Abstract: This article from the Insurance Subrogation system of legal sources and legislative basics, the first to analyze what is the purpose of the system generated Subrogation, follow the principle of how this system, and then from the fundamental point of departure to explore our present exercise stage of Subrogation system, which put forward several related problems, and these problems were analyzed, finally, to further improve the of Subrogation system, has made some comments.
Keywords: Subrogation; cede power, the principle of the free exercise of recourse against third parties
First, the problem of the proposed
Damage caused by the insured for third party liability claims to insurance companies, insurance companies should be based on who is in the name of the Virulence of the third-party recourse? Insurer after compensation by the insurance company will be the corresponding give up to a third party the right to recover damages, this transfer of rights and the insurer, then the exercise of the right of subrogation does not violate the rights of the free exercise of the principle? Subrogation system of course, so that the insured is not from the insurance profit in the accident, but the insurance companies profit from this? Insurance indemnity to the insured, the insurance company, the recourse to a third party, how to ensure that the insured fully assist its smooth recover it?
Subrogation system of sources of law and the legislative basis for
In accordance with the relevant records, the concept of the right of subrogation is first proposed British judge Lord Hardwic in the Randal prosecution of this case in Coackran At that time, the British Court of subrogation principles apply to all loss compensation contract, while the insurance contract because of the nature of loss compensation, which generally applied the principle of Subrogation.
Let and system of civil law claims in the insurance legal relationship using the right of subrogation, it is essentially a debt body to change the legal basis to follow the principle of compensation for loss of fault liability principle and not really the principle of joint debt. Principle of compensation for loss of refers to when the subject matter insured loss insurance coverage, the insured person has the right to obtain insurance compensation by the contract, used to make up the loss of the insured, the insured can not get additional benefits due to the loss. The principle of compensation for loss of the meaning of two aspects: First, there is the damage compensation, the insured or the insured only in the subject matter insured loss of insurance coverage in order to obtain compensation, otherwise entitled to claim compensation, the second prevent moral hazard, that is, the insured or the insured shall not use the insurance contract requirements improper compensation. fault liability principle, that is, the legitimate interests of the insured damages due to the wrongful acts of a third person and in accordance with the principle of fault liability, this third person ultimately should carry out the appropriate compensation for fault of their own behavior, so not only can the wrongful acts of the third person to carry out the appropriate punishment can also be some compensation to the victim, so that losses can be minimized. The Subrogation system case within the extent permitted by law, the insurance people, the average interest of the insured person and the third person is maximized, without breaking the law does not allow dual claims provisions, and to maintain normal social order development, the results of the mutual balance of trade-offs on the actual behavior and power interests. true principles of the joint debt initially by the German jurist Aida She Leiti out, it's basic theory is built in Germany in the common law period associated debts theory (jointly and severally and simple joint basis, and gradually evolved from a simple joint.
We are talking about is not the real joint debt refers to debt that there is more than one debtor because the debtor is one of the creditors to fulfill obligations which eventually repay the debt. Means that each debtor as a result of the debt relationship accidentally produced the same payment conditions, although they have had to bear with the creditors debt obligations, but if one of them will make all the debtor's debt to exempt debtor fulfill his obligations. This shows that the presence of untrue joint debt on the civil law, must meet five conditions: one is not the real reason why each joint debt debtor debtor has debt is not the same, is due to the different legal conditions arising. untrue joint debt, the debt of the debtor under the conditions of different reasons, so the creditors of each debtor's debts have separate debt claims, rather than a debtor groups Debt rights. Not real link between the joint debt chance exists, each individual debtor independent existence, between them there is nothing inevitable association, there is no common purpose. Means that between debtor. Contact purely accidental. Fourth, each debtor's payment conditions are the same or substantially the same, and each debtor has to pay off all debt obligations, debt compensation, the types of the points and when a bit debtor were paid all the debt, lifting the equivalent of debtor-creditor relationship between the creditor and the debtor, the creditor may not make a claim to the rest of the debtor is based not really the concept of joint debt, the final commitment untrue joint debt obligations will be finally assume the debt obligations of creditors. finally concluded not truly joint debt, the relationship between the debt obligations of the insurer of the insured debt obligations with a third party insurer. untrue joint debt is Subrogation The system's core content.
Third, our subrogation rights exercise
(Insured should the exercise of the right of subrogation to whom the name
China << Insurance Act >> did not insurers whose name should exercise the right of subrogation to make clear rules from the theory, Insurance Subrogation rights statutory compensation given to the insured person is insured or the insured claims, although insurance against the third party compensation claims, but the insurer the right to an independent, the insurer that the exercise of the right of subrogation to the third person can own behalf, without the need to get insured consent of the person or the transfer. seen from the actual insurance subrogation rights by the insured person take the initiative to the claim that the transfer of rights to the insurer, and no longer enjoy the third person; insurer because the transferee on the insured transfer rights of the people, while the actual recourse, so that it can exercise the right of recourse in their own name. Therefore, the insurer may exercise the right of subrogation of the third party in its own name, within the scope of our legal allowed, actually has a separate lawsuit sovereign status.
(Second generation claim the exercise there is no breach of the principle of the free exercise of the right to
Accidents of the subject matter of the insurance of the insured due to the behavior of the third-party insurance, insurance insurance coverage, the insured third party has the right to compensation for loss of insurance payment claims, the insured person has. insurers according to their own wishes to a third party or insurer requests can also request at the same time. The option of the insured, the insured person shall not interfere, the insured shall not be additional compensation, which is contrary to the basic principles of Subrogation system. Request the insurer to pay the insurance compensation for the insured after the insurer Payout can be exercised for third-party the Subrogation obligations. In this case, the insured can not be made to a third party payment to any compensation insurance from the insurer within the amount of the loss even if the proposed request, the damages should the final analysis, all of the insurer.
The exercise of other rights of the insurer is not subject to the insurer the right of subrogation to the provisions of Article 45, paragraph 3. >> << Insurance Law in China, the insured amount of compensation is insufficient to cover the losses of the insured insured person can still make a claim to a third party it did not make up for the losses after the rights of the insured when the third person's property can not be at the same time to the insured and the insurer of the debts of the insurance money should first meet so that it suffered loss can be fully compensated only when the insured person to obtain the full amount of compensation, the identity of the insurance company to the insured exercise of the right of subrogation against the third party, and then to make up for their losses in order to maintain the insured maximize the benefits, the rights of the insured shall maintain first place in the insured person's rights and interests are fully met, and then consider the insurer's Subrogation interests.
(C insurers are profiting from
Insurance to obtain a right of subrogation in insurance money paid to the insured, so that the insurer will profit from it? Furthermore, really the profit, the insurer will be due to the presence of Subrogation system and reduce the premium rate it? Theoretical perspective, the insurer is likely to exercise subrogation rights and thus lower insurance premiums rate, but the majority of our insurance is a commercial insurance, so that even in this regard to reduce the amount of the debts of the insurance, the insurance business nature of these compensation will increase shareholder dividends from reality, China some insurance coverage in the compensation of the right of subrogation share with policyholders pay insurance costs are small compared to other words, is on behalf of the claim made for compensation accounted for the proportion of total compensation insurer very low the of Subrogation system premium rate is very small. means that, if the insurance regulators of subrogation of the supervision and management of the system to relax, not to develop appropriate laws and regulations, the insurer seeking subrogation subordinated principle to reduce the premium rate is what might happen.Links to free papers Download Center http://eng.hi138.com
(Whether the four Subrogation principle is to avoid third party to escape liability
Based on the analysis of the front right of subrogation, subrogation principle really enables the third party to bear corresponding civil liability, so whether it is conducive to social equity? At this point is more subjective, based primarily on grounds the following two points: First, the the insurance person carrying insurance loss insurance compensation, usually require the insured to legal claims on the first to third person responsible party, unless the third party is hit and run, or can not afford to compensate, otherwise insurance not be insured Payout If the insured to the third party civil liability claims smoothly, naturally avoided a third party at large, without the intervention of Subrogation if the third party is hit and run by the Public Security organs filed, will be brought to justice. If it is a third party with limited financial resources the Court first part of the compensation will be according to their economic capacity, but the debt is still there. From this perspective, the right of subrogation to avoid third party to obtain additional benefits and no play can not be the role instead. the insurer and collects insurance costs, the powerful insurance fund to strengthen the ability of the insurance money Payout. compared with the insured, the insurer's financial strength is relatively strong, despite the insurer has a right of subrogation Despite the huge cost of litigation, but for the insured, the insurer does not have greater enthusiasm to pursue third-party liability at any time.
Fourth, personal thoughts
First, Subrogation initial purpose of the system is to prevent the insured to obtain additional benefits, to ensure that the insurer and the insured person's legal rights, and play its function to protect the interests of policyholders and the insured to the insurance, maintenance social stability, but because the Subrogation theoretical basis and practical application of the system, there are some problems, which makes it not fully reflect the principle of fairness in our society. The principle of subrogation claims to maximize >> << Insurance Act on the basis of the interests of the insured should be clear. In other words, the insurer in the future develop special insurance rates determined, the insurer may be because the subrogation demand compensation and compensation conditions one of the important basis for the determination of premium rates, the insurance have a right of subrogation obligations.
Second, the insurer and the insured subrogation claims transformation of the concept of principles, which makes the insured and the insurer has more freedom of choice. Entails the law Who made the subrogation rights and requirements do not do too much, but the more general provisions of that is, after the occurrence of the insured event, the insurer is not directly obtain the right of subrogation, but by the insurer and the insured in the insurance contract entered into or insurance after the accident, making insurance claims, agreed to the insurer to obtain the right of subrogation. manner in which such legislation concept good insurer and the insured relationship is defined as the parties entered into a contractual relationship, given both sides free consultation rights, thus contributing to the insurer to the exercise of the right of subrogation, the insurer better fulfill the obligation to assist, the full realization of the right to subrogation role.
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