保险人代位求偿权制度研究
发布时间：2018-07-18 07:50
【摘要】：保险人代位求偿制度是民法债权人代位理论与保险法损失补偿原则相结合的产物。作为利益调节机制,保险代位求偿权的行使,可以阻止被保险人因保险事故双重获利、避免责任第三人逃脱民事赔偿义务、弥补保险人经营损失。在我国保险实务中,保险公司实际行使代位求偿权的案件数量与巨大的保险赔偿金数额相差甚远,保险人宁愿牺牲部分可得利益,也不愿过多涉及法律规范混乱、诉讼结果不可预料的保险代位制度。要破解此困局,立法者必须明晰我国保险人代位求偿制度的设计缺陷,在有益借鉴域外先进法律经验的基础上,对代位求偿权的取得、行使以及效力适用进行系统梳理、重点规范。我国承袭大陆法系传统,确立保险人代位求偿权为法定的债权转让,保险人在保险赔偿金范围内享有对事故责任人的损害请求权,保险实务中的“权益转让书”不能作为代位求偿权的转让凭证,应当由行业协会统一规范其内容,防止保险人以代位求偿权为借口,利用优势地位侵害被保险人权益。补偿性人身保险合同,可以直接计算被保险人财产损失的,应当允许保险人进行代位求偿,但是代位求偿权适用范围的扩张过程,必须与我国保险业发展程度相适应、与我国医疗保险体制等社会制度相匹配。2013年最高人民法院发布《关于适用中华人民共和国保险法若干问题的解释(二)》,对保险人代位求偿权的行使名义、诉讼时效进行了规范,尽管学界对此仍有争议,但是司法实践应当按照新规定统一实施。以保险人的名义进行代位符合我国代位求偿权的法定转移性；保险人适用独立的诉讼时效,与我国保险理赔现状相适应,可以提高保险人实现代位权的积极性。保险人代位求偿权行使对象的限制,应以是否与被保险人存在利益一致性作为判别标准,同时应肯定法人、社会组织的成员属于被保险人的“组成人员”范畴。对于保险人代位求偿权与被保险人直接求偿权的受偿顺序问题,我国保险立法应当适用“被保险人优先”原则,保障遭受事故损失的被保险人先行受偿,以符合代位求偿权设定的价值目标。但是,当被保险人对代位权实施了积极或消极地阻碍行为时,立法也应当对保险人进行保护：保险合同签订前被保险人做出损害豁免行为,保险人履行询问义务,被保险人未如实告知的,保险人可以拒绝给付保险金；被保险人在保险合同签订后的免责行为,保险人可利用保险合同中的豁免禁止加以防范；保险事故发生后被保险人故意免除第三人赔偿责任的,保险人可以依法拒赔或者扣减相应保险金；被保险人出于善意与第三人和解的,不应被视为阻碍代位求偿权实现的行为。
[Abstract]:The subrogation system of insurer is the result of the combination of subrogation theory of creditors in civil law and the principle of loss compensation in insurance law. As a mechanism of interest regulation, the exercise of subrogation right of insurance can prevent the insured from making double profits because of the insurance accident, avoid the third party of liability escape from the civil compensation obligation, and make up for the insurer's business losses. In China's insurance practice, the number of cases in which insurance companies actually exercise subrogation rights is far from the huge amount of insurance compensation, and the insurer would rather sacrifice some of the available benefits rather than involve too much confusion of legal norms. The insurance subrogation system with unpredictable litigation results. In order to solve this dilemma, the legislator must make clear the design defects of the subrogation system of the insurer in our country, and on the basis of the beneficial reference of the advanced legal experience outside the country, systematically comb the acquisition, exercise and application of the subrogation right. Key norms. Our country inherits the tradition of civil law system, establishes the subrogation right of the insurer as the legal assignment of creditor's rights, and the insurer enjoys the right to claim for damage to the person responsible for the accident within the scope of the insurance compensation. The "transfer of rights and interests" in insurance practice can not be used as the transfer certificate of subrogation claim, and should be standardized by the trade association to prevent the insurer from infringing the insurant's rights and interests by using the subrogation right as an excuse. If a compensatory life insurance contract can directly calculate the property loss of the insured, the insurer shall be allowed to make a subrogation claim, but the process of expansion of the scope of application of the subrogation claim must be adapted to the degree of development of the insurance industry in our country. In 2013, the Supreme people's Court issued the explanation on the Application of the Insurance Law of the people's Republic of China (2), which regulated the exercise of subrogation of insurer's right of subrogation and limitation of action. Although there is still controversy in academic circles, judicial practice should be carried out in accordance with the new regulations. The subrogation in the name of the insurer accords with the legal transfer of the subrogation right in our country, and the insurer can improve the enthusiasm of the insurer to realize the right of subrogation by applying the independent limitation of action and adapting to the present situation of the insurance settlement in our country. The limitation of the object of the insurer's right of subrogation should be judged by the consistency of interest with the insured, and at the same time, the legal person and the members of the social organization should be affirmed to belong to the category of "member" of the insured. With regard to the order of the insurer's subrogation right and the insurant's direct claim, China's insurance legislation should apply the principle of "insurant priority" to ensure that the insured who suffers an accident loss is compensated first. In order to meet the subrogation right to set the value of the goal. However, when the insured actively or passively obstructs the right of subrogation, the legislation should also protect the insurer: before the signing of the insurance contract, the insured makes the act of exemption from damage, and the insurer performs the obligation of inquiry. If the insured fails to inform the insured truthfully, the insurer may refuse to pay the insurance premium; the insurer may take advantage of the exemption prohibition in the insurance contract to guard against the insured's exemption after the signing of the insurance contract; If the insured intentionally exempts the third party from liability for compensation after an insurance accident, the insurer may refuse to compensate or deduct the corresponding insurance money according to law; if the insured conciliates with the third party out of good faith, it shall not be regarded as an act impeding the realization of the subrogation.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
本文编号：2131234
[Abstract]:The subrogation system of insurer is the result of the combination of subrogation theory of creditors in civil law and the principle of loss compensation in insurance law. As a mechanism of interest regulation, the exercise of subrogation right of insurance can prevent the insured from making double profits because of the insurance accident, avoid the third party of liability escape from the civil compensation obligation, and make up for the insurer's business losses. In China's insurance practice, the number of cases in which insurance companies actually exercise subrogation rights is far from the huge amount of insurance compensation, and the insurer would rather sacrifice some of the available benefits rather than involve too much confusion of legal norms. The insurance subrogation system with unpredictable litigation results. In order to solve this dilemma, the legislator must make clear the design defects of the subrogation system of the insurer in our country, and on the basis of the beneficial reference of the advanced legal experience outside the country, systematically comb the acquisition, exercise and application of the subrogation right. Key norms. Our country inherits the tradition of civil law system, establishes the subrogation right of the insurer as the legal assignment of creditor's rights, and the insurer enjoys the right to claim for damage to the person responsible for the accident within the scope of the insurance compensation. The "transfer of rights and interests" in insurance practice can not be used as the transfer certificate of subrogation claim, and should be standardized by the trade association to prevent the insurer from infringing the insurant's rights and interests by using the subrogation right as an excuse. If a compensatory life insurance contract can directly calculate the property loss of the insured, the insurer shall be allowed to make a subrogation claim, but the process of expansion of the scope of application of the subrogation claim must be adapted to the degree of development of the insurance industry in our country. In 2013, the Supreme people's Court issued the explanation on the Application of the Insurance Law of the people's Republic of China (2), which regulated the exercise of subrogation of insurer's right of subrogation and limitation of action. Although there is still controversy in academic circles, judicial practice should be carried out in accordance with the new regulations. The subrogation in the name of the insurer accords with the legal transfer of the subrogation right in our country, and the insurer can improve the enthusiasm of the insurer to realize the right of subrogation by applying the independent limitation of action and adapting to the present situation of the insurance settlement in our country. The limitation of the object of the insurer's right of subrogation should be judged by the consistency of interest with the insured, and at the same time, the legal person and the members of the social organization should be affirmed to belong to the category of "member" of the insured. With regard to the order of the insurer's subrogation right and the insurant's direct claim, China's insurance legislation should apply the principle of "insurant priority" to ensure that the insured who suffers an accident loss is compensated first. In order to meet the subrogation right to set the value of the goal. However, when the insured actively or passively obstructs the right of subrogation, the legislation should also protect the insurer: before the signing of the insurance contract, the insured makes the act of exemption from damage, and the insurer performs the obligation of inquiry. If the insured fails to inform the insured truthfully, the insurer may refuse to pay the insurance premium; the insurer may take advantage of the exemption prohibition in the insurance contract to guard against the insured's exemption after the signing of the insurance contract; If the insured intentionally exempts the third party from liability for compensation after an insurance accident, the insurer may refuse to compensate or deduct the corresponding insurance money according to law; if the insured conciliates with the third party out of good faith, it shall not be regarded as an act impeding the realization of the subrogation.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
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