保险代位追偿原则探析
发布时间：2018-08-17 19:25
【摘要】：代位追偿原则是保险补偿原则的派生原则之一，在众多保险原则之中占有比较重要的地位，该原则体现了“禁止得利”这一保险的核心内容。本文分三部分从理论和实践两方面对保险代位追偿原则进行剖析。 第一部分从该原则的起源和理论基础两方面对代位追偿原则进行概述。第二部分介绍保险代位追偿原则的主要内容，包括代位追偿的目的、功能、特点、法律依据、行使条件、成立的时间和事由、行使的名义以及实质等方面的内容，其中有部分内容在理论界仍处于争论之中，观点不一，笔者从自己的思路出发，，表明了立场，对于理由不是非常充分的观点，给出了相应的补充。 前两部分从保险代位追偿原则的起源以及目的、功能等主要内容对该原则进行了深入地剖析，通过剖析我们看到，在理论上，保险代位追偿原则的实现是有其理论基础的，这一原则的实施得到了普遍的支持；在法律上，我国《保险法》、《海商法》等法律法规都对保险代位追偿权给予了相应的法律支持，使其在行使的时候有法可依，有章可循。保险代位追偿原则符合社会公平原则，避免了被保险人的不当得利，使保险的真谛得以体现。但在实践中保险代位追偿原则的实施却显得力不从心，由此引出了第三部分，即如何解决更好地实现保险代位追偿原则的问题。 第三部分通过介绍保险代位追偿原则在我国应用的现状，找出存在的问题，然后指出，在目前的形势下，解决这一问题的最好方法就是在保险公司内部成立追偿部门。保险人在向被保险人赔付之后，代位取得向第三者责任方索赔的权利。在实务中，追偿主要采取法律诉讼形式，但采取法律形式也存在一定问题，从目前保险公司的人员设定情况来看，代位追偿的责任落在理赔部门的肩上，由理赔人员负责追偿，这就形成了矛盾：一是理赔部门人力不足，对现有赔案的处理已经让其抽身乏术，如果再加上对追偿案件的跟踪调查，理赔人员根本没有经历去做好这些事情；二是追偿案件往往涉及到法律诉讼，而理赔人员对法律相关知识的掌握相对匮乏，不利于今后的诉讼
[Abstract]:The principle of subrogation and recovery is one of the derivative principles of the principle of insurance compensation, which plays an important role in many insurance principles. This article is divided into three parts to analyze the principle of subrogation in theory and practice. The first part summarizes the principle of subrogation recovery from the origin and theoretical basis of the principle. The second part introduces the main contents of the principle of subrogation recovery, including the purpose, function, characteristics, legal basis, conditions of execution, time and cause of establishment, name and substance of subrogation, etc. Some of the content is still in the debate in the theoretical circle, the views are different, the author sets out from his own thinking, shows the position, to the reason is not very sufficient point of view, has given the corresponding supplement. The first two parts deeply analyze the principle of subrogation from its origin, purpose, function and so on. We find that in theory, the realization of the principle of subrogation recovery has its theoretical basis. The implementation of this principle has been generally supported; in law, the insurance law, maritime law and other laws and regulations of our country have given the corresponding legal support to the right of subrogation of insurance, so that it has laws to follow and rules to follow when it is exercised. The principle of insurance subrogation and recovery accords with the principle of social equity, avoids the insurant's improper enrichment, and embodies the true meaning of insurance. But in practice, the implementation of the principle of insurance subrogation recovery appears to be inadequate, which leads to the third part, that is, how to solve the problem of how to better realize the principle of insurance subrogation recovery. The third part introduces the present situation of the application of the subrogation principle in our country, finds out the existing problems, and points out that the best way to solve this problem is to set up the recovery department within the insurance company. After the insurer pays compensation to the insured, subrogation acquires the right to claim against the third party. In practice, recourse is mainly in the form of legal proceedings, but there are still some problems in taking legal form. Judging from the current situation of personnel establishment in insurance companies, the responsibility of subrogation for recovery falls on the shoulders of the claim settlement department, and the claimant is responsible for the recovery. This has formed the contradiction: first, the compensation department manpower is insufficient, the processing of the existing compensation case has already let it get out of the body lacks the skill, if adds to the tracing investigation to the recovery case, the claim personnel has not experienced to do these things well at all; Second, recovery cases often involve legal proceedings, but the relative lack of legal knowledge of claim settlement personnel is not conducive to future litigation.
【学位授予单位】：东北财经大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.284
本文编号：2188650
[Abstract]:The principle of subrogation and recovery is one of the derivative principles of the principle of insurance compensation, which plays an important role in many insurance principles. This article is divided into three parts to analyze the principle of subrogation in theory and practice. The first part summarizes the principle of subrogation recovery from the origin and theoretical basis of the principle. The second part introduces the main contents of the principle of subrogation recovery, including the purpose, function, characteristics, legal basis, conditions of execution, time and cause of establishment, name and substance of subrogation, etc. Some of the content is still in the debate in the theoretical circle, the views are different, the author sets out from his own thinking, shows the position, to the reason is not very sufficient point of view, has given the corresponding supplement. The first two parts deeply analyze the principle of subrogation from its origin, purpose, function and so on. We find that in theory, the realization of the principle of subrogation recovery has its theoretical basis. The implementation of this principle has been generally supported; in law, the insurance law, maritime law and other laws and regulations of our country have given the corresponding legal support to the right of subrogation of insurance, so that it has laws to follow and rules to follow when it is exercised. The principle of insurance subrogation and recovery accords with the principle of social equity, avoids the insurant's improper enrichment, and embodies the true meaning of insurance. But in practice, the implementation of the principle of insurance subrogation recovery appears to be inadequate, which leads to the third part, that is, how to solve the problem of how to better realize the principle of insurance subrogation recovery. The third part introduces the present situation of the application of the subrogation principle in our country, finds out the existing problems, and points out that the best way to solve this problem is to set up the recovery department within the insurance company. After the insurer pays compensation to the insured, subrogation acquires the right to claim against the third party. In practice, recourse is mainly in the form of legal proceedings, but there are still some problems in taking legal form. Judging from the current situation of personnel establishment in insurance companies, the responsibility of subrogation for recovery falls on the shoulders of the claim settlement department, and the claimant is responsible for the recovery. This has formed the contradiction: first, the compensation department manpower is insufficient, the processing of the existing compensation case has already let it get out of the body lacks the skill, if adds to the tracing investigation to the recovery case, the claim personnel has not experienced to do these things well at all; Second, recovery cases often involve legal proceedings, but the relative lack of legal knowledge of claim settlement personnel is not conducive to future litigation.
【学位授予单位】：东北财经大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.284
【参考文献】
相关期刊论文 前1条
1 孙积禄;保险代位权研究[J];法律科学.西北政法学院学报;2003年03期
本文编号：2188650
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