论损失补偿原则在人身保险合同中的适用

发布时间：2018-07-31 10:40

【摘要】：现代经济与科学技术的发展是一把双刃剑,使人们的生活更加富裕便捷的同时,也加剧了生活的风险。随着人们对风险认识的逐渐提高,对风险的防范意识也不断增强,越来越多的人选择通过保险来分摊自己随时可能遭受到的损失。人们通过购买保险、缴纳保险费、进而将保险事故发生时受到的损失分散给其他投保人,这样的一种损失分摊、互帮互助的机制来防范风险。现代保险对于控制风险发生、减少风险损失、降低风险管理成本、促进社会稳定发展有着十分重要的意义。损失补偿原则作为保险基本原则之一,是指由投保人向保险人购买具有补偿性质的保险产品,当合同约定的情形发生致使被保险人的财产状况减退时,由保险人负保险责任,给予一定限度内的补偿,使其经济情况恢复到损害发生前的状态。由于财产保险合同的标的具有可补偿性,因此被定性为补偿性保险合同,适用损失补偿原则;但损失补偿原则在人身保险合同中的适用问题,一直是保险理论及实务界的争论热点。由于人身损害的不可计量和不可补偿性,在被保险人的身体受到损害或者生命丧失时,保险人给予的赔偿无法使其身体或者生命恢复原有状态,自然无法补偿其及其家人的这部分损失,从这一角度来说,损失补偿原则确实无法适用。但我们应看到,在人身保险中,有一部分保险合同如:健康保险和意外伤害保险中的医疗费用保险,若保险人以治疗身体机能损失所支出的费用为保障对象,其数额是可以计算的,属于补偿性保险合同的性质,应适用损失补偿原则。最高人民法院于2015年11月发布的《保险法司法解释(三)》,其中第十八条在一定程度上承认了损失补偿原则在补偿性人身保险合同中的适用。本文共分三个部分,第一部分论述损失补偿原则的基本内涵和确立依据;第二部分阐述损失补偿原则与人身保险:人寿保险完全不适用损失补偿原则,健康保险和意外伤害保险部分适用损失补偿原则,即医疗费用保险可以具有补偿性;第三部分说明在补偿性医疗费用保险合同中,适用损失补偿原则对投保人、保险人的要求以及法院在认定适用损失补偿原则时的依据。
[Abstract]:The development of modern economy and science and technology is a double-edged sword, which makes people's life more prosperous and convenient, but also intensifies the risk of life. With the gradual improvement of people's awareness of risk and the awareness of risk prevention, more and more people choose to share the losses they may suffer at any time by means of insurance. People buy insurance, pay insurance premiums, and then spread the losses of insurance accidents to other policy holders, such a loss allocation, mutual help mechanism to guard against risks. Modern insurance plays an important role in controlling risk, reducing risk loss, reducing risk management cost and promoting social development. As one of the basic principles of insurance, the principle of compensation for loss refers to the insurance products with compensatory nature purchased by the policy holder from the insurer. When the situation agreed in the contract causes the property condition of the insured to decline, the insurer shall be liable for insurance. A certain limit of compensation is given to restore its economic situation to the state before the damage occurred. Because the subject matter of the property insurance contract is compensable, it is characterized as a compensatory insurance contract, and the principle of compensation for losses is applied; however, the principle of compensation for loss is applied to the life insurance contract. Insurance theory and practice has always been a hot debate. Because of the non-quantifiable and non-compensatory nature of personal injury, when the insured's body is damaged or his life is lost, the compensation given by the insurer cannot restore his body or life to its original state, Nature cannot compensate him and his family for this loss, and from this point of view, the principle of compensation does not apply. However, we should see that in personal insurance, some insurance contracts such as health insurance and accidental injury insurance cover medical expenses, if the insurer takes the expenses incurred in the treatment of body function loss as the object of protection. Its amount is calculable, belongs to the nature of compensatory insurance contract, should apply the principle of compensation for loss. The Judicial interpretation of Insurance Law (3) issued by the Supreme people's Court in November 2015, Article 18 recognizes to a certain extent the application of the principle of compensation for loss in compensatory life insurance contracts. This paper is divided into three parts: the first part discusses the basic connotation and establishment basis of the principle of compensation for loss, the second part expounds the principle of compensation for loss and the principle of personal insurance: life insurance is not applicable to the principle of compensation for loss. The health insurance and the accidental injury insurance part apply the loss compensation principle, namely the medical expense insurance may have the compensatory nature; the third part explains that in the compensatory medical expenses insurance contract, the application loss compensation principle applies to the policy holder, The requirements of the insurer and the basis of the court's determination that the principle of compensation for loss shall apply.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.284

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