投資型保險商品之法律分析與業務展望

Abstract

投資型保險為目前保險市場上主流商品之一，由具有一定依存關係之保險契約與投資信託契約聯立而成之混合契約，投資信託契約由要保人自行決定投資標的或委由保險人代為運用，學說及實務均認其本質為人壽保險，但是多被用以規避所得稅及遺產稅，全無風險分散之機能，故亦有認係有價證券投資契約。 投資型保險商品則可區分為租稅規劃型及費用節約型。租稅規劃型對於要保人及受益人之誘因在於可規避所得稅及遺產稅，可能被評價為無締結保險契約真意之民事法上通謀虛偽意思表示，在租稅法上會導致要保人、受益人及保險人補稅及處罰之風險；費用節約型則可節省要保人及保險人之金融交易成本，但要保人將承擔投資風險，保險人則有搭售、聯合及關係人交易之問題。 投資型保險示範條款宜定性為行政指導，若經事實上一般地採用為同類型契約時即為定型化契約，在未來的發展上宜朝向費用節約型規劃，發展全權委託投資業務及共同基金，扶植證券投資信託及顧問關係企業或策略聯盟，並落實保險本業核保程序，俾投資型保險真正發揮保障及投資之功能。

Investment-linked insurance is one of the mainstream products currently on the insurance market. It is combined interdependently by insurance contract and securities investment trust contract. Targets of securities investment trust contract are decided by the proposer or the insurer on behalf of the proposer. Though the essence of investment-linked insurance is considered as life insurance by scholars and court, it is mostly utilized to evade income tax and estate tax and totally without the function of spreading or diversion of risk. Thus it is occasionally thought as securities investment contract instead of life insurance contract. Investment-linked insurance can be divided into tax-planning type and cost-saving type. The lure of tax-planning type for the proposer and the beneficiary is that tax-planning type could be used to evade income tax and estate tax. The lure of evading tax actually could be evaluated as fictitious expressions in collusion of civil law without any intent to sign an insurance contract. The proposer and the beneficiary may possibly face the risk of duty to repay and penalty. Cost-saving type could save the fee or cost of financial business transactions of the proposer and the insurer. But the proposer will be responsible for the risk of investing. The insurer may have problems of tie-in sale, concerted action and interested parties transaction. The standard provisions of investment-linked insurance are better being considered as adminstrative guidance. It will become articles for standard contracts when it is actually and generally adopted by contracts of same type. Investment-linked insurance should be designed toward cost-saving type. The insurer should develop the business of discretionary investment and securities investment trust fund, and help grow affiliated securities investment trust enterprise and consulting enterprise, or cooperate with other securities investment enterprises in strategic alliance. The insurer also must implement the procedures of policy underwriting. Then the investment-linked insurance could really fulfill its capabilities of protection and investment.