe. The application of judicial big data should follow the following logical sequence. First, the acquisition and use of judicial big data should be based on the fact that concluding opinions have been made on the case and various possible solutions of the case have been prejudged. Second, judicial big data has limited error correction function. Finally, judicial big data has certain complementary functions. The above-mentioned process is only the primary function of judicial big data. The deeper function is to conduct further case tracking on the judgments’ and case facts’ differences between the case prejudging solution and judicial big data. The process also includes an in-depth comparison and study of facts, evidence and judgments between the cases to further clarify, confirm, deny and choose the case prejudging solution. Judicial big data is likely a high-definition camera. The judgment results of similar cases are clear at a glance. Under the premise that the parties and legal professionals are in the radiation range of this high-definition camera, the judicial function-oriented decision at least affects the selection result of the case-solving solution. The reasons are as follows: (1) The convergence psychology of judges and lawyers often leads them to choose the case handling solutions that account for a large proportion in judicial big data. (2) The parties are more likely to question or reject the judgment that accounts for a small proportion in judicial big data. If the judgment that accounts for a small proportion is based on, the appeal rate will increase. Combined with judicial big data, it is concluded that the case can be judged in accordance with Article 45 of the Insurance Law.

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