论被保险人事先弃权行为的规制

发布时间：2018-07-04 23:17

本文选题：被保险人 + 事先放弃　；参考：《湘潭大学》2017年硕士论文

【摘要】：在保险法中,被保险人的损害赔偿请求权与保险人的代位求偿权是密切相关的两项权利。我国《保险法》第61条规定了保险事故发生后被保险人放弃损害赔偿请求权,保险人不承担保险赔偿责任。然而实践中,被保险人放弃权利不仅仅存在这种情形,其也可能在保险事故发生之前,通过免责约定或其他行为放弃自己以后可能享有的权利。第61条将时间限定在“保险事故发生后”,存在一定的片面性。当时经济生活中也许不存在被保险人事先放弃损害赔偿请求权的情形,因此立法者在订立相关条款时没有考虑被保险人在保险事故发生之前,放弃损害赔偿请求权(下文简称“事先弃权”)的情形。不断进步和改变的经济生活呈现出多样性,因此法律往往需要不断地完善以克服法条本身的滞后性。我国《保险法》对于被保险人事先弃权没有明确的法律条款作为指导,导致出现不同法院对于被保险人事先弃权的案件,尽管案情类似但是判决却是截然不同的情况。作为一种权利的处分行为,只要弃权行为是主体适格的被保险人合法的形式做出的真实意思表示并且不损害国家、集体、社会公共利益和他人合法权益,那么被保险人事先弃权行为便是合法有效的。具体而言,在保险事故发生前,被保险人放弃损害赔偿请求权存在两种情况,即弃权以减少对价和损害赔偿义务人作为投保人的情形。规制事先弃权行为具有必要性与合理性。若被保险人事先弃权,此时保险人的利益该如何保障?针对此问题,学界一直有争议。主要观点具体可以分为三种学说,即保险人期待权利益损害说、被保险人损害防止义务说和违反告知义务或增加危险说。综合考虑被保险人与保险人在具体情况中的权利与义务,宜将“保险人期待权利益损害说”和“违反告知义务或增加危险说”相互取长补短,以保险合同签订时为分界点将事先弃权分为两个时间阶段。在签订保险合同之前,被保险人事先放弃权利适用违反告知义务说,在签订保险合同之后,被保险人事先放弃权利适用保险人期待权利益损害说。在签订保险合同之前,被保险人免责的条件是签订保险合同时投保人未如实告知弃权的事实。在签订保险合同之后,由于被保险人事先弃权损害了保险人的期待权利益,保险人不再赔偿保险金。分析相关法条的不足后,建议完善我国《保险法》第61条的内容。投保人在订立保险合同时必须告知事先放弃损害赔偿请求权的事实。如果投保人已告知,保险人仍与投保人签订合同,保险人必须承担不利后果;否则,保险人免责。签订保险合同之后,被保险人放弃损害赔偿请求权的,保险人不再赔偿保险金。
[Abstract]:In the insurance law, the insurant's right to claim for damages is closely related to the insurer's right of subrogation. Article 61 of China's Insurance Law stipulates that the insured waives the right of claim for damages after the occurrence of an insurance accident, and the insurer does not bear the liability of insurance compensation. In practice, however, there is not only such a situation in which the insured waives his right, but also the right which he may enjoy before the occurrence of the insurance accident through an exemption agreement or other acts. Article 61 limits the time to "after insurance accident", has certain one-sidedness. At that time, there might not have been a situation in economic life in which the insured had waived the right to claim damages in advance, so the legislator did not consider the insured prior to the occurrence of the insurance accident when making the relevant provisions. Waiver of claim for damages (hereinafter referred to as "prior abstention"). Progress and change in economic life show diversity, so the law often needs to be constantly improved to overcome the lag of the law itself. China's Insurance Law does not have a clear legal provision for the insured to abstain in advance, which leads to the emergence of cases in which different courts abstain in advance for the insured. Although the circumstances of the case are similar, the judgment is quite different. As a disciplinary act of right, as long as the act of abstaining is the expression of true meaning made by the subject's legitimate form of the insured and does not harm the national, collective, social and public interests and the legitimate rights and interests of others, So the insurant abstaining in advance is legal and effective. Specifically, before the insurance accident, there are two cases in which the insured waives the right to claim for damages, namely, abstaining in order to reduce consideration and the obligor of damages as the policyholder. It is necessary and reasonable to regulate prior waiver. If insurant abstaining beforehand, how should the interest of underwriter protect at this time? In view of this problem, the academic circle has been controversial. The main point of view can be divided into three kinds of theories, namely, the theory of interest damage of the insurer's right of expectation, the theory of the insurant's duty to prevent damage and the theory of violating the obligation of informing or increasing the risk. Considering comprehensively the rights and obligations of the insured and the insurer in the specific circumstances, it is advisable to complement each other with the "damage to the interests of the insurer's right of expectation" and the "breach of the obligation to inform or increase the risk". When the insurance contract is signed, the waiver is divided into two stages. Prior to the signing of the insurance contract, the insured prior waiver of the right to apply breach of the obligation to inform, after the signing of the insurance contract, the insured prior waiver of the rights applicable to the insurer's right of interest damage. Before signing the insurance contract, the condition of the insured's exemption is the fact that the policyholder did not truthfully inform abstaining when signing the insurance contract. After signing an insurance contract, the insurer no longer indemnifies the insurer for the benefit of the insurer's right of expectation because the insured abstained in advance. After analyzing the deficiency of the relevant articles, the article 61 of our country's Insurance Law should be perfected. The policyholder must inform the fact that the claim for damages is waived in advance when concluding the insurance contract. If the applicant has informed that the insurer still signs a contract with the applicant, the insurer must bear the adverse consequences; otherwise, the insurer is exempt from liability. After signing an insurance contract, the insured waives the right to claim damages, and the insurer no longer indemnifies the premium.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.284

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