论人身保险代位求偿权
发布时间：2018-08-07 20:51
【摘要】：在我国现行保险法中,保险代位求偿权被规定仅适用于财产保险,人身保险中不允许代位求偿,这引起了很多学者的争议。而在实务中,也出现了很多案件的判决结果大相径庭。在《人身损害赔偿解释》和《侵权责任法》相继生效后,人身保险中引入代位求偿制度得到了进一步的理论支持。本文结合现有国情对我国保险法中代位求偿权制度是否能够引入人身险进行分析,指出了人身险代位求偿权的缺失及其原因,通过对人身险中适用保险代位求偿权的理论和实践探析,分别对人寿险、意外伤害险以及健康险三大险种如何适用这一制度进行详细论述,为我国的保险立法和实践提出了建议。第一章主要分析我国人身保险代位求偿权的缺失及其原因。着重对人身保险不适用代位求偿权的原因进行分析,主要有以下四方面：第一,人身无价,人的身体和寿命不能用金钱来衡量；第二,保险法对弱者的保护；第三,损失补偿原则是保险代位求偿权的基础；第四,结合我国国情进行分析。第二章结合国外经验从理论和实践两个方面着手,深入探析人身保险中可以引入保险代位求偿权。对于这个问题,理论界和实务界都存在广泛的争议,我们不能完全否定哪种观点,笔者更为主张在部分人身保险中存在保险代位求偿权的适用余地。理论分析主要包括：人身权中财产性利益可转让、损失补偿原则在人身保险中的适用以及保险人与侵权第三人的责任承担三个方面。实践分析主要运用案例评析的方法,对司法实务中出现的分歧进行探讨。第三章笔者从人寿险、意外伤害险以及健康险这三个人身险的基本险种展开论述,分别探讨保险代位求偿权在每一个险种中是否适用,以及如何适用,较为详细地将人身险代位求偿制度的具体适用作了论证。第四章结合当前的法律环境,笔者在立法层面以及对保险公司和法院如何更好地应对这种状况提出一些个人看法,其中法院如何采取措施是本文的新颖之处,以期通过文章的研究,能为保险代位求偿权在人身保险中的适用推进一小步。
[Abstract]:In the current insurance law of our country, the subrogation right of insurance is only applicable to the property insurance, and no subrogation is allowed in the life insurance, which has aroused the controversy of many scholars. But in practice, also appeared many cases the judgment result to differ greatly. After the interpretation of personal injury compensation and the Tort liability Law came into effect, the introduction of subrogation in personal insurance has been further supported by theory. This paper analyzes whether the system of subrogation right in insurance law of our country can introduce life insurance, and points out the lack of subrogation right of life insurance and its reasons. By analyzing the theory and practice of the right of subrogation in life insurance, this paper discusses in detail how to apply this system to life insurance, accident injury insurance and health insurance. Some suggestions are put forward for our country's insurance legislation and practice. The first chapter mainly analyzes the lack of subrogation right of life insurance in our country and its reasons. The reasons why life insurance does not apply to subrogation are analyzed in detail. There are four main aspects: first, the person is priceless, the person's body and life span cannot be measured with money; second, the insurance law protects the weak; third, The principle of loss compensation is the basis of insurance subrogation. In the second chapter, combined with foreign experience, the author makes a deep analysis of the right of subrogation in personal insurance. For this problem, there is a wide range of disputes in the theoretical and practical circles, we can not completely deny which point of view, the author also advocates the existence of insurance subrogation in part of life insurance. The theoretical analysis mainly includes three aspects: the transferability of property interests in personal rights, the application of the principle of compensation for losses in personal insurance, and the liability of the insurer and the third party in tort. The practical analysis mainly uses the method of case analysis to discuss the differences in judicial practice. In the third chapter, the author discusses the basic types of life insurance, accident injury insurance and health insurance, and discusses whether the subrogation right of insurance is applicable in each insurance, and how to apply it. The application of life insurance subrogation system is demonstrated in detail. The fourth chapter combines the current legal environment, the author puts forward some personal views on how to deal with this situation better for insurance companies and courts in the legislative level, among which, how the courts take measures is the novelty of this article. The purpose of this paper is to promote the application of subrogation in life insurance.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
本文编号：2171311
[Abstract]:In the current insurance law of our country, the subrogation right of insurance is only applicable to the property insurance, and no subrogation is allowed in the life insurance, which has aroused the controversy of many scholars. But in practice, also appeared many cases the judgment result to differ greatly. After the interpretation of personal injury compensation and the Tort liability Law came into effect, the introduction of subrogation in personal insurance has been further supported by theory. This paper analyzes whether the system of subrogation right in insurance law of our country can introduce life insurance, and points out the lack of subrogation right of life insurance and its reasons. By analyzing the theory and practice of the right of subrogation in life insurance, this paper discusses in detail how to apply this system to life insurance, accident injury insurance and health insurance. Some suggestions are put forward for our country's insurance legislation and practice. The first chapter mainly analyzes the lack of subrogation right of life insurance in our country and its reasons. The reasons why life insurance does not apply to subrogation are analyzed in detail. There are four main aspects: first, the person is priceless, the person's body and life span cannot be measured with money; second, the insurance law protects the weak; third, The principle of loss compensation is the basis of insurance subrogation. In the second chapter, combined with foreign experience, the author makes a deep analysis of the right of subrogation in personal insurance. For this problem, there is a wide range of disputes in the theoretical and practical circles, we can not completely deny which point of view, the author also advocates the existence of insurance subrogation in part of life insurance. The theoretical analysis mainly includes three aspects: the transferability of property interests in personal rights, the application of the principle of compensation for losses in personal insurance, and the liability of the insurer and the third party in tort. The practical analysis mainly uses the method of case analysis to discuss the differences in judicial practice. In the third chapter, the author discusses the basic types of life insurance, accident injury insurance and health insurance, and discusses whether the subrogation right of insurance is applicable in each insurance, and how to apply it. The application of life insurance subrogation system is demonstrated in detail. The fourth chapter combines the current legal environment, the author puts forward some personal views on how to deal with this situation better for insurance companies and courts in the legislative level, among which, how the courts take measures is the novelty of this article. The purpose of this paper is to promote the application of subrogation in life insurance.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.284
【参考文献】
相关硕士学位论文 前1条
1 李晓曦;保险代位权的适用范围[D];西南政法大学;2012年
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