Selected Papers of the Jurist (法学家) Volume 7
Edited by Jichun Shi
Chapter 4: Interpretation of constitutionality on compulsory commercial insurance systems
The protection of a compulsory commercial insurance system falls under the scope of constitutional property rights and the principle of freedom of contract. It involves restrictions on fundamental rights through its adoption of elements of compulsion with accompanying penalty measures. In featuring risk sharing as its main target, a system of compulsory commercial insurance can balance the public interest, which is in accordance with the basic relevant policies provided in the Constitution. When examined formally, it is reasonable to retain the right of setting compulsory commercial insurance within legislative and administrative regulations, so that full consideration can be given to the important nationwide public interest. On further examination and in accordance with the principle of proportionality, it is crucial to acknowledge that compulsory commercial insurance can overcome the problem of ‘insurance market failure’ while causing minimum restrictions to the fundamental rights of citizens. Therefore, a system of compulsory commercial insurance is constitutional, while the logical chain behind is acknowledged as very fragile. This makes it necessary to impose control of constitutionality.
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