Marine Insurance Subrogation Right To The Legal System

This article's main idea is : starting from the current insurance subrogation system of our country , taking the basic theory of the insurance law as the standpoint, fully using the research method of jurisprudence and theory of insurance to review the basic theory, standard of practice and law protection for the system. By this way , the author endeavours to find the various choices and the best measure to consummate the insurance subrogation system of our country.There are five parts of this article:Part 1 is emphasized to tackle the character of law of the marine insurance subrogation system. Starting from the origin and basic concepts, analyzing the fundamental of its theory and social function, the author points out that the essence of subrogation is a transaction of creditor's legal right. Through comparison of law system of the mainland and that of U.K and U.S.A, the author reaches the conclusion that the marine subrogation is a legal right.Part II mainly investigates the feature of the marine subrogation. Through comparison of the common aspect and uncommon aspect of the marine subrogation and insurance subrogation, that of the entrustment, creditor, this article gives the feature of the marine subrogation.Part III discusses the obtaining of the marine subrogation, mainly states the time of obtaining and how to obtain it. This paper gives its viewpoint that only after the insurer paid the indemnity, he can get the subrogation. This shows that in the legislation of our country, the doctrine of certain subrogation was chosen. Finally, through analysis of the time limit system, the author indicates that prosecution should be done in order to protect the practice of the marine subrogation system, if necessary.Part IV is the important part of this article. Investigating both domestic and overseas legislation and practice, the author analyzed systematically and thoroughly the main problem, i.e. name of practice and limits of practice etc. After that, the author tackled the special practice character of the marine insurance subrogation under the conditions of reinsurance and underinsurance, trying to solve the interest conflicts and to seek the balance of individual parties during the process. Further the author indicates the difference between reasonable insure aborting the right of subrogation and unreasonable aborting of it and the legal effects of the act.Part V is a summary of the article. In this part, it is emphasized to the problem of consummating of the marine subrogation system. In the end , through the analysis of some problems in the law of our country, this article points out some places need to be improved in China's legislation.