海上保险代位求偿权诉讼若干法律问题探析
发布时间：2018-11-06 16:32
【摘要】：海上保险代位求偿权作为一项古老的制度，在各国保险法中都有规定，我国也不例外。在现实生活中，海上保险代位求偿权发挥了重要的作用。法律及司法解释也对此作出了很多规定，，使得许多争议得到了解决，但仍存在许多法律上的空白。司法实践中对很多规定理解也不一致，导致许多相同的争议在海上保险保险代位求偿权诉讼中一再出现。 最高人民法院出台《保险法司法解释（二）》中对保险代位求偿权诉讼时效起算作出了明确的规定，但是该规定与法理存在矛盾，且也给在实践运用中带来麻烦。 鉴于以上事实，本文对海上保险代位求偿权在诉讼中遇到的问题展开讨论并提出自己的观点及立法建议。 本文正文除了导言和结束语外，共分为分为三章： 第一章主要阐述海上保险代位求偿权理论中一些基本问题。通过对海上保险代位求偿权含义、法律基础、取得和作用的概况介绍，使得读者初步了解海上保险代位求偿权的基础性内容。 第二章主要对目前海上保险代位求偿权在诉讼中普遍的争议性问题作出分析。从法律和实证两个方面分析了海上保险代位求偿权诉讼中的当事人适格性认定、诉讼请求的范围、被保险人与第三者协议管辖对保险人的适用性，评析了最高人民法院《保险法司法解释（二）》关于保险代位求偿权诉讼时效起算的规定，阐释了实务中出现的两种常见情况下第三者抗辩事宜。 第三章提出立法建议。在前两章研究的基础上，结合我国修订《海商法》的契机，给出立法建议。
[Abstract]:As an ancient system, the subrogation of marine insurance is stipulated in the insurance laws of all countries, and our country is no exception. In real life, marine insurance subrogation plays an important role. The law and judicial interpretation have also made a lot of provisions, so that a lot of disputes have been resolved, but there are still many gaps in the law. In judicial practice, there are different understandings of many regulations, which leads to many similar disputes appearing repeatedly in subrogation litigation of marine insurance. The Supreme people's Court issued the Judicial interpretation of Insurance Law (2), which has made a clear stipulation on the limitation of action of insurance subrogation, but this stipulation contradicts legal theory and brings trouble in practice. In view of the above facts, this paper discusses the problems encountered in the litigation of marine insurance subrogation and puts forward its own viewpoints and legislative suggestions. In addition to the introduction and concluding remarks, the text of this paper is divided into three chapters: the first chapter mainly expounds some basic problems in the theory of marine insurance subrogation. Through the introduction of the meaning, legal basis, acquisition and function of marine insurance subrogation, the reader can understand the basic content of marine insurance subrogation. The second chapter mainly analyzes the controversial issues of marine insurance subrogation in litigation. This paper analyzes the suitability of the parties in the subrogation litigation of marine insurance, the scope of the litigation request, the applicability of the insured and the third party agreement jurisdiction to the insurer, from the legal and empirical aspects. This paper comments on the provisions of the Supreme people's Court on the Judicial interpretation of Insurance Law (2) concerning the limitation of action for insurance subrogation, and explains the issues of third party defences in two common situations in practice. The third chapter puts forward legislative suggestions. On the basis of the first two chapters, combined with the opportunity of revising Maritime Law, the legislative suggestions are put forward.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.284
本文编号：2314838
[Abstract]:As an ancient system, the subrogation of marine insurance is stipulated in the insurance laws of all countries, and our country is no exception. In real life, marine insurance subrogation plays an important role. The law and judicial interpretation have also made a lot of provisions, so that a lot of disputes have been resolved, but there are still many gaps in the law. In judicial practice, there are different understandings of many regulations, which leads to many similar disputes appearing repeatedly in subrogation litigation of marine insurance. The Supreme people's Court issued the Judicial interpretation of Insurance Law (2), which has made a clear stipulation on the limitation of action of insurance subrogation, but this stipulation contradicts legal theory and brings trouble in practice. In view of the above facts, this paper discusses the problems encountered in the litigation of marine insurance subrogation and puts forward its own viewpoints and legislative suggestions. In addition to the introduction and concluding remarks, the text of this paper is divided into three chapters: the first chapter mainly expounds some basic problems in the theory of marine insurance subrogation. Through the introduction of the meaning, legal basis, acquisition and function of marine insurance subrogation, the reader can understand the basic content of marine insurance subrogation. The second chapter mainly analyzes the controversial issues of marine insurance subrogation in litigation. This paper analyzes the suitability of the parties in the subrogation litigation of marine insurance, the scope of the litigation request, the applicability of the insured and the third party agreement jurisdiction to the insurer, from the legal and empirical aspects. This paper comments on the provisions of the Supreme people's Court on the Judicial interpretation of Insurance Law (2) concerning the limitation of action for insurance subrogation, and explains the issues of third party defences in two common situations in practice. The third chapter puts forward legislative suggestions. On the basis of the first two chapters, combined with the opportunity of revising Maritime Law, the legislative suggestions are put forward.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.284
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