复保险相关法律问题研究

发布时间：2018-03-31 17:00

本文选题：复保险　切入点：损害填补　出处：《上海海事大学》2005年硕士论文

【摘要】：复保险是保险法中贯彻损害填补原则与禁止不当利原则的重要机制之一,目的是为了防止被保险人企图借保险合同的订立,获得超额补偿。但是目前各国对复保险的立法比较粗略,学界对复保险的定义、构成要件、适用范围等基本问题尚存争议,因此本文就复保险概念及适用中的争议加以分析,并借此对我国《保险法》和《海商法》中关于复保险规定的完善提出建议。本文第一章主要阐述复保险的定义、构成要件及与其他相近概念的比较。笔者赞同复保险狭义论,同时还建议增加“同一被保险人”、“向数个保险人订立数个保险合同”、“保险期间重合”、“保险金总和超过保险价值”为复保险构成要件。同时,文章还将复保险定义与相关概念进行了区别。本文第二章主要阐述了复保险适用范围。目前理论界对此有三种观点,主要分歧在于复保险是否适用于人身保险。笔者认为复保险适用范围应根据损害的性质与险种的特性来分析,因此赞同重复保险适用于损害填补类保险原则。本文第三章主要阐述了复保险法律效力。《保险法》对复保险法律效力规定不甚明确,笔者认为应从投保人主观动机加以区分,分别规定善意复保险与恶意复保险的效力。本文第四章主要阐述了复保险通知义务,首先介绍了复保险通知义务的立法意旨、通知内容及通知的履行,接着将通知义务与告知义务进行了比较,并建议在增补违反通知义务法律后果的立法中,借鉴台湾地区立法,区分投保人是善意还是恶意,不赞成一律无效。本文第五章对被保险人与保险人的权益分别进行了阐述。首先对被保险人索赔方式和索赔最大数额进行了分析,并建议统一《保险法》与《海商法》关于被保险人索赔最大数额的不同规定,以便于被保险人得到足额赔偿。由于我国暂无保险费返还的法律规定,笔者建议参照英国《1906年海上保险法》的规定,并对其相应条文中复保险保费返还的限制作了分析。接着对保险人解除权的行使、保险人之间的分摊、追偿作了阐述,认为保险人解除权的行使不妨碍民法上撤销权的行使,并建议对复保险分摊条件加以细化以便于实务操作,同时认为将保险人之间追偿权定位于代位求偿权更有利于维护保险人利益。笔者在参阅了大量相关文献、分析了理论界相关争议的基础上撰写此文,希望能对我国复保险制度的完善有所帮助。
[Abstract]:Reinsurance is one of the important mechanisms of carrying out the principle of compensation of damages and prohibition of improper interest in the insurance law, in order to prevent the insured from attempting to conclude the insurance contract by way of insurance. However, there are still some disputes about the definition of reinsurance, the elements of composition, the scope of application and so on. Therefore, this paper analyzes the concept of reinsurance and the disputes in its application. Some suggestions on the improvement of the reinsurance regulations in China's Insurance Law and Maritime Law are put forward. The first chapter of this paper mainly expounds the definition of reinsurance, the constitutive elements and the comparison with other similar concepts. It is also proposed to add "the same insured", "to conclude several insurance contracts with several insurers", "to overlap the period of insurance", and "the sum of the insurance funds to exceed the insured value" as the constituent elements of the reinsurance. At the same time, This paper also distinguishes the definition of double insurance from related concepts. The second chapter of this paper mainly expounds the scope of application of reinsurance. At present, there are three views on this in the theoretical circle. The author thinks that the scope of application of double insurance should be analyzed according to the nature of damage and the characteristics of insurance, so the author agrees that duplicate insurance is applicable to the principle of compensation of damage. The third chapter mainly expounds the legal effect of reinsurance. The law of insurance is not clear about the legal effect of reinsurance. The author thinks that the validity of bona fide reinsurance and malicious reinsurance should be distinguished from the subjective motive of the policyholder. The fourth chapter mainly expounds the obligation of notice of reinsurance. Firstly, it introduces the legislative intent, the content of notice and the performance of notice, and then compares the obligation of notice with the obligation of notification. In addition to the legislation of the legal consequences of breach of the obligation of notification, it is suggested that the legislation of Taiwan should be used for reference to distinguish whether the policyholder is in good faith or malicious, and that disapproval is null and void. The fifth chapter expounds the rights and interests of the insured and the insurer respectively. It is also proposed to unify the different provisions of the Insurance Law and the Maritime Law on the maximum amount claimed by the insured, so as to facilitate the insured to receive full compensation. The author suggests to refer to the provisions of the British Marine Insurance Law of 1906, and to analyze the limitation of the return of the premium of reinsurance in the corresponding articles, and then expounds the exercise of the insurer's right of rescission, the apportionment among the insurers, and the recovery of the premium. It is considered that the exercise of the insurer's right of rescission does not hinder the exercise of the right of rescission in civil law, and it is suggested that the allocation conditions of reinsurance should be refined in order to facilitate the practical operation. At the same time, the author thinks that it is more advantageous to maintain the insurer's interests by positioning the right of recourse among insurers in the right of subrogation. This paper is written on the basis of consulting a lot of relevant documents and analyzing the related disputes in the theoretical circle, hoping to be helpful to the perfection of the reinsurance system in China.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.284

【引证文献】