The Identification Of "The Passenger" And "The Third Party" In Insurance Accident—An Analysis Of Typical Cases

In many instances, there is a great controversy over the recognition of the identity of the passengers and the third party. Usually, local courts have different opinion about the definition of the identity of victims. Different results of judgment will result in the major difference in the results of insurance compensation, and are bound up with the vital interests of other parties, so it is very important to unanimously recognize the identity. Through two typical cases, this paper analyzes how to recognize the identity of passengers in both cases that the passenger is thrown out from the vehicle to cause death and the passenger is crushed by the vehicle after being thrown out from the vehicle. Besides the introduction and conclusion, this paper is divided into three main parts:The first part includes the case introduction and the referee's opinion. Case one: the passenger is thrown to death, the judge's opinion in the first instance is different from the second instance, and through the second instance the court judge adjudges that the plaintiff is still the person on board without transformation into the third party. Case two: the passenger is thrown out of the vehicle and crushed again by the vehicle, through the first and second instance the court judge adjudges that the plaintiff has transformed into the third party. Thus, the case controversy is: 1 whether the passenger thrown to death transform into the third party; 2 whether the passenger thrown out of the vehicle and crushed again by the vehicle transform into the third party. In addition, this part analyzes reasons of such controversy in judicial practice when it gives a brief comment on the case, which includes the different value orientation of the court, some ambiguity in the expression of the guiding rule of “When the accident occur”, the division between on-board and the off-board, and ignorance of their continuity and proximity.The second part is an analysis of controversial focus. This part puts forward comments of existing ideas, as well as opinion and reasons of this paper in combination with above cases. I. In the present juridical practice, the views on the cases include the “position transformation theory”, the “transformation theory of collision and crush”, the “comprehensive transformation theory”, and the guidance of Supreme People's Court for such cases. Meanwhile, this paper introduces all these views and proposes the judgment representing the courts. The points of this paper are derived by analyzing the defects of these views and questioning the inconsistency in the judgments of Supreme People's Court. The author suggests that “when the danger occurs”, i.e. “the early moment of the occurrence of accident” rather than the occurrence of damage, is considered to be the standard; at the moment of the occurrence of accident, the person is considered to be the passenger if he is on board and the third party if he is off board. II. The reasons for supporting the view. Firstly, as to the point-in-time of “when the accident occurs”, the author suggests that “when the danger occurs”, i.e. “the early moment of the occurrence of accident” rather than the occurrence of damage, is considered to be the standard, from perspectives of the guidance of the Supreme Court, the proximate cause of the accident and the fairness of insurance. Secondly, such problem shall be considered from the point of view of proximity and the reason for resulting in the final damage rather than a pure position in space shall be considered. Thirdly, starting with the insurance functions of the Compulsory Traffic Accident Liability Insurance, the Commercial Third-Party Liability Insurance, and the Passenger Liability Insurance, this paper proposes that the scope of the third party in the Compulsory Traffic Accident Liability Insurance and the Commercial Third-Party Liability Insurance cannot be randomly enlarged, because the establishing of such liability insurances has their own value and reason. Lastly, as the third party have natural protective barriers, the advantages of position, and multiple protection measures, the conclusion shall not be drawn based on the severity of the final result of damage; and the corresponding kind of insurance with high premiums shall not be required due to severe results.The third part includes the conclusion and the enlightenment. Thus, the scope of the third party relates to the whole auto insurance policies, and various factors need to be considered. Whether at the institutional level or at the judicial level, the growing cardinality and scope of the third party have an extremely negative impact on the whole compensation system, and ultimately bring the numerous disadvantages to the victims.