Study On Rights And Obligations Of The Insurer In Insurance Subrogation System

The right of insurance subrogation is an institution with the character of antiquity and importance in insurance law area, the theoretical basis of which comes from the equity principle in civil law as well as the principle of indemnity in insurance law. The establishment of this right has played an important role in prohibiting the unjust enrichment of the insurant, in forbidding the third party who is to bear the responsibility of causing the insurance accident escaping from his responsibility, as well as in guarantying the legal rights of the insurer. Thus this institution should gain more attention in both theoretical and practical area. But the insurance laws in China, including "Insurance Law in People's Republic of China", "Maritime Law in People's Republic of China" and "Special Maritime Proceeding Law" are all short of definitude provisions about the right of subrogation, which makes it difficult to exercise in reality. At the same time, the existing difficulties are also causing the insurers to hold their steps before the exercising of the right.In order to solve the problem, the author takes measures from the institution itself and the combination of the theory with practice to research seriously and particularly the right of subrogation, and by way of comparing and surveying in the reality, the author has also made many progresses in this area, with the hope of accelerating the construction of the insurance law system in China. This dissertation "Study on the Rights and Obligations of the Insurer in Insurance Subrogation" contains mainly three parts: The first part has been deemed as the summarization of the insurance subrogation right, which concerns the concept, theoretical basis and function of the insurance subrogation right. At the meantime, it has been mentioned in this part some oppugners on the function of the insurance subrogation right, and the author gives her own point of view on this matter after serious analysis. The author figures that seeing from the balancing of different legal values, the role insurance subrogation right is functioning now is still too important as to be replaced. The second part of the dissertation concerns some basic matters in exercising this subrogation right. The main content has been put on the discussion of the qualifications, restrictions on the exercising of the right, the way to gain the right, the name of claiming, etc. Firstly, the exercising of the right should fulfill the following qualifications: A: The insurant should have been endowed with damages claiming right against the fault third party; B: The insurer has already compensated the risk to the insurant; C: The insurer should only exercise his subrogation right in the range of the sum of the risk. Besides, the exercising of the insurance subrogation right has also the limitations on the exercising scope, the objection of exercising and the lapse of time, otherwise the abusing of the right will cause serious invasion towards the legal rights of the insurant and the third party. All in all, the author has discussed some relative matters which might be encountered with in the reality, and has also clarified much chaos in insurance legislation. To be mentioned specially, the author put her emphases on the discussion of the "Right Transferring Script", and made her conclusion that the script should not be deemed as the base on which the subrogation right relies in order to engender, but it can be used to help claim damages to the third party. The third part of the dissertation discusses the obligations of the insurer in exercising his right of insurance subrogation. The right of insurance subrogation is surely the legal right insurers own, but due to the inheriting character of it and the challenge it has proposed to the "relativity of creditor's right", the exercising of the right is greatly influenced by the compensating conducts of the third party and relies largely on the cooperation of the insurant. Thus, this part contains much about the situations in the under insurance contract, as well as the insurants' duty to cooperate and the restrictions on the abnegation of claiming right of the insurant to the third party.In a word, with the development of the insurance industry, the insurance companies are paying more and more attentions on the right of insurance subrogation, thus, the academicians in theoretical area and the people in the practice should also look up to the research and usage of the right, so that we can try hard together to promote the insurance subrogation right system.