Insurance Subrogation Legal System

The insurance subrogation is an important rule of insurance law. It has a profound theoretical and practical foundation and is affirmed by every country. 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. To study the insurance subrogation is the paper's goal and also has an important practical value.This paper is divided into five parts except for preface and conclusion.Part one: the generalization of the insurance subrogation. The paper points that the insurance subrogation should comprise two part: the right of subrogation and the jus ad rem of subrogation; then, the paper analyzes its constitutive requirements, legal relation, essence, characters and its functions.Part two: The theoretical basis of the insurance subrogation. As a legal rule, the insurance subrogation has its profound basic theory. The paper expounds this issue from the jurisprudence, the science of civil law and the science of insurance law. At first, it is the pursuit of the values of justice and effectiveness. The paper analyses the meaning of justice and effectiveness and holds that it embodies justice and effectiveness. Secondly, it comes from the civil subrogation. The paper criticizes the view that "the nonstandard joint and several obligation is the civil basis of it" and points that it is the application of the civil subrogation. Finally, it is the embodiment of indemnity principle.Part three: The performing of the insurance subrogation. Five issues are mentioned in this part. The first, the name of performing, there are three views about this issue currently. The paper agrees on the view that the insurer should perform the right on his own name. The second, the object of performing. The third person is the object of performing, but not include family members. The paper gives reasons that exclude those special persons from the third person and concrete criterions on how to define those persons. The third, the way of performing. The paper analyses the status of the insurer in the subrogation lawsuit and discusses what prescription should be abode by and when the prescription should begin. The fourth, the conditions of performing. The paper differentiates the constitutive requirements and the conditions of performing and points that thereare two conditions: one is that insurance compensation has been given and the other is that it is defined by the given insurance compensation. The fifth, the effect of performing. The paper holds that the performance will effect the third person and the insurantPart four The abandonment of the insurance subrogation. The paper analyses the four reasons of the abandonment of it Then it introduces some opinions about the issue and point that it should be viewed by dividing the problem that the insurer abandons the procedure or the substance of the subrogation.Part five: The legal protection of insurance subrogation. The paper analyses the duties of assistance and preservation for the insurant, then discusses the legal treatment because of the insurant's wrong. For the obligation of the duties of assistance, the insurer may subtract insurance compensation; for the obligation of the duties of preservation, the effect is affected by the time that the insurant abandons the right of claimant to the third person.