现行保险法第十三条虽对保险合同的成立和生效问题进行了修改,但因规定比较粗疏,保险实务操作又不规范,实践中因保险合同的成立与生效引发的纠纷仍旧不断。笔者认为保险合同成立应以当事人的签字或盖章为准;在当事人签字或盖章之前当事人一方已经履行主要义务,对方接受的,保险合同成立。保险合同的生效除具备订立保险合同的当事人应具有相应的民事行为能力、订立合同当事人意思表示真实且一致、保险合同的内容不违反法律或者社会公共利益外,还应具备保险风险与保险利益两个要件。保险合同生效不等于保险责任的开始,保险责任应按照法律的规定或是当事人的约定。保险合同生效但是保险责任尚未开始的,保险人不承担保险责任,但可借鉴外国的通融赔付做法。 Although the thirteenth article of the Insurance Law amended the establishment and entry into force of the insurance contract, due to the relatively loose rules, the non-standard insurance practice, the disputes arising from the establishment and entry into force of the insurance contract in practice still continue. The author believes that the establishment of an insurance contract should be subject to the signature or seal of the parties shall prevail; one of the parties before the parties signed or sealed the main obligations have been fulfilled, the other accepted, the insurance contract was established. The entry into force of the insurance contract In addition to the parties have entered into the insurance contract should have the corresponding civil capacity, the parties to the contract expressed the true and consistent meaning of the contents of the insurance contract does not violate the law or the public interest, but also have the insurance risk and insurance benefits two A requirement. The entry into force of the insurance contract does not mean the beginning of the insurance liability. The insurance liability shall be in accordance with the provisions of the law or the parties’ agreement. Although the insurance contract takes effect but the insurance liability has not yet started, the insurer does not assume the insurance liability, but it can learn from the foreign countries to make the payment and settlement.