On Insurance Subrogation

The right of subrogation which has a profound theoretical and practical foundation is an old and important rule of insurance law. It's an effective instrument to balance the benefits among the three parties. Recently, some scholars held that the right should be abolished. But in the author's eyes, it should be reinforced as to current legal and social conditions.This paper is divided into five parts except for preface and conclusion.Part I: The rationale of the right of subrogation. This part is began with the summary of previous theories which are classified as positive theory, passive theory and compromise theory by the author. Then, a brief comment about those theories mentioned above is made .At last, the author's view is given that the rationale is nonstandard joint and several obligation.Part II: The legislative reasons for the right of subrogation. In this part, -three reasons are discussed. First, subrogation embodies the fundamental value of commercial law. This paper takes fairness and efficiency as the fundamental value of commercial law and analyses the meaning of them. Second, subrogation can reduce the happening of moral risks. Because the moral risks are not in accordance with the purpose and function of insurance. So, how to deal with the moral risks is an important task of every country's insurance law. Third, the right implements the indemnity principle.Part III: The nature and character of subrogation. The nature is discussed at first from two aspects , the nonstandard joint and several obligation and cession of obligatory right. Then is the character.Part IV: The applicant scope of subrogation. This question has given rise to much controversy. Generally, insurance is divided intoproperty insurance and life insurance. Based on this view, the author discussed this question from these two aspects. In property insurance, the main issue is the application in liability insurance. This paper's view is that subrogation just applied in the situation that insurer committed joint liability because of joint infringement. In life insurance, the key point is the application in casualty insurance and health insurance.Part V: The performing of subrogation. Four issues are mentioned in this part. l,The condition of performing. The author analyzed it from the nonstandard joint and several obligation. 2, The name of performing. There are three views about this issue currently. This paper agrees on the view that the insurer should perform the right in his own name. 3,The extinctive prescription of the right. This section focus on two questions. One is what prescription should be abode by and. the other is when should the prescription begin. 4,The object of performing. The third person is the object of performing, but not include some special persons such as family members. The author gives the reasons that exclude those special persons from the third person and concrete criterions on how to define those persons.