损害补偿原则在我国保险法中的规定及缺失研究

发布时间：2018-07-10 07:32

本文选题：损害补偿 + 保险利益　；参考：《上海海运学院》2002年硕士论文

【摘要】： 早在大学时代接触保险法时就发现保险法中对于许多制度有争论之处。投保人是否应当具有保险利益，人身保险中的保险利益问题，代位求偿问题，超额投保的善恶意之分及健康保险中的重复保险问题等均存有争议。事实上，损害补偿原则即是这些问题的中心。从保险的创立原意来看，损害补偿原则的贯彻可以让保险的实施更合理，发展更健全。因此损害补偿原则的讨论将可以更清楚了解保险法中相关争论的重心，甚至可以找到合理的立论加以解决。损害补偿原则是保险法诸原则的基础，指当保险事故发生使被保险人遭受损失时，保险人必须在责任范围内对被保险人所受的实际损失进行补偿，使被保险人业因保险事故发生造成的损害降到最低，使其恢复到损失前所处的经济状况。我国保险法在相关规定中确认了这一原则。但是未将本原则作出明确规定。据我国《保险法》第十一条第四款的规定，可知我国保险法将保险标的作为分来标准，将保险分成财产保险和人身保险两大类。由于财产保险与人身保险的性质与目的不同，因此很难归纳出一个标准来规范。事实上也造成损害补偿原则相关制度适用上的困扰，因此对现行保险法的保险分类方式建议修改成—损害补偿保险与定额给付保险，这样使制度的适用上有一定的标准可依循。损害是利益的反面，因此保险利益在损害补偿原则中有无法取代的作用，，但是大陆法系与英美法系中对保险利益有不同的见解，使我国保险法在这一问题上存有混淆，也影响了损害补偿原则的适用。如果从损害补偿原则的角度来看保险利益的主体问题，将可解决现行制度上常发生的争议。保险代位是损害补偿原则的派生原则早为学者所肯定，但是海商法中的委付与物上代位又有何不同之处也是本文须讨论的重点。我国保险法只规定了重复保险，无法解决数个保险合同同时存在时，如何遵守损害补偿原则的问题，因此有必要引入保险竞合概念，在保险法修改时填补这一空白。保险理赔是损害补偿原则真正贯彻落实的关键。因此从保险理赔的角度观察损害补偿原则有其特殊性。事实上，无论是不足额保险或是超额保险均须有符合损害补偿原则的规定。损害补偿原则在保险制度中具有重要地位，许多学者对此原则均有其独到的见解。由于篇幅及笔者能力所限，本文仅以损害补偿原则在保险法中的运用及其缺失为题，通过收集各国对于损害补偿原则的著作论文，比较、归纳分析相关资料，总结提出使损害补偿原则能在保险法中贯彻落实，并与其相关制度—保险利益、重复保险与保险竞合、保险代位及实际损害理赔等统一配套使用的方案，及保险法的修改建议。
[Abstract]:Many systems in insurance law have been debated in the law of insurance as early as college time when they came into contact with the law of insurance. Whether the policy holder should have the insurance interest, the insurance interest question in the life insurance, the subrogation claim question, the good and malevolent division of the over-insured and the duplicate insurance question in the health insurance and so on all have the dispute. In fact, the principle of compensation for damage is at the heart of these issues. From the original meaning of insurance, the implementation of the principle of compensation for damages can make the implementation of insurance more reasonable and more sound. Therefore, the discussion of the principle of compensation for damages will give a clearer understanding of the focus of the debate in the insurance law, and even find a reasonable argument to solve it. The principle of compensation for damages is the basis of the principles of insurance law, which means that when the insured suffers losses due to the occurrence of an insurance accident, the insurer must compensate the insured for the actual losses suffered by the insured within the scope of his liability. To minimize the damage caused by insurance accidents and restore the insured industry to the economic condition it was in before the loss. The insurance law of our country confirms this principle in the relevant regulation. However, this principle is not clearly defined. According to the provisions of Article 11 (4) of our country's Insurance Law, we can see that the Insurance Law takes the subject-matter of insurance as the standard of division, and divides the insurance into two categories: property insurance and personal insurance. Because the nature and purpose of property insurance and personal insurance are different, it is difficult to conclude a standard to standardize. As a matter of fact, it also causes problems in the application of the relevant systems of the principle of compensation for damages. Therefore, the classification of insurance in the current insurance law should be revised as-damage compensation insurance and fixed payment insurance, so that there are certain standards to be followed in the application of the system. Damage is the opposite of interest, so insurance interest plays an irreplaceable role in the principle of compensation for damages. However, there are different views on insurance interests in civil law system and common law system, which makes the insurance law of our country confused on this issue. It also affects the application of the principle of compensation for damages. If we look at the subject problem of insurance interest from the angle of the principle of compensation for damages, we can solve the disputes that often occur in the current system. The subrogation of insurance is the derivative principle of the principle of compensation for damages, but what is the difference between the subrogation and the subrogation in goods in maritime law is also the key point to be discussed in this paper. The insurance law of our country only provides for duplicate insurance, which cannot solve the problem of how to abide by the principle of compensation for damages when several insurance contracts exist simultaneously. Therefore, it is necessary to introduce the concept of insurance concurrence and fill in this gap when the insurance law is amended. Insurance claims is the key to implement the principle of compensation for damages. Therefore, it has its particularity to observe the principle of damage compensation from the angle of insurance claim. In fact, both underinsurance and overinsurance must comply with the principle of compensation for damages. The principle of compensation for damages plays an important role in the insurance system, and many scholars have their own opinions on this principle. Due to the limitation of space and the author's ability, this paper focuses on the application of the principle of compensation for damages in the insurance law and its deficiency. Through the collection of works and papers on the principle of compensation for damages in various countries, the paper summarizes and analyzes the relevant materials. In this paper, the author puts forward that the principle of compensation for damages can be carried out in the insurance law, and that the relevant systems-insurance interests, duplicate insurance and insurance competition, insurance subrogation and actual damage claim can be used together, and the amendment of insurance law is also suggested.
【学位授予单位】：上海海运学院
【学位级别】：硕士
【学位授予年份】：2002
【分类号】：D922.284

【引证文献】