The Legal Research On Exercising Of Subrogation In Maritime Insurance

The right of subrogation in marine insurance, which is stipulated in Maritime Code of the PRC, Insurance Code of the PRC and Special Maritime Procedure Law of the PRC, is an important system in the field of marine insurance. As our state has not sufficiently experienced in maritime affairs and the correlative theories are not so mature, some stipulations in the substantive laws are not clear and definite, even contradictory, which lead to the "conflict" between the legislation and the actual legal effect in judicial practice . These legislative flaws manifest themselves in succession. Therefore, basing on the existing Taws and by proper use of comparative law, the author will expound on several confusing issues on the level of legal principle and put forward some suggestions.This thesis is mainly divided into five parts. In partâ… , for giving the readers a thorough understanding on the essence of the right, the author briefly introduces some basic theories on the right of subrogation in marine insurance.From Partâ…¡to Partâ…¢, the author probes into some flaws in our domestic legislative system and give some practicable suggestions also. In partâ…¡, the authordescribe the exercising subrogation right from the three part------the exercisingconditions , the exercising way and the exercise object. In Partâ…¢, it discusses the legal protection for the subrogation right. Starting with the connotation of the obligation of the insured, the author draws to a conclusion that the assist obligation only requires "passive assistance" (in ordinary circumstances) and doesn't go that far to the extent of "initiative protection" . Then ,it discusses the act of making liability-exempt clauses and its influence on the subrogation right according to the four phases in the insurance business process. At the end of this part, the author shallowly talks about the legal consequence of the insured's harmful conduct to the subrogation right. This general provision has large flexibility and accordingly provides good legal basis for the protection of the underwriter's subrogation right in maritime practice.In partâ…£, the author probes into the problem of the arbitration clause between the insured and the third part can restrict the maritime insurer . In order to prove this view, the author explain that from four part. Finally , in partâ…¤, the author get aprobe into the problem of this case------when the insurer get the subrogation in theprocess of enforcement, whether the insurer therefore acquires the right to apply the court for enforcement of the judgment. This thesis maintains that the insurer has acquired the substantive right and then he/she should accordingly enjoy the procedural right.