海上保险中代位求偿制度研究
发布时间：2018-09-05 16:23
【摘要】：目前国内关于海上保险代位求偿权的法律规定主要见之于《海商法》、《保险法》和《海事诉讼特别程序法》，但对如何理解这些法律的相关规定，司法实践和理论研究中争议颇多。尤其海上保险代位求偿权的定性问题，是该法律制度的基石所在!我国《海商法》在制订过程中曾经较多地借鉴了英美法，其第十二章〈海上保险合同〉即吸收了《英国1906年海上保险法》的一些成熟做法。当《海商法》的规定在理论上或实践中存在疑义时，我国的学者也倾向于用英美法的相关法律和习惯做法来进行解释。但我国毕竟属于大陆法系的国家，生搬硬套英美法的结果，往往和我国的现有规定格格不入。因此，笔者在本文中尝试用大陆法系一般民法理论与基本原则对海上保险代位求偿权制度进行解释，使其在我国法律体系下运作起来更为合理。对此，笔者立足于我国是大陆法系国家，而不是由于我国《海商法》的制订曾大量参照了英美法系的法律规定而仅仅以英美法系的作法为参照范本的写作模式，在广泛考察了大陆法系国家关于代位权、债权转移、债权转让等相关民法理论的基础上，比较了《海商法》和《保险法》关于代位求偿权法律性质的规定，阐明两者规定的一致性。 但是，保险法是商法的一个分支，其一些特殊规则有时也不能用民法的一般理论和基本原则来解释。笔者认为，保险代位求偿权制度的法理基础是损失补偿原则，任何违背这一原则的结论都是不科学的。例如，第三人以保险人的赔付不当为由抗辩保险人的代位求偿权时，如果仅仅从相关法律条文的字面意思来理解，第三人往往可以抗辩成功；如果保险人仅用民法的一般理论来证明其在不当赔付的情形下仍有权向第三人追偿，又通常难以自圆其说。笔者认为只有从损失补偿原则出发，才能合理地解释这个问题。在处理保险人的代位求偿权和被保险人的损害赔偿请求权之间产生的矛盾时，也只有从这一原则出发，才能真正符合代位求偿权制度的内在要求，平衡被保险入和保险人之间的利益。而且，为贯彻保险代位求偿权的精神，笔者认为从损失补偿原则出发，应该对“第三人”的概念进行扩张，而不应拘泥于第三人必须为最终责任承担者。对于无责任的第三人的赠与或自愿给付，只要这样的给付是为了弥补保险标的的损失，而且也不是完全排他性地赋予被保险人，保险人便有权对其主张行使代位求偿权。 此外，笔者还在文中介绍了一些国家实践中的一种习惯做法—贷款收据， 及对第三人的损害赔偿金的性质的探讨，希望我国保险公司在做好客户服务工 作，尽快赔付被保险人的损失的同时，又保护自己的代位求偿权不受影响。 同时，本文认为代位求偿权的法理基础—保险损失补偿原则是代位求偿权 的理论基础，，在理解和解释该制度时，应始终贯彻这一原则!因此，本文在对实 践和理论中经常出现的代位求偿权的实体和程序性争议进行全面和深入的探讨 和论述过程中，坚持以此为前提，力争在使该制度在具备实际可操作性的同时符 合保险的一般原理。 《海事诉讼特别程序法》的通过初步建立了代位求偿权制度的程序性机制， 同时也解决了不少之前存在的某些关于实体性规定的分歧。但不可否认的是，《海 诉法》有其立法上的缺陷，对此，笔者在对相关法条进行学理解释的同时，也指 出了其中的不足之处，希望能抛砖引玉，对代位求偿权的正确行使及将来修改《海 诉法》尽点绵薄之力。
[Abstract]:At present, the domestic legal provisions on subrogation of marine insurance are mainly found in Maritime Law, Insurance Law and Maritime Procedure Law, but there are many disputes in judicial practice and theoretical research on how to understand the relevant provisions of these laws. Especially, the qualitative problem of subrogation of marine insurance is the cornerstone of the legal system. In the course of formulation, China's Maritime Law has used Anglo-American law for reference. Chapter 12, Marine Insurance Contract, absorbs some mature practices of British Marine Insurance Law 1906. When the provisions of Maritime Law are doubtful in theory or practice, Chinese scholars also tend to use Anglo-American laws and practices. But after all, our country belongs to the continental law system, and the result of copying the Anglo-American law is often inconsistent with the existing provisions of our country. In view of this, the author, based on the fact that China is a continental law system country, does not refer to the Anglo-American law system for a large number of legal provisions, but only refers to the Anglo-American law system as a model of writing, and extensively inspects the continental law system countries about subrogation, transfer of creditor's rights, creditor's rights. On the basis of relevant civil law theories such as transfer, this paper compares the provisions on the legal nature of subrogation in Maritime Law and Insurance Law, and clarifies the consistency of the two provisions.
However, insurance law is a branch of commercial law, and some of its special rules can not be explained by the general theory and basic principles of civil law. In order to defend the insurer's right of subrogation, the third party can always defend if it is understood only from the literal meaning of the relevant legal provisions; if the insurer only uses the general theory of civil law to prove that he still has the right to recover from the third party in the case of improper compensation, it is usually difficult to justify himself. In dealing with the contradiction between the insurer's right of subrogation and the insured's right of claim for damages, only from this principle can we truly meet the inherent requirements of the subrogation system and balance the interests between the insured and the insurer. In order to carry out the spirit of insurance subrogation, the author thinks that the concept of "third party" should be expanded from the principle of compensation for loss, and should not be constrained by the fact that the third party must be the ultimate liability bearer. Nor is it wholly exclusive to the insured, and the insurer has the right to exercise the right of subrogation.
In addition, the author also introduces some customary practices in some countries, such as loan receipts.
And the nature of damages for the third party, I hope our insurance companies are good at customer service workers.
As soon as possible, it will compensate the insured's loss as soon as possible, while protecting his right of subrogation.
At the same time, the author thinks that the principle of insurance compensation is the right of subrogation.
On the theoretical basis, we should always implement this principle when we understand and explain this system.
The substantive and procedural disputes of subrogation right which often appear in practice and theory are discussed comprehensively and thoroughly.
In the course of discussion, we should adhere to this premise and strive to make the system practical and operable at the same time.
The general principle of insurance.
The adoption of the maritime procedure law has preliminarily established a procedural mechanism for the right of subrogation.
At the same time, it has solved some of the previous differences on substantive provisions.
The law of litigation has its legislative defects. In this regard, the author also makes a theoretical explanation of the relevant articles, and also points out that
It is hoped that the right of subrogation can be exercised correctly and the future amendment can be made.
We should try our best to make some efforts.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D922.284;D925.1
本文编号：2224810
[Abstract]:At present, the domestic legal provisions on subrogation of marine insurance are mainly found in Maritime Law, Insurance Law and Maritime Procedure Law, but there are many disputes in judicial practice and theoretical research on how to understand the relevant provisions of these laws. Especially, the qualitative problem of subrogation of marine insurance is the cornerstone of the legal system. In the course of formulation, China's Maritime Law has used Anglo-American law for reference. Chapter 12, Marine Insurance Contract, absorbs some mature practices of British Marine Insurance Law 1906. When the provisions of Maritime Law are doubtful in theory or practice, Chinese scholars also tend to use Anglo-American laws and practices. But after all, our country belongs to the continental law system, and the result of copying the Anglo-American law is often inconsistent with the existing provisions of our country. In view of this, the author, based on the fact that China is a continental law system country, does not refer to the Anglo-American law system for a large number of legal provisions, but only refers to the Anglo-American law system as a model of writing, and extensively inspects the continental law system countries about subrogation, transfer of creditor's rights, creditor's rights. On the basis of relevant civil law theories such as transfer, this paper compares the provisions on the legal nature of subrogation in Maritime Law and Insurance Law, and clarifies the consistency of the two provisions.
However, insurance law is a branch of commercial law, and some of its special rules can not be explained by the general theory and basic principles of civil law. In order to defend the insurer's right of subrogation, the third party can always defend if it is understood only from the literal meaning of the relevant legal provisions; if the insurer only uses the general theory of civil law to prove that he still has the right to recover from the third party in the case of improper compensation, it is usually difficult to justify himself. In dealing with the contradiction between the insurer's right of subrogation and the insured's right of claim for damages, only from this principle can we truly meet the inherent requirements of the subrogation system and balance the interests between the insured and the insurer. In order to carry out the spirit of insurance subrogation, the author thinks that the concept of "third party" should be expanded from the principle of compensation for loss, and should not be constrained by the fact that the third party must be the ultimate liability bearer. Nor is it wholly exclusive to the insured, and the insurer has the right to exercise the right of subrogation.
In addition, the author also introduces some customary practices in some countries, such as loan receipts.
And the nature of damages for the third party, I hope our insurance companies are good at customer service workers.
As soon as possible, it will compensate the insured's loss as soon as possible, while protecting his right of subrogation.
At the same time, the author thinks that the principle of insurance compensation is the right of subrogation.
On the theoretical basis, we should always implement this principle when we understand and explain this system.
The substantive and procedural disputes of subrogation right which often appear in practice and theory are discussed comprehensively and thoroughly.
In the course of discussion, we should adhere to this premise and strive to make the system practical and operable at the same time.
The general principle of insurance.
The adoption of the maritime procedure law has preliminarily established a procedural mechanism for the right of subrogation.
At the same time, it has solved some of the previous differences on substantive provisions.
The law of litigation has its legislative defects. In this regard, the author also makes a theoretical explanation of the relevant articles, and also points out that
It is hoped that the right of subrogation can be exercised correctly and the future amendment can be made.
We should try our best to make some efforts.
【学位授予单位】：上海海事大学
【学位级别】：硕士
【学位授予年份】：2003
【分类号】：D922.284;D925.1
【引证文献】
相关硕士学位论文 前5条
1 刘迪;海上保险代位求偿权行使程序法律问题研究[D];大连海事大学;2011年
2 李婉真;海上保险中的代位求偿权制度研究[D];哈尔滨工程大学;2011年
3 宋晓珂;海上保险代位求偿诉讼法律问题研究[D];大连海事大学;2006年
4 高毓蔚;诉讼中海上保险代位求偿权行使的程序问题研究[D];大连海事大学;2009年
5 魏纪珍;海上保险代位求偿权研究[D];河南大学;2010年
本文编号：2224810
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