海上保险代位求偿权若干法律及实务问题探讨
发布时间：2018-09-09 19:50
【摘要】：代位求偿权始终是海上保险理论中的热点问题之一。关于代位求偿权的理论解释、行使方式、权益转让书、诉讼时效、行使金额限制等问题,理论界一直存在争议;从实践的角度讲,由于这些年保险市场的竞争加剧,海上保险人也日益重视通过行使代位求偿权减少保险偿付带来的经济损失,相应地代位求偿诉讼也逐渐增多。 我国目前规定海上保险代位求偿权的法律包括《海商法》、《保险法》和《海事诉讼特别程序法》,总体来说,我国现行法律对此问题的规定过于简单,有些规定还存在明显的冲突和错误,导致各地法院作出了一些相互矛盾的判决。因此,本文试图对海上保险代位求偿权进行比较全面的研究,希望能借此澄清一些错误的认识,为海上保险人正确行使代位求偿权和法院的审判活动提供一些有益的帮助。 本文共分三个部分,体系安排如下:第一部分是保险代位求偿权的法律基础:广义及狭义的代位求偿权、法律渊源、理论基础及立法目的;第二部分主要研究了海上保险代位求偿权的权利主体、法律关系、及其行使;第三部分是文章的重点部分,主要研究了在海上保险代位求偿实践活动中常遇到的几个颇有争议的法律问题,如“权益转让书”的性质及作用、被保险人放弃对第三人的债权对保险代位求偿权的影响、海上保险代位求偿权的诉讼时效、海上保险代位求偿权中求偿金额的限制及追偿款项的分配、再保险人的代位求偿权等。
[Abstract]:Subrogation has always been one of the hot issues in marine insurance theory. The theoretical interpretation of subrogation, the way of exercising it, the transfer of rights and interests, the limitation of action, the limitation of the amount of money, and so on, have always been controversial in the theoretical circle; from a practical point of view, the competition in the insurance market has intensified in these years. Marine insurers also pay more and more attention to reducing the economic loss caused by insurance payment through the exercise of subrogation, and the corresponding subrogation litigation is also gradually increasing. At present, the law of subrogation of marine insurance in our country includes Maritime Law, Insurance Law and Special procedure Law of Maritime Litigation. Generally speaking, the current law of our country is too simple to regulate this problem. There are also apparent conflicts and errors in some provisions, leading to conflicting judgments by local courts. Therefore, this paper attempts to study the subrogation of marine insurance in a more comprehensive way, hoping to clarify some misunderstandings and provide some useful help for marine insurers to correctly exercise their subrogation and the court's trial activities. This paper is divided into three parts: the first part is the legal basis of insurance subrogation: broad and narrow subrogation, legal origin, theoretical basis and legislative purpose; The second part mainly studies the subject of right, the legal relation and the exercise of the subrogation of marine insurance; the third part is the key part of the article. This paper mainly studies several controversial legal problems often encountered in the practice of subrogation in marine insurance, such as the nature and function of the transfer of rights and interests, the influence of the insurant's abandonment of the creditor's rights to the third party on the insurance subrogation. Limitation of action of subrogation of marine insurance, limitation of claim amount in subrogation of marine insurance and distribution of recovery money, subrogation right of reinsurer and so on.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.284;D922.294
本文编号：2233403
[Abstract]:Subrogation has always been one of the hot issues in marine insurance theory. The theoretical interpretation of subrogation, the way of exercising it, the transfer of rights and interests, the limitation of action, the limitation of the amount of money, and so on, have always been controversial in the theoretical circle; from a practical point of view, the competition in the insurance market has intensified in these years. Marine insurers also pay more and more attention to reducing the economic loss caused by insurance payment through the exercise of subrogation, and the corresponding subrogation litigation is also gradually increasing. At present, the law of subrogation of marine insurance in our country includes Maritime Law, Insurance Law and Special procedure Law of Maritime Litigation. Generally speaking, the current law of our country is too simple to regulate this problem. There are also apparent conflicts and errors in some provisions, leading to conflicting judgments by local courts. Therefore, this paper attempts to study the subrogation of marine insurance in a more comprehensive way, hoping to clarify some misunderstandings and provide some useful help for marine insurers to correctly exercise their subrogation and the court's trial activities. This paper is divided into three parts: the first part is the legal basis of insurance subrogation: broad and narrow subrogation, legal origin, theoretical basis and legislative purpose; The second part mainly studies the subject of right, the legal relation and the exercise of the subrogation of marine insurance; the third part is the key part of the article. This paper mainly studies several controversial legal problems often encountered in the practice of subrogation in marine insurance, such as the nature and function of the transfer of rights and interests, the influence of the insurant's abandonment of the creditor's rights to the third party on the insurance subrogation. Limitation of action of subrogation of marine insurance, limitation of claim amount in subrogation of marine insurance and distribution of recovery money, subrogation right of reinsurer and so on.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D922.284;D922.294
【引证文献】
相关期刊论文 前1条
1 仪喜峰;林璐瑶;;论海上保险代位求偿权[J];上海海事大学学报;2012年03期
相关硕士学位论文 前3条
1 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
2 高莉丽;无船承运人责任制度研究[D];中国政法大学;2007年
3 马静;保险代位求偿诉讼若干问题研究[D];西南政法大学;2010年
，本文编号：2233403
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