The Analysis On Insurance Subrogation Right

Insurance subrogation right is based on the principle of insurance benefits in all states insurance law, in order to prevent the insured from accessing double benefits, which is totally identified as a claims transfer system. Insurance subrogation right is a system, which is essentially subrogation settlement system of traditional civil law specific used in the field of insurance law, and it is the result of combining of Civil and Commercial Law subrogation right and insurance claims system, with its own independent legal status.This paper focuses on the perspective of commercial insurance, stressing the narrower insurance subrogation for discussion. The full text is divided into four parts for exposition:First of all, this paper introduces the production of insurance subrogation right, insurance subrogation right connotations, legal basis and the elements of insurance subrogation right. This part of the exposition starts with exploring the origin of insurance subrogation right, stating that subrogation legal system derives from the Roman law, developing in the British equity related to the right of subrogation, deriving from claims for civil law system on applying in insurance legal relationship, in essence, which is the main change in a debt. Then, this paper leads on the insurance subrogation right connotations, introducing the concept of the relevant laws and regulations in Germany, Japan and other countries in the world at the same time. Then it draws the definition of insurance subrogation right, that is, as the third party damages the subject of insurance caused by the accident, the insurer receives compensation money for the insured, enjoying the exercise of subrogation right to seek compensation for the insured to a third party in the amount of compensation. Thirdly, this paper analyzes the legal basis of insurance subrogation right. This portion uses the wording of the 15th, firstly, introducing various legal theories, then exporting the paper's view, that is, the theoretical basis of the insurance subrogation right are insurance compensation principle and the fairness principle of the Civil Law. Mentioned in the exposition, the production of insurance subrogation right is the inevitable logic conclusion of the basic compensation principle of insurance law. And the compensation principle is based on nature and function of the economic compensation of the insurance, which is the objective requirements of the commodity economy. The core of insurance principle is to prevent the insured from gaining unjust enrichment. From the perspective of fairness principle of legal sources, the insurance only provides risking protection for the subject matter of insurance, should not lift the third party who should bear civil liability. This is because the essence of the law is to punish a person who is out of law, to safeguard fairness and justice. At last, this paper introduces the elements of insurance subrogation right, that is, the establishment of insurance subrogation right must meet three necessary conditions, which are, the subject matter of insurance damage caused by acts of a third party, the right to request compensation enjoyed the insured to the third party, and insurance compensation money paid by the insurer. Then this part further defines the scope of the third party and five violations. And it exports the conclusion that insurance subrogation right only establishes when insurance money is paid by the insurer, whether and when insurers for the insurance money paid should be made to judge this important conclusion for the sole basis.Secondly, the article discusses the similarities and differences between the insurance subrogation right and the related concepts. The comparison of theory and practice includes insurance subrogation right and the creditor subrogation right with seven different points, commission pay system, behalf of the right of the object, as well as the right to deduct insurance.Thirdly, this paper introduces various issues involved in the exertion of insurance subrogation right, this part is divided into three areas launched. At first, this paper exports this argument by demonstrating for many aspects on theory, practice and legal point of view, which is, the insurer should exercise insurance subrogation right in the name of the insured. Then, this paper discusses two problems of the limit of the exertion, that is, the amount of insurance subrogation right and the object of insurance subrogation right. Restrictions in the exertion of the object, this paper points out that in addition to family members or members cause the accident deliberately, in principle, insurers should not exercise subrogation right to the insured's family members or members. By judging related insurance legislation and the provisions of case in several countries such as United Kingdom, the United States and Japan, this part defines that the targets for the exercise should be interpreted broadly, at the same time the public should be included in the scope of legal persons. Among them, in the restrictions of the exertion amount, from both the positive and negative aspects of feasibility studies, this paper draws the conclusion that the actual insurance subrogation right should be received by the less between the actual insurance premium paid by the insured amount and the actual amount of loss. At last, the paper introduces two aspects of legislative protection for the exercise of insurance subrogation right, that is, the insured's related assist obligations and insurance act punished at fault. Among them, related assist obligations means, providing evidence, litigation assistance, not waiving the right to request and the fault insurance deduction. Among them, two fault behaviors mean that, one is the insured against the breach of the obligation to act, if insurance money not paid, the insurer may reduce insurance payment correspondingly; if the insurance money paid, the insurer may request the insured to return. The other is for the insured person giving up the right to claim to the third person, the distinction should be drawn through different acts abstained stage and dealt with separately. In addition, the paper cites the differences between insurance subrogation instituted proceedings legislation in the United States and the issue of China. Finally, this paper starts to discuss three major aspects of insurance subrogation right, the situation of exertion, significance of the existence and development proposals. This part of the exposition is summarized and sublimated of the Legislation, theory and practice. Among them, in the situation of the exercise of the insurance subrogation, this paper points out that the subrogation system under China's legal system is still not perfect. For example, the strict limits for the exercise of the insurance subrogation right do not help to the exercise the right of subrogation, not to ultimately hold the third-party legal liability. The lack of related legal provisions for subrogation insurance system do not help resolve the legal relationship between the insurer and the insured. Not unified on the academic, legislative ambiguities and wavering in the practice, show that China'legal on understanding the meaning of subrogation system is not enough, and the settlement of this issue also needs further efforts all together. Among them, in the exposition of the insurance subrogation right existence, through five points this paper carrying out in-depth draws conclusions review that, the parties in the insurance, the insurer's operating risks, accumulating funds, providing stable resources to the community, plays a tremendous role on escorting a market economy and solving problems and overcoming difficulties to the people's lives. The insurer's operating condition, not only is related to the insurer's self-interest, but, even more important, will have a significant impact on the interests of the whole community. The insurer's interests and the interests of the community are closely related. Therefore, from the point of view of the protection of the interests of the community, the emphasis should be placed on preserving the interests of insurance. Finally, in the part of the insurance subrogation right development proposals, this paper points that, as the point of concern of insurance companies is in that of sustainable human development, and the correct exertion of insurance subrogation right help the insurance industry to maintain its strong capital scale, so that insurance companies more in-depth service for social security undertakings. Therefore, at present, China's insurance subrogation right system should strive to improve the work from the following seven ways, namely, awareness-raising, familiar with business and the law, the creation of specialized recovery agencies, establishing a scientific and systematic management system, simplifying the proceedings, learning from foreign experience and academic research.