On The Legal Regulation Of The Insured’s Obstruction Of Subrogation

The insured’s obstruction of insurance subrogation means that the insured enters into an exemption agreement or a settlement with a third party,there by impairing the insurer’s exercise of subrogation.Insurance subrogation is an important system in the insurance law.It is a concrete manifestation of the principle of loss filling.It can prevent the insured from obtaining double compensation,avoiding the third party’s dismissal and reducing the burden on future insured.With the current booming insurance market,the insurance industry is playing an increasingly important role in our daily lives.The legislation on the insured’s obstruction of subrogation can no longer meet the needs of insurance practice.With regard to the regulation of the insured’s obstruction of insurance subrogation,most countries in the civil law system currently adopt the“discrimination”,that is,the specific insults of the insured person are not allowed to interfere with the subrogation,and the insured person is allowed to obstruct the result of subrogation.The same is true of China’s Maritime Law.However,in Article 61 of the Insurance Law of China,the regulation of the insured against the subrogation is divided into "differentiation" and "discrimination".After the insurance accident occurs,the insurer obstructs the subrogation and the insurance accident occurs.After the insurance claims,the insured obstructs the subrogation.The last provision regulates the insured’s intentional or gross negligence to obstruct the subrogation in a general manner.In practice,the insured may also have the insured’s obstruction of the subrogation before the insurance contract is concluded and after the insurance contract is concluded.However,no legislative measures are given.On the basis of adhering to the "differentiation theory",we should do a specific analysis for each time period.The agreement between the insured and the third party before the insurance contract is concluded shall be deemed to be a disciplinary action,and the act of informing shall be used to regulate the behavior of the insured.This is confirmed in the Judicial Interpretation IV of the Insurance Law;After the insurance accident occurs,the insured’s obstruction of the subrogation will increase the notification obligation with the degree of danger,which can be used as a modification of the future insurance law;after the insurance legislation,the insured will obstruct the subrogation exemption before the insurance claims,Inconsistent with the needs of the insurance law practice,there are doubts in theory.In the future,the amendment may refer to the legislation based on the “mitigation of the degree of obstruction”;after the insurance claims,the insured’s obstruction of the subrogation act is invalid and does not take into account the insured’s failure.Knowing that the insurer has settled claims or is not aware of the situation of subrogation,it should be more refined in legislation and more scientific.