The Analyse And Legislation Perfection Of The Insurance Subrogation In China

As the basic institution of insurance law, the right of insurance subrogation is at the core of the commercial insurance. But our relevant legislation is still not mature enough. With our current legislation of insurance subrogation, in light of the latest research achievements abroad, this paper probes into the basic theory, exercise rules, compare of relevant concepts, the legal protection and other related issues of this institution which explored the development of insurance subrogation and a mature way.This paper discuses this institution from four aspects including the basis of jurisprudence, the current legislation, the acquisition and protection of the right of insurance subrogation.In this paper, the first part expounds the basis of jurisprudence of this institution with the question of which principal should be applied out of the principals of damage filling, responsibility of fault and unreal joint obligation. In the operation of insurance, the debt owed by the insurer and the debt owed by a third person to insurant forms a relationship of unreal joint obligation which is the core of insurance subrogation system. After the accident occurred, insurer bears the debt to the insurant according to the insurance contract, while the third person was due to the breach of contract or tort. These two debtors bears debt to the insurant based on different reasons, so insurants has absolute and separate petitions. The content of the debt of insurer and the third person is generally the same which joint together on occasion. And the third person should bear the ultimate responsibilities. In this situation, the insurance subrogation system has been widely stipulated in insurance law in and abroad, and in insurance practice, all types of property insurance has adopted it yet.The second part is the customarily way to get the insurance subrogation and the influence of the exemption clause. The rights of insurance subrogation usually have two ways to get. One is the certain subrogation; the other is the request subrogation. The former is conciseness, and the only element is compensation. But the time and scope are not clear. The third party will often confuse the compensation payments and target range. The latter is very clear, but the insurant will control it. In practice it will be delayed and the efficiency of compensation will be impressed. Two methods have their pros and cons. At present, China's insurance legislation prescribes the certain subrogation. And it is very clear and useful. But in practice, the third party has the problem to come to time to whom. If it is the situation that he should pay the compensation to the insurance party and he should compensate to the insurant, the third party will pay how much is not clear. There is a case in this text to explain the insurant can't presume to minus the third party's liability. It is a legal liability that does not change because of the insurant's will. So if the insurant presume to abandon or minus the third party's compensate liability, he should encroach the insurance people's subrogation rights and he should pay the compensation.The third part of this text explains the use of the subrogation rights from two aspects. One is the name, and the other is the term. There are three opinions about the name of the right. In this text, I address it from the theory and the practice on the basis of our country's laws. In theory, insurance subrogation is a statutory right which is enjoyed by insurers; In practice, insurance exercise the right in their own them. This will help to simplify the proceedings and advance the efficiency. If the insurance people are regulated to exercise the rights in the name of the insurant, the insurance people will be controlled by the insurant. This situation disobeys the original idea. The law-making in this years shows that the law is definitude the insurance people's independently status gradually. In this text, I analyze the leak and bring forward the advice of law-making.In the fourth party, I analyze the protection of the subrogation from the way of it and the restriction and breaching of the right. There are two patterns about the way of the protection. One is the way under the doctrine of subrogation rights protections. The other is the way under the request of subrogation rights. There are three aspects about it: the restriction and breaching of the restitution; the restriction and breaching of the party; the restriction and breaching of the time. There are advices about the law-making. This paper does not support the application of health insurance and injury insurance subrogation. The insurance people can't share the compensation after paying the medical expenses insurance. In our country, it is the same situation. Except for the family's intent action, insurance people can't exercise the right in any situation. In practice, if insurance people exercise this right, he should assume onus propend. In practice, we should strengthen the consciousness time. In the certificate of insurance we should make policies similar to the British"red lines clause"or similar British ship insurance policies"careful protection all provisions". In the insurance contract, it was reminded of a third party insurers pay attention to the protection of their right to seek damages. or for the preservation of the right to request, may require third-party liability insurance to people who timely filed claims or damages litigation (legal fees from insurers advances ), when insurers paid compensation insurance, insurers substituted by the legal insurance eligibility, so that the protection and realization of the right of subrogation.In short, the insurance subrogation right system in China's development needs the practice. And the researchers need to explore in depth. This text only serves as a trigger. If it can be used to provide building materials for future legislation, it is the purpose.