On The Direct Claims In Compulsory Traffic Accident Liability Insurance

The direct claim of compulsory traffic accident liability insurance for the third victim (referred to as:the direct claims of compulsory traffic accident liability insurance) is the third victim in traffic accident, as the identity of the third body out of insurance contract, has the direct right to request compensation insurance premiums for the damage in the accident from insurers in accordance with the provisions of traffic compulsory insurance laws and regulations. The direct claim of compulsory traffic accident liability insurance is the core content of the compulsory traffic accident liability insurance system. Only when we give the direct claim to the third victim, can we truly protect the third victim for the legislative purpose. What a pity, in China’s current law "Insurance Law" and "Motor Vehicle Accidents compulsory liability insurance regulations" never introduce the direct claims of compulsory traffic accident liability insurance. Legislative defects lead to the confusion of the judicial practice standards of enforcement, which often results in two or more different verdicts in the same case and seriously damages the judicial authority. Therefore, the systematic study for the direct claim of compulsory traffic accident liability insurance has important theoretical and practical significance. This paper center in the direct claim to pay high insurance and has five chapters followed in such logical idea:the value of rights-the nature of rights-the subject of rights-the right to exercise-the right to relief. What’s more, this paper studies on the related theoretical issues of the direct claim of compulsory traffic accident liability insurance and tries to make recommendations to improve the legislation of the direct claim of compulsory traffic accident liability insurance basing on the legislative experience of the developed countries and regions and the contrast of the theory and practice, legislative and judicial.The chapter one discusses the necessity of the direct claims of compulsory traffic accident liability insurance. Any liability insurance is the insured-centered insurance system, which is adhering to the strict separation principle and the separation of the relationship of liability for damages and liability insurance. However, the direct claim of compulsory traffic accident liability insurance is the third victim-centered insurance system, which is apart from the separation principle. It is a new insurance system which carries the responsibility to protect the interests of the third victim and make the change from theoretical basis to the legislative technique. Various countries and regions have tried kinds of choices, at last they chose to confer the injured third party claims directly. We can acquire from the study of the origination and establishment of the direct claim of compulsory traffic accident liability insurance:the increase of social management functions of liability insurance provides the possibility of the direct request of the insurer for victims; the reasonable correction of contract relativity laid considerable theoretical basis and justified description for the enrich and develop the interests of a third party contract theory and the direct claim of compulsory traffic accident liability insurance. The development and evolution of liability insurance emphasizes the third victim’s interests, reflects people-centered concept and becomes the necessary choice of the foundation of the direct claim of compulsory traffic accident liability insurance. If the third victim couldn’t gain the direct claim of compulsory traffic accident liability insurance, it would be difficult to protect his legitimate interests and increase the cost of insurance claims. At the same time, the claims process maybe longer. So the completion of the direct claim of compulsory traffic accident liability insurance system could also be destroyed. Endowing the direct claims for the claimant to pay compulsory traffic accident liability insurance contributes to the protection of the interests of accident victims and makes full use of its damage timely relief function, which is in line with the basic value of equity, efficiency and safety.The chapter two analyzes the legal nature of the direct claim of compulsory traffic accident liability insurance. There are three kinds of theory about the direct claim of compulsory traffic accident liability insurance:theory of independent nature, theory of right of claim for tort and theory of right of claim for insurance compensation. Seeing that the direct claims of compulsory traffic accident liability insurance for the third party is based on and started from right of claim for tort, and realizes through contract of compulsory insurance for traffic accident of motor-drivenvehicle. So it should be classified as right of claim for insurance compensation. Precondition of the direct claims of compulsory traffic accident liability insurance is liability for damage, and the end of this is the range of liability for damage, it is parasitical. When the direct claims of compulsory traffic accident liability insurance is competing with right of claim for damage compensation, it should be fulfilled firstly. The direct claims of compulsory traffic accident liability insurance is right of claim for insurance compensation, and it should be bound by insurance contract, the insurer should be given the defense right, when it is competing with right of claim for insurance compensation, it should be fulfilled firstly. But when insurant is prior to insurer and fulfill their obligations fully or partly, the insurant still has right of claim for insurance compensation, but the sum of the two should be within the amount of the liability insurance.The chapter three discusses the problem of subject of the direct claims of compulsory traffic accident liability insurance. The subject of the direct claims of compulsory traffic accident liability insurance is the third party victim, third party victim is combination of "victim" and "third party". For now, the compulsory traffic accident liability insurance in our country only covers the people who are not in the vehicle, and do not cover the people who are in the vehicle, which is deviates from our country’s guiding idea of "broad coverage" severely. Drawing on the experience of other extraterritorial legislation, we should include all victim, except the person who is responsible for the accident, into the scope of protection. That is to say, not only protect the direct victim, but also protect indirect victim. The third party victim has rights of claims for insurance compensation, advanced rescue cost and so on against insurer, and in the same time, he has the obligation of informing the occurrence of insured accident, proofing, lightening the damage, accepting compensation and assisting to request for compensation.The chapter four discusses the exercise of the direct claim of compulsory traffic accident liability insurance. The obligee of the direct claim is the insurance company that cover the compulsory traffic accident liability insurance and the insured obligor that is not in accordance with the insurance. Due to the insurance shall be forbidden to repeat cover, the single-car accident compensation obligation subject is specific. However, in the situation of a serial of traffic accidents, to share the damages according to the responsibility might be a reasonable solution. According to the insurance contract agreement the insurer should take the liability insurance compensation to the obligee when the compulsory traffic accident liability insurance was brought for the vehicles that caused the accident. In the situation of the limited dispute of compulsory traffic accident liability insurance in our country, the direct claim should be limited to physical and personal injury, the property loss and moral damage must not be included. The direct claim should be restricted by the compulsory third party liability insurance liability limits (Including the total amount and breakdown limit), the insurer’s right of defense and the prescription of claim. The chapter five discusses the judicial remedies of the compulsory third party liability insurance. The status of each party in the litigation includes:the victim of the third party which is the plaintiff, the infringer (or the insured) which is the defendant and the insurer which is the co-defendant. The doctrines that including named the insurer that separately as a defendant or a third party without independent claim or not a litigant participant or even deem the status of insurer depends on the will of the plaintiff are all lack of partial barge, which are not conducive to efficiency and the interests of the third party. Third party victim has the burden of proof for the occurrence of traffic accident of motor-driven vehicle and he is the victim of it, for that the motor-driven vehicle has insured by compulsory insurance for traffic accident of motor-driven vehicle of certain insurance company, for the loss he suffered from the accident and other matters. Insurer has the burden of proof for victim’s fault or intention. Insurer has the burden of proof for excuse for non-responsibility or reducing the responsibility, for that victim fails to comply the obligation of harm reduction, for exaggerate the loss, and for the loss because of his failure to do his duty on coordination and other matters.When remedying the right of claim for third party victim, traffic accident of motor-driven vehicle give the insurer recourse in order to balance the interests. While in order to protect the interests of the traffic accident victims, the law will force the insurer, who has the right to recourse for responsible party, pay the victim rescue expenses. Now the law of many countries and districts has provision of this recourse. The recourse system of our country is not perfect, and we should develop it on the base of drawing lessons from the developed countries and districts.