Research On Exercise Rules Issues Concerning Insurance Subrogation

As a derived right of principle of insurance compensation, insurance subrogation is the product of combination of creditor's rights assignment system in Civil Law and principle of insurance compensation. The purpose of this system is designed to prevent the insured gaining additional benefit exceeding the value of insurance object, avoiding the third party escaping from responsibility for no reason, and reducing premium rate, so as to realize the balance of profits among the three parties. The unique function of insurance subrogation makes it play an important role in field of The Insurance Law.With the rapid development of the insurance market, many difficult problems occurred when the insurer exercising the insurance subrogation. In addition, there are still a lot of loopholes in legislation, which causes the same case to the judgment of a different outcome in judicial practice, even more the opposition of verdict. Scholars'researches on the exercise rules issues haven't gone further enough, which so decides the important theory value and the practice significance of discussion on exercise rules issues on insurance subrogation. For that reason, taking exercise rules issues on insurance subrogation as the research object, the author will make a deep analysis to exercise rules issues on insurance subrogation in China, and propose correction proposal on exercise rules.Solution to exercise rules issues on insurance subrogation can hardly do without the application of basic theory of insurance subrogation by us. Through clear definition to the meaning and nature of insurance subrogation, it is more convenient for us to understand the legal relation among the insurer, the insured and the third party. In this paper, starting from introduction to insurance subrogation, a deep analysis on the meaning and nature of insurance subrogation is made, the origination of insurance subrogation is to be found by mean of historical source, and disputation on the origination of insurance subrogation in civil law system and Anglo-American law system is analyzed. Meanwhile, three functions of insurance subrogation are concluded: avoid the insured gaining double compensation; prevent infringer escaping from liability for damages; and strengthen insurance fund so as to reduce the economic burden of members of dangerous groups. From perspective of establishing elements and exercise elements of insurance subrogation, the author does an analysis to the current legislation of our country, gives a concentrated discussion on the subject, object and scope of exercising the subrogation in exercise elements, and makes a comparison on advantage and disadvantage in aspect of exercise rules in every country through organizing to legislation at home and abroad, thereby, a way of solving the exercise rules issues on insurance subrogation in China is offered. Exercise rules issues on insurance subrogation are mainly focused on execution object, execution period and scope of application etc. By using some controversial cases appearing in insurance practice, focus of controversy of exercise rules issues on insurance subrogation is concluded and is given a reasonable explanation in this paper. Based on this, correction proposal on exercise rules issues about insurance subrogation in our country are put forward so as to make exercise rules on insurance subrogation more perfect.From the author's point of view, exercise rules issues on insurance subrogation are the epitome of interests of all the parties when rules of insurance subrogation being applied in practice. In order to make full protection to the interests of the insured, judgment on family members of the insured shall be taken the standard that whether having a consistent interests or not, and not taken the only judgment standard of living together. Composed members of the insured should be interpreted as those who take part in activities for the interests of the insured such as employees, staffs or agents, etc. when the insured are the legal person or other organizations. During process of the insurer exercising the insurance subrogation, legislator should guarantee their due benefits of prescription, which is also in order to urge them to actively exercise their rights at the same time. For the scope of application of insurance subrogation, legislator should make supplementary provision that insurance subrogation can also be adopted by insurance contract with personal damage compensation. When the time comes, German classification methods on insurance contract should be also taken, classifying insurance contract into damage compensatory insurance contract and quota payment insurance contract, which is beneficial to facilitate judicial practice and reduce disputations. Legislator should make clear stipulation that the insurer cannot transfer the insurance subrogation so as to maintain the consistency of laws and functions of insurance subrogation system.In conclusion, solution to exercise rules issues on insurance subrogation must be combined with the growth degree of insurance market and legislation situation in our country, focus effort on design and value orientation of the overall system, and cope with new problems appearing in the real life, so as to guarantee the vitality of insurance subrogation system in law system of social insurance.