Doubt On The Rationality Of Insurance Subrogation

Insurance subrogation is an ancient system which has generally been provided in Insurance Legislation of every state. It is mainly to resolve the problem that insurers have compensation claims to the third person on behalf of the insured person who have been compensated in the scope of compensation. But now, relevant laws' regulation is not exhaustive so that there are constant controversies in the application scope and exertion of the insurance subrogation. This article doubts in the discussion of the controversies the theoretical foundation of its existence and the rationality of its mandatoiy requirements given by law. In academia and practice of our country, some scholars have refuted insurance subrogation profoundly even claimed to abolish it. It is unnecessary to abolished that if it can be fixed up to serve. Consequently, this article tries to analyze the controversies on the application scope and exertion of the insurance subrogation. In combination with the background of the insurance subrogation, doubting the theoretical foundation and statutory subrogation doctrine, this article discusses the possibility that statutory subrogation changes to concerted subrogation.This article is divided into three parts excluding introduction and conclusion.Chapter One Overview of insurance subrogation. This chapter tries to analyze the meaning and the application scope of insurance subrogation in order to propose the reasons and the sense of doubting the rationality of insurance subrogation.Chapter Two Doubt on the rationality of theoretical foundation. There are three theoretical cornerstones of its existence: the principle of compensation for loss, the principle of civil penalties, the principle of protecting the interest of the insured person. Deriviated from these are the theoretical basis of the existence of insurance subrogation: theory of unjust enrichment, theory of social equity, theory of protecting the interest of the insured person. By refuting these above, it is proved that there is no legitimacy and rationality of the existence of insured subrogation.Chapter Three Doube on the rationality of statutory subrogation doctrine. At present, the origin of insurance subrogation is statutory subrogation doctrine in most countries in the world. But insurance subrogation has a great deal of irrationality. Statutory subrogation doctrine greatly infringes on the interest of the insured person. As a result, in nowadays increasingly advocating autonomy, it is necessary to change the statutory subrogation into a right concerted by parties.