Research On The Nature Of Right Of Subrogation In Marine Insurance Law

The subrogation of maritime insurance is a right which the insurer will obtain after the insurer compensates the insured for the economic loss caused by the insurance accident within the scope of insurance coverage and the right was originally belong to the assured.The subrogation principle is the derivative principle of the principle of loss compensation and applies only to property insurance.Through the subrogation,the insurer will recover the interest that he lost in performing the insurance contract from the third person who caused the damage after paying the claim,so that the third party will bear the ultimate responsibility for damages.Meanwhile,the assured will also be prevented from obtaining insurance compensation from the insurer while he has already been compensated by the third party.This result in preventing improper gains and maintenance of fairness and justice.The nature of the subrogation of marine insurance subrogation has been widely debated in the academic community of marine insurance and has also had a significant impact on the actual exercise of this right.The first chapter of this article will introduce the development of the theories of the nature of the right of subrogation of marine insurance in the Anglo-American law system,especially,the "implied term" theory and the "equitable right" theory.The second chapter of this article will introduce the main theories of the nature of right of subrogation of marine insurance in the Civil law system.The three main theories are "fiction of creditor's right","right of indemnity claim" and "transfer of creditor's right".Furthermore,the third chapter of this article analyzes the "transfer of creditor's right" theory and reaches to a conclusion that this theory is not perfectly suitable to the judicial practice in our country.Finally,in the last chapter,by deeply discussing the theories above and researching carefully on the issues of subrogation of our country,the writer reaches to a conclusion that the nature of the subrogation of marine insurance should be a"transfer of creditor's right".Moreover,by making a step forward to analyze the practical issues appearing the nature of subrogation of marine insurance should also be regarded as a "contingent right",which suits the judicial practice and the proper exercise of the right of subrogation in maritime insurance in our country.