Discussion Of The Inferior Status And System Arrangement Of The Exercise Of The Right Of Subrogation In Underinsurance

The right of subrogation is the combination of Subrogation system and insurance claims system, which has its own independent legal status and aims to provide double protection to insurant to ensure that the loss of the insurant can be fully compensated. So In case of full insurance, when the agreed accident occurred, whose damage was due to the behavior of the third person, the insurer can sue the claim of the right of subrogation to the third person on the amount which he paid to the insurant with no obstacle after he paid the full compensation to the insurant according to the insurance contract. But if the third person can't afford the right of subrogation of insurer and the right to request compensation of insurant, the insurant's damages claim should be given the priority to be exercised. However, the fields of legislation, theory and practice all have vague understanding, and provisions of insurance contracts are not coordinated, which endanger the interest of the insurant. Therefore, it is necessary to establish legal joint credit on the principle of priority to insurant to demonstrate the intention of insurance law, with the supplement of necessary joinder by analyzing the conflict in the implementation of the right of subrogation in underinsurance from the nature and the legislative mind of the right of subrogation. The first chapter analyzes the legal background and characteristics of the right of subrogation. Giving a brief introduction of the right of subrogation from perspectives of both insurance law and international comparison, including legislative original intention and the acquisition mode of the right of subrogation. Chapter two describes the conflicts on the exercise of the right of subrogation in underinsurance. This chapter elaborates the right of subrogation on aspects of theory and practice, besides, the perplexity and the present situation of the exercise of the right of subrogation in underinsurance as well as solutions on this problem also be mentioned.Chapter three aims to explain the reason of the inferior status of the exercise of the right of subrogation in underinsurance, in other words, the core of this chapter is the principle of the priority of the insurant. There are two doctrines in the world on the matter of the exercise of the right of subrogation in underinsurance, the author refute the"relative theory"and give legal analysis of the rationality of the priority of the insurant.Chapter four describe the program dependence of the exercise of the right of subrogation in underinsurance, which intent to establish the system of legal joint credit and necessary joint action to solve the problem. This chapter firstly analyzes the procedural puzzles in resolving the current claim conflict in practical operation, introducing the resolution on this issue according to"Maritime Procedure Law". Furthermore, legal joint credit and necessary joint action between the insurant and insurer are suggested to be introduced to solve the thorny problem.