Research On The Participation Behavior Of Liability Insurers In Infringement Litigation

In China's liability insurance,the injured third party usually initiates the tort action against the insured in order to obtain the damage compensation,and the insurer will pay the insurance money to the third party after the lawsuit determines the liability for damage compensation.Therefore,the claim of liability insurance relies on tort action,and liability insurance has a natural "parasitism" to "tort action".Adhering to the relativity principle of debt,the liability insurer only "passively" waits for the judgment of the court or the three parties' negotiation to determine the liability for compensation in China.There is no legal provision for them to participate in.However,when the insured suffers from the pain of litigation,the insurer often does not recognize the judgment without participation or the settlement without consent.The long overdue,which is extremely unfavorable to the insured and the injured third party.Nowadays,as modern liability insurance develops,its coverage not only including the obligation that the insurer has to fill the loss to the insurant,but also the process that handles the third party claim for compensation and the cost that produces and expend etc after the third party puts forward the right of claim for compensation to the insurant before liability is confirmed.The mode of defense obligation represented by Germany and the United States stipulates that the insurer has the obligation to negotiate settlement with the injured third party on behalf of the insured and participate in the lawsuit for attack defense.In this way,on the one hand,the relativity breakthrough of debt in substantive law made the injured third party "face up" to the insurer,making the insured get peace of mind from burdensome litigation.On the other hand,providing a basis for the binding force of liability relationship on insurance relationship in the procedural law provide,the insurer will accept the result of this procedure and will not go back on its word,so as to facilitate the one-time settlement of the dispute.Accordingly,afore-mentioned development trend of "lawsuit insurance",the insurer moves from "behind the scenes" to "before the stage" participate in tort lawsuit procedure and control the lawsuit,also has the obligation that assists or replaces insurant to undertake defending.The tripartite relationship is simplified to a certain extentand the separation principle is eased,so it is especially important for the insured to obtain the right protection and the insurer to control the damage scope.Through literature analysis,comparative analysis,empirical analysis and other research methods,this paper clarifies the legitimacy,nature and litigant subject of the liability insurer's participation in tort litigation,in order to improve the theoretical level of China's modern liability insurance legal system,and promote the improvement of relevant legislation.Drawing lessons from relevant foreign legislative experience,aiming at the current situation and problems of our country,this paper probes into and perfects the participation of liability insurers in tort litigation from three aspects.Firstly,the liability insurance isbased on the "separation principle" theory has lots of disadvantages,which should be alleviated.Modern liability insurance requires the insurer to directly intervene in the liability relationship to participate in the lawsuit of infringement,we can find justification from benchmarking of liability relationships of the substantive law and the procedure safeguard theory of the procedural law.Secondly,the function of modern liability insurance has two-sided protection function,which can be realized from the different nature of the rights and obligations of litigation participation.China's legislation should learn from the defense obligation model and take the nature of obligation as the leading factor to amend the lawsuit participation.Finally,the realization of liability insurer's participation in litigation is closely related to its role in litigation procedure in procedural law.The status of third party and agent in litigation can not reflect the connotation of modern defensive obligations.Only if the insurer obtains sufficient litigant status and rights through insurance contract agreement based on the requirement of legal defense obligation can he meet the requirement of "litigation insurance" and have legitimacy.