保险代位求偿权的法律问题研究
发布时间：2018-11-09 13:38
【摘要】：保险代位求偿是指保险人向被保险人支付保险赔偿款后，，即可取代被保险人的地位，向对保险事故负有责任的第三人请求赔偿。保险代位求偿是保险基本原则之一的损失补偿原则所派生的一项重要的保险制度。如今已经成为一项国际保险惯例，并在各国的保险法中都占有重要地位。随着我国保险市场的飞速发展，保险代位求偿制度也将逐渐占据不可取代的地位。 但是目前我国在保险代位求偿立法领域的发展还比较滞后，虽然已在《保险法》、《海商法》、《海事诉讼特别程序法》以及若干司法解释中对保险代位求偿权做了规定，但是在实际适用时，却仍然遇到了较大的问题，比如保险代位求偿权是否只能因第三方的主动侵权行为而产生；人身保险合同究竟是否可以适用保险代位求偿权；保险代位求偿权与直接赔偿请求权的矛盾协调问题等。这些争议问题在实务中经常遇到，由于没有明确的法律规定或者司法实践标准，所以就成为了保险代位求偿诉讼中的难题。如果此类难题不能得到及时的解决，必然会造成实务操作和司法审判标准的混乱，不利于保险市场的健康发展。 鉴于此，本文将在研究保险代位求偿权的成立、行使、法律保护等各个方面的同时，针对保险代位求偿权适用中存在的各个争议问题进行重点分析和研究，以期对我国保险代位求偿制度的发展和完善起到促进作用。 本文共分四部分： 第一部分，保险代位求偿制度概述。首先结合各国立法经验，对保险代位求偿的概念进行概括；其次通过对英美法系和大陆法系观点的比较，总结出法定债权转移才是保险代位求偿的基本性质；接着，对保险代位求偿权的作用进行总结；最后，概述国内外保险代位求偿立法现状。 第二部分，保险代位求偿权的成立要件。总结出被保险人对第三人有损失赔偿请求权、保险人已支付理赔款、损失赔偿标的一致性这三项保险代位求偿权的成立要件，并对争议要件进行评述。 第三部分，我国保险代位求偿权的行使。分别从保险代位求偿权的行使名义、行使对象、行使范围、行使方法、诉讼时效等方面对保险代位求偿权的行使问题进行详细研究，集中解决各个环节的争议问题。 第四部分，保险代位求偿权的法律保护与协调。分别从以下四方面来研究：被保险人的协助义务、被保险人弃权行为、被保险人重复受偿、代位求偿权与损失赔偿请求权的协调。
[Abstract]:Insurance subrogation means that after the insurer pays the insurance compensation to the insured, it can replace the status of the insured and claim compensation to the third party who is responsible for the insurance accident. Insurance subrogation is an important insurance system derived from the principle of loss compensation, one of the basic principles of insurance. Nowadays, it has become an international insurance practice and plays an important role in the insurance law of various countries. With the rapid development of China's insurance market, the subrogation system will gradually occupy an irreplaceable position. However, the development of insurance subrogation in our country is still lagging behind, although it has been stipulated in Insurance Law, Maritime Law, Special procedure Law of Maritime Litigation and some judicial interpretations. However, when it is applied in practice, there are still some problems, such as whether the subrogation of insurance can only arise from the active tort of the third party; Whether the life insurance contract can apply the insurance subrogation right or not, the contradiction and coordination between the insurance subrogation right and the direct compensation claim, etc. These disputes are often encountered in practice, because there are no clear legal provisions or judicial practice standards, so it has become a difficult problem in insurance subrogation litigation. If this kind of difficult problem can not be solved in time, it will inevitably lead to confusion of practical operation and judicial standard, which is not conducive to the healthy development of insurance market. In view of this, this paper will study the establishment, exercise, legal protection and other aspects of insurance subrogation, while focusing on the insurance subrogation in the application of the various controversial issues and research. The purpose is to promote the development and perfection of insurance subrogation system in China. This article is divided into four parts: the first part, insurance subrogation system overview. Firstly, the concept of insurance subrogation is summarized by combining the legislative experience of various countries, and then the basic nature of insurance subrogation is summed up through the comparison between Anglo-American and continental law systems, and the conclusion is drawn that the transfer of legal creditor's rights is the basic nature of insurance subrogation. Then, the role of insurance subrogation is summarized. Finally, the domestic and foreign legislation status of insurance subrogation is summarized. The second part, the requirements of the establishment of insurance subrogation. In this paper, the author sums up the three conditions of the insurant's right to claim for compensation for loss against the third party, the insurer has paid the indemnity and the consistency of the standard of loss compensation, and comments on the disputed elements. The third part, our country insurance subrogation right exercise. This paper studies the exercise of insurance subrogation from the aspects of the name, object, scope, method, limitation of action and so on, and focuses on resolving the dispute in every link. The fourth part, the legal protection and coordination of insurance subrogation. Respectively from the following four aspects: the insurant's duty of assistance, the insured's abstaining behavior, the insurant's repeated compensation, the coordination of subrogation and loss claim.
【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：2320563
[Abstract]:Insurance subrogation means that after the insurer pays the insurance compensation to the insured, it can replace the status of the insured and claim compensation to the third party who is responsible for the insurance accident. Insurance subrogation is an important insurance system derived from the principle of loss compensation, one of the basic principles of insurance. Nowadays, it has become an international insurance practice and plays an important role in the insurance law of various countries. With the rapid development of China's insurance market, the subrogation system will gradually occupy an irreplaceable position. However, the development of insurance subrogation in our country is still lagging behind, although it has been stipulated in Insurance Law, Maritime Law, Special procedure Law of Maritime Litigation and some judicial interpretations. However, when it is applied in practice, there are still some problems, such as whether the subrogation of insurance can only arise from the active tort of the third party; Whether the life insurance contract can apply the insurance subrogation right or not, the contradiction and coordination between the insurance subrogation right and the direct compensation claim, etc. These disputes are often encountered in practice, because there are no clear legal provisions or judicial practice standards, so it has become a difficult problem in insurance subrogation litigation. If this kind of difficult problem can not be solved in time, it will inevitably lead to confusion of practical operation and judicial standard, which is not conducive to the healthy development of insurance market. In view of this, this paper will study the establishment, exercise, legal protection and other aspects of insurance subrogation, while focusing on the insurance subrogation in the application of the various controversial issues and research. The purpose is to promote the development and perfection of insurance subrogation system in China. This article is divided into four parts: the first part, insurance subrogation system overview. Firstly, the concept of insurance subrogation is summarized by combining the legislative experience of various countries, and then the basic nature of insurance subrogation is summed up through the comparison between Anglo-American and continental law systems, and the conclusion is drawn that the transfer of legal creditor's rights is the basic nature of insurance subrogation. Then, the role of insurance subrogation is summarized. Finally, the domestic and foreign legislation status of insurance subrogation is summarized. The second part, the requirements of the establishment of insurance subrogation. In this paper, the author sums up the three conditions of the insurant's right to claim for compensation for loss against the third party, the insurer has paid the indemnity and the consistency of the standard of loss compensation, and comments on the disputed elements. The third part, our country insurance subrogation right exercise. This paper studies the exercise of insurance subrogation from the aspects of the name, object, scope, method, limitation of action and so on, and focuses on resolving the dispute in every link. The fourth part, the legal protection and coordination of insurance subrogation. Respectively from the following four aspects: the insurant's duty of assistance, the insured's abstaining behavior, the insurant's repeated compensation, the coordination of subrogation and loss claim.
【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
【参考文献】
相关期刊论文 前2条
1 付国华;张迈;;保险公司行使代位权的条件[J];人民司法;2008年08期
2 王乐宇;;论保险代位求偿权行使的权利限制[J];法学论坛;2007年05期
本文编号：2320563
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