Some Problems On The Right Of Insurance Subrogation

The heading of this thesis is some problems on the right of insurance subrogation, mainly commencing to proceed the overall treatise from the right of insurance subrogation, which is an important system, in order to have the overall cognition to the right of insurance subrogation, obtaining in fulfillment the result of the good operation. At the same time, with the developing constantly of the theory and practice in the insurance law.The right of the insurance subrogation also showing the new variations, which is analysis in thesis, explaining the law making of our country, and put forward corresponding legis suggestion. The thesis is divided into six components totally, following the difference of emphasis points, summarizing as follows now:Part I: The necessity of the right of insurance subrogation.The first problem discusses the rationale of the right of insurance subrogation, the rationale constituted the precondition of the right of insurance subrogation. Firstly, dissertation from its principle of law foundation, pointing out to the right of insurance subrogation to is bring without basis not, it come from the principle of law of the fair justice. And on this basis expounded the stipulates in Anglo - American law, and explained show the clause clearly and the clause of tacit declaration. Secondly, look from the fundamental principle of the insurance law, principle of indemnity is core foundation of the right of insurance subrogation. By analysis of the nature and the contents of principle of indemnity, we come out the principle of indemnity is concerted with the function of the right of insurance subrogation, base on this principle on the insurance law exactly, then can have the right of insurance subrogation . Thirdly, the principle of civil penalty is a foundation of the right of insurance subrogation in tort law.The damage finally must be beared by the person , which has the responsibility untertake is an important principle in tort law. Therefore, basing on this viewpoint, if the third party did not carry on the penalty to it, after the insurance accident occured, wasn't at variance with tolerates the illegal activity. Therefore, the principle of civil penalty to also constitute one of the rationales of the right of insurance subrogation.The second problem discusses the essence of the right of insurance subrogation, and basing on what kind of legislative reason, the right of insurance subrogation is exist. On this iterm, in the theory the views are different.Four kinds of viewpoints are given in the part. Finally come out the right of insurance subrogation is to anticipates the insured ill - gotten gains and that final avoidance third party take off the interaction of responsibility, Only had has given dual attetion to these aspects, could understand the certainty that the subrogation exists of the insurance correctly.The third problem related the new development of the right of insurance subrogation. Along with the insurance business rapid development, the right of insurance subrogation gradually reveals its limitation. Some scholars had already pointed out that the right of insurance subrogation not to be able to fit the society need, it had disobeys social justice and does not have adaption of laws. Therefore the right of insurance subrogation without subsisting of necessary sensus, abolish to the right of insurance subrogation have the rationality. This part embarks from this angle, come out should cancel the legal right of insurance subrogation in legitation of insurance right of subrogation replace stipulate right of subrogation. Part II: It mainly discusses the composing problem of right of insurance subrogation.The composing problem of the right of insurance subrogation is a very important problem.Fistly, it discusses establish time and origin of matter of the right of insurance subrogation.About the time of establishment, the majority of scholars maintain that occure on right of insurance subrogation doesn't establishment of contract, but on the payment of insurance money by the i...