Research On Insurance Subrogation Right

The right of insurance subrogation is a kind of statutory right which is obtained by the insurer based on paying the compensation for the insured after the insurance accident appears; it is not only an elaborate system design which is used to prevent the unjust enrichment of the insured and maintain the principle of the insurance indemnity, but also the product of the combination between the subrogation system of civil law and the principle of insurance indemnity; moreover, it keeps the good balance of the benefit among the insurer, the insured and the third party. Due to this unique role, the right of insurance subrogation holds a place in the field of insurance law.With the rapid development of the insurance industry, there are many thorny problems in the process of exercising the right of insurance subrogation; in addition, the related legal provisions are too principle-based and generalized, and the theoretical research into the right of the insurance subrogation is not in-depth and imperfect, the discussion of this problem has the important theoretical value and practical significance. Therefore, through taking the right of insurance subrogation right as the research object, the author applies the comparative analysis method, tries to grasp the theoretical foundation of the insurance subrogation, clearly defines the exercise and restriction of the insurance subrogation, and strengthens the legal protection of the insurance subrogation, so as to promote the improvement of the right of insurance subrogation.In addition to the introduction and conclusion, this paper is divided into five parts:Part Ⅰ is the introduction to insurance subrogation. The historical retroduction method is used to seek for the origin of the right of insurance subrogation; through the analysis on the argumentation of the right of the insurance subrogation between the continental law system and Anglo-American legal system, the insurance subrogation is defined as a statutory subrogation. Part II is the theoretical foundation of the right of insurance subrogation. As the derived right of the indemnity principle in the insurance law, the legislation value of the right of insurance subrogation is to prevent the unjust enrichment of the surplus compensation which is obtained by the insured and to prevent the improper immunity of the third party by virtue of the insurance compensation. In addition, based on retorting on the challenge to the traditional insurance theory, the necessity of the existence of the insurance subrogation is established.Part Ⅲ is the comparative research on the right of insurance subrogation and the related theories. Through the comparative analysis of the unreal joint obligation theory in debt and the subrogation theory of relationship safeguard, as well as the theory of subrogation, in this part, the author points out that the aforementioned two theories have the reference and guiding significance to the theory of insurance subrogation; however, when the legal relationship of the insurance subrogation is explained in some special circumstances, the blind area of the theory still exists.Part Ⅳ is the exercise of the right of insurance subrogation. As for the name of exercising the right of insurance subrogation, the various countries differ a lot in the judicial system and practice. Through the comparative analysis of the judicial systems in various countries, the author comes to the conclusion that it is better to exercise the right of subrogation in the name of the insurer at the present stage in China. Subsequently, through the deterrence of the scope, object and prescription of exercising the right of subrogation and other aspects, the author makes suggestions and revisions on the related legal systems in China based on the analysis.Part Ⅴ is the legal protection of the right of insurance subrogation. In this part, the legal protection of the insurer’s right of subrogation is mainly measured from obligation of the insured. Firstly, the author analyzes the assistance and preservation obligation of the insured when the insurer exercises the right of insurance subrogation; secondly, the author studies the influence on the right of insurance subrogation when the insured performs the act of abstention in different stages; finally, the author comes to the conclusion that the insured has the positive assistance obligation in addition to the negative obligation without prejudice to the right of subrogation.