试论车贷保证保险的相关法律问题

发布时间：2018-07-11 15:26

本文选题：车贷保证保险 + 保险　；参考：《中国海洋大学》2012年硕士论文

【摘要】：机动车辆消费贷款保证保险(以下简称车贷保证保险)于1997年正式进入我国。当时我国汽车产业正处于快速发展的起步阶段,为了刺激个人汽车消费,促进国内经济发展,各大保险公司在政府的倡导下大力开展车贷保证保险业务,并有效的刺激了个人购车消费和国内经济增长。但由于银行和保险公司在办理业务中相互推诿怠于履行对借款人的审查义务,导致频繁出现借款人逾期还款的情况并且乘不断蔓延之势。根据中国人民银行相关数据显示,汽车消费贷款的呆坏账已高达千亿元人民币,数额之巨大令人震惊。随着车贷逾期的一路走高,银行追缴车贷欠款的集团诉讼也随之爆发。由于车贷诉讼在当时属于新型诉讼,各地法院在审理车贷纠纷案件中,遇到了前所未有的争议,并出现了同案不同判的情况,甚至出现同一法院的法官作出不同判决的情况。经研究,主要有三个争议焦点问题,即车贷保证保险的性质是保险还是担保、应适用《保险法》还是《担保法》、保险人如何行使代位追偿权。这三个问题也引起了学术界的广泛关注,并出现了百家争鸣众说纷纭的局面。同时为了消除车贷诉讼乱象,探讨车贷纠纷审理思路,全国各地法院都在讨论规范车贷保证保险纠纷案件的审理方案,并出台了观点各异的审理意见,形成了各省市各自为政的局面。最高人民法院为了统一审理意见,曾经专门调研并出台了《关于审理保险纠纷案件若干问题的解释(征求意见稿)》。该征求意见稿规定：“人民法院审理保证保险合同纠纷确定当事人的权利义务时,适用保险法；保险法没有规定的,适用担保法”,问题似乎有所缓和。但是,此意见毕竟是征求意见稿,而且仍存在不明确的方面,不能完全解决司法实践上的争议。鉴于我国至今没有统一有效的法律法规对车贷保证保险进行全面规范,笔者尝试对车贷保证保险司法实践中产生争议的三个焦点问题进行分析和探讨,提出自己浅薄的建议,希望对我国车贷保证保险相关法律法规的健全完备有所帮助,不当之处请老师给予批评指正。第一部分,车贷保证保险的法律性质。车贷保证保险的性质是保证还是保险,在理论和实践中存在较大争议。笔者在介绍学者观点的基础上,坚持认为车贷保证保险应被界定为一种特殊的财产保险制度。第二部分,车贷保证保险应适用《保险法》和,《合同法》。车贷保证保险具有担保和保险的双重属性,在司法实践中,适用《担保法》还是《保险法》成为车贷保证保险纠纷的焦点问题。笔者在第一部分分析车贷保证保险法律性质的基础上,结合司法实践的实际情况,认为车贷保证保险纠纷应该严格适用《保险法》和《合同法》等相关民事法规。第三部分,代位追偿权是保险人的自有权利。保险人在履行保险责任后其代位追偿权应承接银行的权利,但是如何实现存在较多的问题,如传统的代位追偿权与车贷保证保险中的代位追偿权的不同、是否必须由被保险人权益转让后保险人才有权向债务人行使追偿权,这些问题法律规定并不明确。通过结合司法实践和学者观点,笔者主张车贷保证保险的代位追偿权与传统财产保险代位追偿权不同,代位追偿权是保险人的自有权利,有权向债务人直接追偿而不需要被保险人的权益转让,这样既能够为及时挽回损失争取时间,又可以节约司法成本。
[Abstract]:The motor vehicle consumer loan guarantee insurance (hereinafter referred to as the vehicle loan guarantee insurance) formally entered China in 1997. At that time, the automobile industry in China was in the initial stage of rapid development. In order to stimulate individual car consumption and promote the domestic economic development, the major insurance companies launched the vehicle loan guarantee insurance business vigorously under the initiative of the government, and were effective. It stimulates individual car consumption and domestic economic growth. But because banks and insurance companies are passing off their duty to review the borrowers' duties, they often lead to overdue borrowers' overdue payments and continue to spread. According to the data of the people's Bank of China, the car consumer loan is bad. The account has reached hundreds of billions of yuan, and the huge amount is shocking. As the car loan is overdue, the group litigation of the bank's arrears of the loan has also erupted. In the case, even the judges of the same court make different judgments. After studying, there are three main issues of dispute, that is, the nature of the insurance of vehicle loan guarantee is insurance or guarantee, and the insurance law or the guarantee law should be applied to the insurer how to exercise the right of subrogation. These three problems have also aroused extensive concern in the academic circle and are out of the question. There is a contending situation in a hundred schools of opinion.
At the same time, in order to eliminate the disorder of car loan litigation and discuss the train of thought of car loan dispute, the courts all over the country have discussed the trial plan of regulating the case of vehicle loan guarantee insurance disputes, and introduced different opinions on the trial, which formed the situation of each province and city. The draft stipulates that "when the people's court tries to determine the rights and obligations of the parties to the parties in a guarantee insurance contract, the people's court applies the insurance law; the insurance law does not stipulate and applies the guarantee law", the problem seems to be relieved. However, this opinion is after all. The author tries to analyze and discuss three issues of dispute in the judicial practice of vehicle loan guarantee insurance. Thin proposal, I hope that China's vehicle loan guarantee insurance related laws and regulations to improve the integrity of the help, teachers should be criticized for improper.
The first part is the legal nature of the insurance of vehicle loan guarantee. There is a great controversy in the theory and practice of the nature of the guarantee insurance. On the basis of the views of the scholars, the author insists that the insurance of vehicle loan guarantee should be defined as a special property insurance system.
The second part, vehicle loan guarantee insurance should apply "insurance law >" and "Contract Law >." vehicle loan guarantee insurance has dual attributes of guarantee and insurance. In judicial practice, the application of "Guarantee Law > Insurance Law" is the focus of the dispute of insurance of vehicle loan guarantee. The author is in the first part on the basis of analyzing the legal nature of the insurance of vehicle loan, and combining with the legal nature of the insurance of vehicle loan. According to the actual situation of judicial practice, it is considered that the relevant civil laws and regulations, such as the insurance law and the contract law, should be strictly applied in the insurance of vehicle loan guarantee insurance.
The third part, the right of subrogation recourse is the right of the insurer. The insurer should undertake the right of the bank after the insurer is carrying out the insurance liability, but how to realize many problems, such as the difference between the traditional subrogation right and the subrogation right in the insurance of the vehicle loan guarantee, whether it must be insured after the transfer of the rights and interests of the insured. Talent has the right to exercise the right of recourse to the debtor. The legal provisions of these issues are not clear. Through the combination of judicial practice and the viewpoint of scholars, the author claims that the subrogation right of the subrogation of the vehicle loan guarantee insurance is different from the traditional property insurance subrogation. The right of subrogation is the right of the insurer's own right, and the right of direct compensation to the debtor without being insured. The transfer of the rights and interests of the insured can not only save time but also save the cost of justice.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.284;D923.6

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