The Conflict And Coordination Between Compensation For Damage And Insurance Claim

Along with the progress of human society and the development of economy, various kinds of accidents were increasing constantly, liability for tort has been gone through one to revenge from homomorphism to the responsibility principle of the fault, evolution without responsibility principle of fault too by the responsibility principle, demonstrate one and belong to the responsibility principle from single fault responsibility the trend of belonging to the responsibility principle gradual progress in pluralism. But the doctrine of liability fixation can not make the victim's lawful rights and interests receive maximum protection liability, because they are just one kind of compensate in the system in pluralism. Therefore, the insurance claim presented under the specific historical condition. Its appearance has exerted a far-reaching influence to the system of compensation for damage. The insurance is divided into commercial insurance and social insurance, because they are in the different law fields and their style are not the same, it is inconvenient to probe them together, so this article just discuss about the commercial insurance on the base of the insurance law in our country.This article plan to concentrate on the conflicts of the theory and practice between the compensation of damage and insurance claim and probe into the coordination of the two systems. For this reason, this article is divided into four parts.First of all, I define the conception of tort, compensation for damage, insurance, and insurance claim, and point out characteristic and purpose of the insurance claimat the same time, and compare the intension of compensation for damage and insurance claim.Then, I point out the changes from the doctrine of liability fixation to the insurance claim and analyze the function of compensation for damage and insurance claim. The compensation for damage has four major functions, namely compensation, punishment, sup pressure and consolation. The insurance claim has three major functions, that namely fill in and damage, safeguard third person's legitimate rights and interests and social functions of management.On this basis, I propose the two systems are the relation between general law and special law on the legal principle; meanwhile, insurance claim has weakened the punishment and sup pressure function of compensation for damage. Therefore the two systems have conflicts in principle and in the lawsuit practice. Meanwhile, in order to safeguard the victim's legitimate rights and interests to the maximum extent, the liability insurance is introduced into some fields of compensation for damage. The claim for insurance is based upon the paying the insurance, the reason is different from that the claim for damage. So, the appearance of the system of the liability insurance had enabled infringing on the value foundation of compensation for damage and stored and received the unprecedented challenge continuously. The liability insurance promotes and infringes to damage the expansion of the accident, result in infringing the right of claim for insurance and compensation.Finally, when I am analyzing about the coordination between compensation for damage and insurance claim, I insist on it by filling in rationally the harm that the victim receives all the time and prevent or reduce the happening of the tort damage as the principle to coordinate. The purpose is to coordinate this two kinds of systems rationally and can play a role to the compensation function of filling, so that it will not destroy the punishment and sup pressure function of the system of compensation for damage. Furthermore, I inquire into the condition that the victim can get both insurance proceeds and compensation for damage, and limitation. In the property insurance, because of the subrogation right, the assured cannot get the double compensation. But it is different in the personal insurance. When I discuss thecoordination between the liability insurance and personal compensation for damage, according to the law and economics theory—the cost of the damage should be the lowest. I bring up the legislation policy for the liability insurance to break the theory of rejected payment for deliberate intention act,distingwish the deliberate intention and faulty strictly, propose when the infringer has deliberate intention and grievous faulty, he or she should be punished, and this should be regulated in the civil code. Suppress the function and develop the weighing of the undertaking interests of insurance from the punishment which strengthens civil compensation, I think, the last result of two kinds of system development of compensation for damage that the insurance of our country settles a claim and infringes, must not pay the social consequence that the insurance premium can infringe wantonly. In addition, I also carry on the discussion to the lawsuit mode under in ringer's fault or the unerring situation, put forward the regulation that can draw lessons from the foreign direct lawsuit or regard insurance company as the third person.Infringe between compensation for damage and coordination that insurance settle a claim, see if offer the possible remedy to victim, pursuing people's value, the rights of the person caused damage the accident under the subjective state of controlling and disciplining the actor as a warning on purpose at the same time or culpable negligence, reduce the social operating cost further.The final purposes of all the theoretical research are realizing its social function and this article is no exception. I hope this article can solve the conflict between the compensation for damage and insurance claim beneficially on the practice.