诉讼财产保全责任险法律问题研究

发布时间：2018-06-14 09:14

本文选题：责任保险 + 保证保险　；参考：《大连海事大学》2017年硕士论文

【摘要】：随着社会发展进程的不断加快,传统的诉讼保全担保模式已经不能满足社会的发展,诉讼财产保全责任险的产生缓解了诉讼当事人在申请财产保全过程中的资金压力;由于其依靠于保险公司这样资金雄厚的企业,减轻了人民法院审查担保可靠性的压力;同时其投保便捷,程序简洁,手续明了,且费率低的优势明显,吸引了众多受众群体,然而对其属于何种保险,其保单保函效力如何等存在争议,其在司法实务承保过程中也存在诸多问题。本文通过研究诉讼财产保全责任险同责任保险、保证保险的关系,保单保函的担保能力、效力等,旨在探索诉讼财产保全责任险的相关法律问题。诉讼财产保全责任险的法律定性方面,通过研究其与责任保险和保证保险的关系,以及其与保证担保的关系等,最终建议作出相关立法,将其定性为责任保险项下,但又不完全同于责任保险的一种特殊的保险模式。由于其与保证保险和责任保险的交叉部分更类似于一种中间险种的模式,针对其特殊性对其法律定性作出特殊规定。与责任保险相同的部分适用责任保险的相关法律规定,冲突部分独创性地对其作出法律规定,该部分法律只针对诉讼财产保全责任险一种作出的规定,其他险种并不适用。保单保函的法律属性方面,从保单保函是否具有认定申请人已经提供保证担保的资质入手,将保单保函中保险公司和申请人的连带责任由法律进行强制规定,并且亦由法律强制规定此种连带责任排除保险公司内部文件或内部规定以及与申请人的约定;对保单保函的法律性质认定为保险领域的"独立保函"即"先付款,后争议"。在赔付风险方面,规定为申请人投保诉讼财产保全责任险的,由此风险转移给保险公司承担,并且为无条件赔付,但是可以规定保险公司可以先行赔付之后,依据公司内部文件或内部规定以及与申请人的约定等对申请人享有追偿权。在保险公司对被申请人的抗辩权方面,规定为只有在申请人和被申请人存在欺诈时保险公司即享有对被申请人索赔权的抗辩,其余条件下均不具有抗辩权。除上述之外,对诉讼财产保全责任险的保险责任、承保风险、赔付以及免责条款等做出探析并提出相关建议,以期在实务中对诉讼财产保全责任险的运用起到一定的作用。
[Abstract]:With the rapid development of the society, the traditional litigation preservation guarantee mode can not meet the social development. The emergence of litigation property preservation liability insurance alleviates the financial pressure of litigants in the process of applying for property preservation. Because it relies on an enterprise with such a strong capital as an insurance company, it alleviates the pressure on the people's court to examine the reliability of the guarantee; at the same time, it has the advantages of convenient insurance, simple procedures, clear procedures, and low rates, which has attracted a large number of audience groups. However, there are disputes about what kind of insurance it belongs to and how effective the policy guarantee is, and there are also many problems in the process of judicial practice underwriting. By studying the relationship between liability insurance and liability insurance, the relationship between liability insurance, the guarantee ability and effectiveness of the policy guarantee, this paper aims to explore the relevant legal issues of the liability insurance for the preservation of litigation property. In the legal qualitative aspect of litigation property preservation liability insurance, by studying its relationship with liability insurance and guarantee insurance, as well as its relationship with guaranty guarantee, it is finally proposed to make relevant legislation to characterize it as liability insurance. However, it is not exactly the same as a special insurance mode of liability insurance. Because it is more similar to the intersecting part of guarantee insurance and liability insurance, it makes a special regulation on its legal nature according to its particularity. The same part of liability insurance applies the relevant legal provisions of liability insurance, the conflict part originates to make the legal stipulation to it, this part of the law is only one kind of stipulation for the lawsuit property preservation liability insurance, other kinds of insurance do not apply. With regard to the legal attributes of the policy guarantee, starting from whether the policy guarantee has the qualification to confirm that the applicant has already provided the guarantee, the joint and several liabilities of the insurance company and the applicant in the policy guarantee shall be compulsorily stipulated by law. And it is also stipulated by law that this kind of joint and several liability excludes the internal documents or internal regulations of the insurance company and the agreement with the applicant; the legal nature of the policy guarantee is regarded as the "independent guarantee" in the field of insurance, that is, "payment first, then dispute". In the aspect of indemnifying risks, where it is stipulated that the applicant shall be insured against the liability insurance for the preservation of litigation property, the risk shall be transferred to the insurance company and paid unconditionally, but it may be stipulated that the insurance company may pay in advance, According to the company's internal documents or internal regulations and the agreement with the applicant to enjoy the right of recovery against the applicant. As for the defense right of the insurance company against the respondent, it is stipulated that the insurance company has the defense to the defendant's right of claim only when the applicant and the respondent have fraud, and the other conditions do not have the right of defense. In addition to the above, this paper makes an analysis of the insurance liability, underwriting risk, indemnity and exemption clauses of litigation property preservation liability insurance, and puts forward some relevant suggestions, in order to play a certain role in the application of litigation property preservation liability insurance in practice.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.28

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