论保险人代位求偿权与被保险人求偿权的冲突
发布时间：2019-06-22 17:55
【摘要】：保险代位求偿权制度是民商法代位权制度与保险理赔制度相结合的产物,具有自身独立的法律地位。该制度的宗旨是“贯彻赔偿原则,防止被保险人因双重赔偿而不当得利”。在由第三人造成的保险事故中,保险人按照保险合同支付了保险赔偿金之后,因为存在免赔额、除外责任、部分投保以及不足额保险等情形,被保险人的损失不能得到完全的填补。在此情况下,如果被保险人的损害赔偿请求权和保险人代位求偿权同时向第三人主张,而第三人偿付能力不足,两种权利的冲突即产生。对于如何解决这一冲突,在各国理论和实务中没有统一的处理规则。我国法律对这一问题的处理规则也没有明确具体的规定。这一立法缺失影响到保险人与被保险人利益的平衡。因此,有必要从保险人代位求偿权的理论基础、立法初衷等角度出发,通过探讨保险人代位求偿权与被保险人损害赔偿请求权的冲突问题,最终建议采纳“被保险人优先受偿说”的处理规则。 本文除摘要与引言外共有四部分组成。 第一章为保险人代位求偿权与被保险人损害赔偿请求权的概述,在概述保险人代位求偿权、被保险人损害赔偿请求权的基础上,分析保险人代位求偿权与被保险人损害赔偿请求权的冲突情形,为后面的章节做好铺垫。 第二章为保险人代位求偿权与被保险人损害赔偿请求权冲突处理规则,在认可两种权利可以并存并会产生冲突的前提下,阐述理论和实务中现有的四种处理规则：“被保险人优先受偿说”、“保险人完全受偿说”、“保险人优先受偿说”、“比例分配说”,并结合各规则的适用范围、相关法律、案例等进行细致的分析和讨论。 第三章为保险人代位求偿权与被保险人损害赔偿请求权冲突的理论基础,从英美法系和大陆法系两种法系对保险人代位求偿权的不同制度安排的理论基础分别探讨,得出大陆法系倾向支持“比例分配说”,而英美法系支持“被保险人优先说”的结果。 第四章为保险人代位求偿权与被保险人损害赔偿请求权的冲突处理规则选择,结合保险人代位求偿权制度的核心价值、民法基础理论、保险合同的本质诉求以及保险人与被保险人地位优劣等几个方面的具体分析和讨论,得出建议采纳“被保险人优先受偿说”的结论。
[Abstract]:The system of insurance subrogation is the product of the combination of civil and commercial law subrogation system and insurance claim settlement system, and has its own independent legal status. The purpose of the system is to "implement the principle of compensation and prevent the insured from profiting improperly due to double compensation". In the insurance accident caused by the third party, after the insurer has paid the insurance compensation in accordance with the insurance contract, because of the deductible amount, excluding liability, partial insurance and insufficient insurance, the insured's loss can not be fully filled. In this case, if the insured's claim for damages and the insurer's subrogation claim are claimed to the third party at the same time, and the third party is not solvent enough, the conflict between the two rights will arise. There are no uniform rules for how to solve this conflict in the theory and practice of various countries. There are no clear and specific provisions on the rules of dealing with this problem in the law of our country. The lack of this legislation affects the balance of the interests of the insurer and the insured. Therefore, it is necessary to discuss the conflict between the insurer's subrogation right and the insured's claim for damages from the point of view of the theoretical basis and the original legislative intention of the insurer's subrogation right, and finally suggest to adopt the rules of "the insured's theory of giving priority to compensation". In addition to the summary and introduction, there are four parts in this paper. The first chapter is an overview of the subrogation of the insurer and the claim of damages of the insurant. on the basis of summarizing the subrogation of the insurer and the claim of damages of the insured, this paper analyzes the conflict between the subrogation of the insurer and the claim of damages of the insured, which paves the way for the following chapters. The second chapter is the conflict rules between the insurer's subrogation right and the insured's claim for damages. On the premise of recognizing that the two rights can coexist and there will be conflicts, this chapter expounds the existing four treatment rules in theory and practice: "the insured gives priority to compensation", "the insurer completely receives compensation", "the insurer gives priority to compensation", "proportional distribution theory", and combined with the applicable scope of each rule, the relevant laws, The case is analyzed and discussed in detail. The third chapter is the theoretical basis of the conflict between the insurer's subrogation right and the insured's claim for damages. From the theoretical basis of the different institutional arrangements of the insurer's subrogation right in the common law system and the civil law system, it is concluded that the civil law system tends to support the "proportional distribution theory", while the common law system supports the "insured priority theory". The fourth chapter is the choice of conflict rules between the insurer's subrogation right and the insured's claim for damages, combined with the core value of the insurer's subrogation system, the basic theory of civil law, the essential demand of the insurance contract and the advantages and disadvantages of the insurer and the insured, and draws the conclusion that the "insured should be given priority to receive compensation".
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D912.28
本文编号：2504825
[Abstract]:The system of insurance subrogation is the product of the combination of civil and commercial law subrogation system and insurance claim settlement system, and has its own independent legal status. The purpose of the system is to "implement the principle of compensation and prevent the insured from profiting improperly due to double compensation". In the insurance accident caused by the third party, after the insurer has paid the insurance compensation in accordance with the insurance contract, because of the deductible amount, excluding liability, partial insurance and insufficient insurance, the insured's loss can not be fully filled. In this case, if the insured's claim for damages and the insurer's subrogation claim are claimed to the third party at the same time, and the third party is not solvent enough, the conflict between the two rights will arise. There are no uniform rules for how to solve this conflict in the theory and practice of various countries. There are no clear and specific provisions on the rules of dealing with this problem in the law of our country. The lack of this legislation affects the balance of the interests of the insurer and the insured. Therefore, it is necessary to discuss the conflict between the insurer's subrogation right and the insured's claim for damages from the point of view of the theoretical basis and the original legislative intention of the insurer's subrogation right, and finally suggest to adopt the rules of "the insured's theory of giving priority to compensation". In addition to the summary and introduction, there are four parts in this paper. The first chapter is an overview of the subrogation of the insurer and the claim of damages of the insurant. on the basis of summarizing the subrogation of the insurer and the claim of damages of the insured, this paper analyzes the conflict between the subrogation of the insurer and the claim of damages of the insured, which paves the way for the following chapters. The second chapter is the conflict rules between the insurer's subrogation right and the insured's claim for damages. On the premise of recognizing that the two rights can coexist and there will be conflicts, this chapter expounds the existing four treatment rules in theory and practice: "the insured gives priority to compensation", "the insurer completely receives compensation", "the insurer gives priority to compensation", "proportional distribution theory", and combined with the applicable scope of each rule, the relevant laws, The case is analyzed and discussed in detail. The third chapter is the theoretical basis of the conflict between the insurer's subrogation right and the insured's claim for damages. From the theoretical basis of the different institutional arrangements of the insurer's subrogation right in the common law system and the civil law system, it is concluded that the civil law system tends to support the "proportional distribution theory", while the common law system supports the "insured priority theory". The fourth chapter is the choice of conflict rules between the insurer's subrogation right and the insured's claim for damages, combined with the core value of the insurer's subrogation system, the basic theory of civil law, the essential demand of the insurance contract and the advantages and disadvantages of the insurer and the insured, and draws the conclusion that the "insured should be given priority to receive compensation".
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D912.28
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