責任保險中保險人的參與權(quán)研究
發(fā)布時間：2019-01-06 19:35
【摘要】：我國臺灣地區(qū)“保險法”第93條規(guī)定：“保險人得約定被保險人對于第三人就其責任所為之承認、和解或賠償，未經(jīng)其參與者，不受拘束。但經(jīng)要保人或被保險人通知保險人參與而無正當理由拒絕或借故遲延者，不在此限”。該條款規(guī)定了責任保險中保險人的參與權(quán)，因而在臺灣地區(qū)保險實務(wù)中，責任保險人行使參與權(quán)有法可依，能夠更好地維持保險人、被保險人以及受害第三者三者之間的利益平衡，從而更好地促進保險事業(yè)的發(fā)展。目前我國《保險法》沒有參與權(quán)的規(guī)定，責任保險人參與權(quán)只約定在相關(guān)保險公司的責任保險條款之中。 本文主要采用比較研究及價值分析等研究方法。第一部分主要闡明了責任保險人參與權(quán)的概念、性質(zhì)以及功能。責任保險是指被保險人依法應(yīng)向受害第三者負賠償責任時，經(jīng)受害第三者請求，保險人依照保險合同向受害第三者承擔賠償責任的保險。對于參與權(quán)的性質(zhì)，學界有兩種觀點，一種認為參與權(quán)是保險人的權(quán)利，另一種認為參與權(quán)是保險人必須履行的義務(wù)。本文對這兩種觀點進行了深入分析，通過上述內(nèi)容的分析，使我們更加深入地了解了責任保險人參與權(quán)的內(nèi)涵。 第二部分分析了責任保險人參與權(quán)的行使問題，主要包括保險人行使參與權(quán)的理論前提與后果承擔、未行使參與權(quán)的后果承擔、行使參與權(quán)的注意義務(wù)以及參與權(quán)行使不當造成的損害賠償責任。我國《保險法》規(guī)定保險人于受害第三者請求損害賠償時，尚未產(chǎn)生保險責任，只有等到被保險人已對受害第三者履行其賠償責任時，保險責任才算產(chǎn)生。我們認為，被保險人確實因過失行為致使受害第三者遭受損失，同時，受害第三者向被保險人行使損害賠償請求權(quán)，當兩個條件同時符合時，保險責任才算真正產(chǎn)生，保險人才可以行使參與權(quán)。保險人參與權(quán)的行使分為參與和不參與，而其中參與也包括兩種，即行使參與權(quán)并同意和解或賠償協(xié)議與行使參與權(quán)但不同意和解或賠償協(xié)議。未行使參與權(quán)同樣包括兩類，分為被通知而未參與以及未被通知而未參與。通過對以上幾種情形的分析，使我們能夠更加理解責任保險人參與權(quán)的行使過程以及相關(guān)注意問題。既然責任保險人積極行使參與權(quán)，，那么，必然會有參與權(quán)行使不當以及造成損害賠償責任發(fā)生的可能性，此時該如何處置呢？所以，本文也詳細論述了責任保險人在行使參與權(quán)過程中的注意義務(wù)與參與權(quán)行使不當而應(yīng)當承擔的損害賠償責任。 第三部分主要分析了責任保險人參與權(quán)在我國《保險法》上的完善建議，希望本文能對我國保險立法的完善與保險實務(wù)的發(fā)展有所幫助。相關(guān)建議如下：一，新增責任保險人享有參與權(quán)的規(guī)定；二，確立被保險人的及時通知義務(wù)；三，新增關(guān)于責任保險人行使參與權(quán)的例外規(guī)定；四，新增關(guān)于責任保險人行使參與權(quán)時持反對意見時的規(guī)定。
[Abstract]:Article 93 of "Insurance Law" of Taiwan region of China stipulates: "the insurer may agree that the insured shall not be bound to acknowledge, reconcile or compensate for the liability of the third party without its participants." Unless the applicant or the insured notifies the insurer of its participation and refuses or delays without reasonable reason. " This clause stipulates the participation right of the insurer in the liability insurance, so in the insurance practice in Taiwan, the liability insurer exercises the right to participate in accordance with the law and can better maintain the insurer. The balance of interests between insured and third-party victims, thus promoting the development of insurance business. At present, there is no right to participate in the Insurance Law of our country, and the participation right of the liability insurer is only stipulated in the liability insurance clause of the relevant insurance company. This article mainly adopts the comparative research and the value analysis and so on research method. The first part mainly expounds the concept, nature and function of the participation right of the liability insurer. Liability insurance is the insurance that the insured should bear the compensation liability to the injured third party according to the insurance contract when the insured should bear the compensation liability to the injured third party according to the insurance contract. There are two views on the nature of the right of participation, one is that the right of participation is the right of the insurer, the other is that the right of participation is the obligation that the insurer must perform. Through the above analysis, we can get a deeper understanding of the connotation of the participation right of the liability insurer. The second part analyzes the exercise of the participation right of the liability insurer, mainly including the theoretical premise and consequences of the insurer to exercise the participation right, and the consequences of the non-exercise of the participation right. The duty of care to exercise the right of participation and the liability for damages caused by improper exercise of the right of participation. The Insurance Law of our country stipulates that the insurer does not have the insurance liability when the injured third party claims for damages, but only when the insured has fulfilled its liability to the injured third party, can the insurance liability be counted as coming into being. In our opinion, the insured does suffer losses to the third party as a result of negligent conduct. At the same time, the injured third party exercises the right to claim damages against the insured. When the two conditions are met simultaneously, the liability of insurance is considered to be truly incurred. Insurance talent can exercise the right to participate. The exercise of the insurer's right to participate can be divided into participation and non-participation, in which participation also includes two types, namely, exercising the right to participate and agreeing to an agreement of reconciliation or compensation, and exercising the right of participation, but not agreeing to an agreement of settlement or compensation. The right not to exercise participation also includes two categories, being notified and not participating and not being notified and not participating. Through the analysis of the above situations, we can understand the exercise process of the participation right of the liability insurer and the relevant problems. Since the liability insurer actively exercises the right of participation, there must be improper exercise of the right of participation and the possibility of the occurrence of liability for damages. How to deal with it at this time? Therefore, this paper also discusses the liability insurer in the process of exercising the right to participate in the exercise of the duty of care and the exercise of the right to participate in the improper exercise of damage liability. The third part mainly analyzes the suggestion of the participation right of the liability insurer in the Insurance Law of our country, and hopes that this article can be helpful to the improvement of the insurance legislation and the development of the insurance practice in our country. The related suggestions are as follows: first, the new liability insurer has the right to participate; second, establish the timely notification obligation of the insured; third, add the exception about the liability insurer to exercise the participation right; Fourth, the new provisions on the liability insurer to exercise the right to participate in opposition.
【學位授予單位】：吉林大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D922.284
本文編號：2403237
[Abstract]:Article 93 of "Insurance Law" of Taiwan region of China stipulates: "the insurer may agree that the insured shall not be bound to acknowledge, reconcile or compensate for the liability of the third party without its participants." Unless the applicant or the insured notifies the insurer of its participation and refuses or delays without reasonable reason. " This clause stipulates the participation right of the insurer in the liability insurance, so in the insurance practice in Taiwan, the liability insurer exercises the right to participate in accordance with the law and can better maintain the insurer. The balance of interests between insured and third-party victims, thus promoting the development of insurance business. At present, there is no right to participate in the Insurance Law of our country, and the participation right of the liability insurer is only stipulated in the liability insurance clause of the relevant insurance company. This article mainly adopts the comparative research and the value analysis and so on research method. The first part mainly expounds the concept, nature and function of the participation right of the liability insurer. Liability insurance is the insurance that the insured should bear the compensation liability to the injured third party according to the insurance contract when the insured should bear the compensation liability to the injured third party according to the insurance contract. There are two views on the nature of the right of participation, one is that the right of participation is the right of the insurer, the other is that the right of participation is the obligation that the insurer must perform. Through the above analysis, we can get a deeper understanding of the connotation of the participation right of the liability insurer. The second part analyzes the exercise of the participation right of the liability insurer, mainly including the theoretical premise and consequences of the insurer to exercise the participation right, and the consequences of the non-exercise of the participation right. The duty of care to exercise the right of participation and the liability for damages caused by improper exercise of the right of participation. The Insurance Law of our country stipulates that the insurer does not have the insurance liability when the injured third party claims for damages, but only when the insured has fulfilled its liability to the injured third party, can the insurance liability be counted as coming into being. In our opinion, the insured does suffer losses to the third party as a result of negligent conduct. At the same time, the injured third party exercises the right to claim damages against the insured. When the two conditions are met simultaneously, the liability of insurance is considered to be truly incurred. Insurance talent can exercise the right to participate. The exercise of the insurer's right to participate can be divided into participation and non-participation, in which participation also includes two types, namely, exercising the right to participate and agreeing to an agreement of reconciliation or compensation, and exercising the right of participation, but not agreeing to an agreement of settlement or compensation. The right not to exercise participation also includes two categories, being notified and not participating and not being notified and not participating. Through the analysis of the above situations, we can understand the exercise process of the participation right of the liability insurer and the relevant problems. Since the liability insurer actively exercises the right of participation, there must be improper exercise of the right of participation and the possibility of the occurrence of liability for damages. How to deal with it at this time? Therefore, this paper also discusses the liability insurer in the process of exercising the right to participate in the exercise of the duty of care and the exercise of the right to participate in the improper exercise of damage liability. The third part mainly analyzes the suggestion of the participation right of the liability insurer in the Insurance Law of our country, and hopes that this article can be helpful to the improvement of the insurance legislation and the development of the insurance practice in our country. The related suggestions are as follows: first, the new liability insurer has the right to participate; second, establish the timely notification obligation of the insured; third, add the exception about the liability insurer to exercise the participation right; Fourth, the new provisions on the liability insurer to exercise the right to participate in opposition.
【學位授予單位】：吉林大學
【學位級別】：碩士
【學位授予年份】：2015
【分類號】：D922.284
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