Research On The Right Of Insurance Subrogation

The right of insurance subrogation has already been a hot issue on the theory of insurance law. Scholars hold disputes on the theoretical foundation, legal nature, scope of application, conditions for exercising of it and its legal protection. With the development of the insurance industry, the insurance company may gradually emphasize the exercising of the right of insurance subrogation. However, the complementary legal system on it is not perfect. The regulations on the insurance law and the maritime law are too simple which can't cover most of the practical problems. Although some of them have been stipulated, they still need to be supplemented. In this thesis, the author intends to investigate the basic theory on The right of insurance subrogation and detailedly discuss the conditions and limitations for its application. Also in the thesis, the measure for the protection of the right has been carefully designed.The thesis can be divided into four parts. In the first part, it studies on the basic theory on the right of insurance subrogation; the history, concept, nature of the right and oppugning on traditional theory. In the second part, it engages on the fundamental theory on the exercising of the right, such as the conditions and limitations on its application. In the third part, it expatiates the common problems and special problems while exercising the right by the insurer, including the method to obtain the right, the problem on the name for exercising, the exercising of the right by double insurer, reinsurer, the right of pleadings of the third person, the validity of the liquidation by the third person, the abandonment of the right by the insurer and prescription of the right, etc. Finally, it involves on how the obligors (the insured and applicant for insurance) perform the obligation of assisting and the effect on exercising the right when the insured abandons the right to claim indemnity.In the first part, it studies on the basic theory on the right of insurance subrogation. Firstly, it briefly introduces the development of the right from the time when it originated from Insurance law legal practice to the time when the system of insurance subrogation is commonly established in insurance law of most countries. Then it defines the right that the right of insurance subrogation means in insurance against damage, if the indemnity of insurance accident shall be burdened by the third person, the insurer therefore replaces the insured to exercise the right in the scope of compensation from the day for compensation. Following the comparison between the right of insurance subrogation and subrogation of right of debt, through it, the author points out the differences on their function. The function of the right of insurance subrogation is to balance the interest of insurer, the insured and the third person, conciliate the legal conflict between insurance system and system on liability for tort and breaching. Next to analyze the legal nature and essence of right of insurance subrogation. It thinks the nature of it is a special system on the transfer of the right of debt in order to maintain the principle of damage compensation, avoid the third person to exempt the responsibility and amalgamate the theory ofvunjustified enrichment and social equity. At last, parts of scholars detailedly address themselves to oppugning the traditional theory on the right of insurance subrogation. In this part, the author retails the scholars' oppugning the traditional theory on the right of insurance subrogation, that includes the review on the principle of damages and maintaining the responsibility of the third person, as well as the oppugning on the reducing of the insurance rate. Followed by the comment on the existence and abolishment of the traditional right of insurance subrogation, the thesis addresses that even if the system of insurance subrogation is abolished by negligence, it is serious enough to impinge the system of tort liability in tort law or Contract law. Since the right of insurance subrogation depends o...