The Research On The Positioning And Reconstruction Of China Liability Insurance In Risk Society

From the institutionalism perspective, the true meaning of risksociety theory is to examine the countermeasures of the society againstrisk prevention and damage compensation by describing and classifyingnew risks. Under the circumstance of damage compensation’ssocialization, it is common to see simple systems with the purpose ofdamage compensation, but hardly can find a system with both riskprevention and damage compensation functionalities at the same time.However, the unique premium floating system and franchise clause ofliability insurance properly stimulate the insured to take reasonable careof the object of insurance, and execute the risk prevention function ofliability insurance in the form of sharing risks with insured. Furthermore,liability insurance also can share the risks once again by reinsurance.Thus, it is required to emphasize the importance of liability insurance inthe damage compensation system to better utilize its risk preventionfunctionality and to deal with risk society.Currently, the damage compensation system of China consists of tortliability, liability insurance and social assistance. The infringer is alreadyoverburdened as the doctrine of liability fixation and litigation formbecome more and more strict. The victim is not able to obtain hiscompensation in some cases due to the limit of the infringer’s financialresources. The damage compensation from social assistance only coversthe basic life requirement of the victim, which is not applicable to generaldamage compensation for infringement. Based on the advantage ofliability insurance in risk management, it should be implemented into the damage compensation system and become the prime tool in riskmanagement and damage compensation as a “pressure reducer” of tortliability and social assistance. Accordingly, an olive-shaped damagecompensation model which consists of tort liability, liability insuranceand social assistance emerges as the times require.In terms of the development of China liability insurance, it can beimproved from macro and micro aspects. In macro aspect, China liabilityinsurance should practice a joint legislative mode by breaking theclassification of commercial insurance and compulsory insurance, andpioneers to implement compulsory liability insurance in public liability,product liability, fire liability, medical liability, and environmentalliability, which were vital to the people’s livelihood, public security, foodsecurity, medical security, employment security, and living environment.The execution mode of compulsory insurance only requires compulsorypurchase of the minimum amount of insurance. The government neitherenacted the clause of insurance contract separately for compulsoryinsurance, nor restricted legal rate. The market dealt with all the insurancecontracting activities while the government only conducted its regulationresponsibility.In micro aspect, the relativity of liability insurance contract makes abreakthrough under the social circumstance with the development ofprotecting victim’s benefits. To be able to make better use of liabilityinsurance protection, harsh on the duty of defense to the insurer, andbuild the system of the third party’s right of direct claim, which are themain direction of development of china liability insurance in micro aspect.And there would be great improvement opportunities for both of thesystems with China insurance law. Meanwhile, there was still lack oflegislation about how to distribute the compensation liability whenmultiple insurance contracts existing at the same time. It was propitiousto resolve this practice issue by establishing the other insurance system.