Study On The Direct Request Right Of The Third Party In Liability Insurance

Direct request right of the third Party in liability insurance refers to the right ofthe third party as victim in liability insurance to directly ask the insurer for insurancepremium indemnity. Article65of the Insurance Law, which was revised in2009ofour country, stipulates that, the third party in liability insurance is entitled to directlyask for insurance premium indemnity as to the compensation he shall obtain. Thisstipulation clearly defines the right of the third party to directly ask for insurancepremium indemnity. The premise of the exercise of such right is “delay in request” ofthe insured; however, there is no explicit interpretation of “delay in request” of theinsured in the Insurance Law, which results in confused identification of the premisefor exercise of such right. Besides, many scholars hold that the third Party enjoys thedirect request right to the insured based the stipulation of Article65in the newInsurance Law, to which, I personally oppose. The insurer may directly indemnify tothe third Party insurance premium under certain conditions, which theoretically fallsinto the category of performance of contractual obligations to the third Party, but thethird Party does not receive the right of performance whereby. I am of the opinionthat the request right of the third Party in compulsory liability insurance andvoluntary liability insurance are different types of request right. The controversymentioned above shows that, there are weaknesses to be improved in the newInsurance Law.For clues of diversities of different types of liability insurance functions, thethesis analyzed the theoretical problems related to direct request right of the thirdParty in liability insurance. Based on the discussion about the problems concerningthe direct request right in the current law of our country, and the comparative studyof similar rules in other countries or regions, the paper proposed suggestions toconsummate rules of direct request right of the third Party in liability insurance in ourcountry, which is expected to be helpful to perfect our country’s insurance legislation.Part one is about discussion of the legal basis for liability insurance and therequest right of the third Party wherein. Through understanding of the liability insurance is required for the study of request right of the third Party. The liabilityinsurance is one kind of property insurance, which is with the insured object ofliability of compensation to others by the insured. After hundreds of years ofdevelopment, the liability insurance has developed itself from the simplediversification of liabilities of the insured and protection of the insured. Now it isgenerally accepted by the theoretical circle is that, the value of liability insurance liesin the protection of the third Party as victim, which is strongly characterized with thethird Party. The analysis of functions, features and types of the liability insuranceprovides a solid foundation for the exact understanding of request right of the thirdParty. Discussion of the request right of the third Party is based on the legal basis forthe request right. The request right of the third Party is based primarily on theprotection of the weak on the basis of fairness and justice with the purpose of highefficiency and its existence made a breakthrough to the traditional principle“relativity of contract”. The main influential theories are “the Doctrine of OriginalAcquisition"," the Doctrine of Rights Transferring”,“the Doctrine of LiabilityRelease” and “the Doctrine of right of subrogation of the Creditor” as to nature of therequest right of the third Party. Through analysis of these doctrines in this paper, Iconclude that the nature of the liability insurance shall be distinguished fromcoerciveness. Nature of the mandatory liability insurance is applicable to the “theDoctrine of Original Acquisition” and the voluntary liability insurance applies to “theDoctrine of Rights Transferring”. Establishment of the request right of the third Partyshall be differentiated as per the type of liability insurance. Discussion on necessity ofestablishment of the system of request right of the third Party is also given in thispart.Part II mainly analyzes and discusses the current legal situation of the requestright of the third Party in liability insurance of our country. Article65of the newInsurance Law is the stipulation on request right of the third Party in liabilityinsurance. It specifies limitations of the direct payment obligation of the insurer,direct request right of the third Party in liability and claim of the insured, which are ofcertain weaknesses. Firstly, provisions of Article65regarding premise ofperformance of payment obligations by the insured seem contradictory to each other; secondly, the stipulation on premise of exercise of the request right of the third Partyis not explicit with no distinction between different types of liability insurance;finally， the stipulation on limitations on claim of the insured is rather vague, whichwill result to problems in implementation. Compared to this paper, some special lawsentitling the direct request right of the third Party are vulnerable regarding to theopinion that“mandatory liability insurance shall endow the third Party with requestright without plea instance”.Part III is about the suggestions on improvement of the system of request rightof the third Party of our country. Firstly, some summaries are provided on the instanceof legislation of main developing countries and regions for reference in legislationand suggestions, which include: establishment of the request right of the third Partywith distinction of the type of liability insurance, establishment of premise of exerciseof the request right, removing the contradictory terms, adding the assistanceobligations of the insured and clear definition of the request right of the third Party inspecial laws, etc.