The Solution To The Conflict Between The Subrogation Right Of The Insurer And The Claim Of The Insured

The subrogation of the insurer is a legal right arising from the principle of loss compensation and fairness in property insurance.The original intention of the system is to prevent the insured to obtain double compensation and then unjust enrichment.In the event of a third party breach of contract or infringement caused by an insurance accident,due to the existence of exclusions,deductibles,lack of insurance and other reasons,the insurance may not be able to fill all the losses of the insured,in this case,The status of the subrogation of the insurer and the claim of the insured person's claim.If the third party is insolvent or has other restrictions on liability,if the two rights at the same time to its claim,then the two will have a conflict,the insurer and the insured for the third person limited the possibility of limited property.At present,China's existing subrogation system of insurers does not specify the rules of dealing with this conflict.In this paper,through the combination of comparative research and empirical research,this conflict resolution rules put forward their own views.The main body of this article is divided into four parts,the main contents include:the first part of the question put forward,by enumerating the domestic and international judicial practice exists on the subrogation of the insurer and the insured damages the right to claim the right to conflict with the different treatment ideas With the results,how to solve this conflict of rights.The second part is about the theory and practice of the conflict between the insurer and the insured.First,it introduces the theoretical basis of the subrogation of the insurer.The main contents include the existing theories about the subrogation of the insurer and the author's The author analyzes the causes of the conflict between the subrogation right of the insurer and the right of the claimant's claim,and introduces the various types of the conflict of rights,and then sums up the three rules on dealing with the conflict of rights between the two,And finally introduces the legislation of the subrogation of the insurer in China and the confusion of the conflict between the two in the judicial practice.The third part is the reference and reference of the comparative law.Firstly,it introduces the different institutional arrangements and theoretical basis of the subrogation right of the insurer under the civil law system and the Anglo-American law system,and then introduces the legislation and judicial status of the conflict between the two countries The The fourth part is the construction of the rules of the claim for the subrogation of the insurer and the claim of the claim of the insured.First,the selection of the handling rules should be selected,and the principle of the priority of the insured should be chosen as the conflict The general rules,at the same time with the provisions of the special law and the parties agreed as an exception to the rules,and finally put forward legislative proposals on the construction of the rules,proposed in the "Insurance Law" to increase the competing terms and the establishment of the insured to the priority principle as the core of the joint Claims system.