Legal Research On The Defense Liability Of Insurer For Liability Insurance

Article 65,paragraph 4,of the Insurance Law of our country stipulates: "liability insurance refers to the insurance of the subject matter insured by the insured against the third party in accordance with the law." In combination with the specific provisions of article 65 and the arrangement of liability insurance in the insurance contract part,it can be seen that the nature cognition of liability insurance in China is still in the stage of negative property insurance.This perception has been unable to cope with the difficulties of insurance practice.In liability insurance policy,the insurer is usually given right of final approval for the reconciliation of the compensation.The right is legitimacy(preventing insurance fraud),but when lacking of defense obligations,the insurer can hide behind the dispute settlement and control their risks.At the same time,the costs and risks would be passed on to the insurant.Eventually rights and obligations are imbalance.Owing to the period of "indemnity insurance" of the liability insurance,the insurer do nothavetheburden of defense.The development of the theory of insurance accident of liability insurance makes the defense obligation develop.Because of the traditional theory of " Responsibility determination says" and "Actual damages says" are unable to cope with risk characteristics of liability insurance.In Germany,France,Japan and China "Taiwan" area gradually established the theory of "request says" that means the insurer began to assume responsibility when insurance accident victims request insurant.It makes the function of the liability insurance enlarge.The subject of insurance expands from pureproperty interests to the spirit interest.Therefore,the two functions of liability insurance are derived,which include both the loss filling function and the right protection function.The insurer notonly should compensate the insured liability losses due to legal liability,but also actively assist the insured to defense for the claims of third parties.So that the insurant can free from the claims of the third person,and keep quiet state of mind.In the first chapter,the author thinks that the establishment of "the request says" originates from the advantage oftheory."The request says" makes the insurance accident ahead of time,providing the logical consistency of the theory of insurance law to let insurer assume obligations.Only when insurance accident occurs,the insurer began to bear the main responsibility.There is no obstacle in theory,and because of the "the underwriter" clause,so defense obligations is necessary to balance the rights and obligations and occurs reasonably.In the second chapter,the author analyze the start rule of defense obligation systematically.On the one hand,the author analyzes the existing point of view,and on the other hand,the author discussed thequestionby a variety of situation,and extract common factor to come to the conclusion,and ultimately determines the "possible fact" rule that as long as the victim filed a lawsuit to the insurant,the insurer ought to provide defense,whether for litigation falls within the scope of cover,until it can confirm the fact that can't be completely belongs to coverage,if this matter does not belong to coverage,the obligation to defend is out of range for insurer,the underwriter can quest insurant return the associated costs by the rule of unjust enrichment restitution,if the insurer violates this defense obligation,the insurer shall bear the legal consequences of violating the defense obligation.The legal consequence of breaching defenses should be punitive,after the comparison of three different legal consequences,the author thinks that if the insurer violate the obligations,he need to bear the legal consequence of losing the right to defense the coverage.,The author analyzed two kinds of special problems for the expiration of the defense obligation rules.First of all,when the facts do not belong to the coverage,the insurer may terminate the defense,unless termination of the behavior will causeserious damage to the insured.Second,the insurer's obligation of indemnity is only under the premise of eliminating the right of claim of the victim,so that it can not perform the defense obligation,otherwise the compensation obligation and the defense obligation will not interfere with each other.In the third chapter,the author divides two levels to discuss the cost of defense.When defense cost is allocated between the insurer and the insured,carrying out the "possible fact" rule,the underwriter could quest the insured return the unnecessary cost,unless the part is an indispensable part for defense.When defense cost is allocated between the insurer,we should comply with the direct interpretation of policy first.If the interpretation is contradictory,we should determine the first line of responsibility by comprehensive judgment factors.The factors includes insurance purpose,maximum risk of loss,insurance premium and others.In the fourth chapter,the author analyzes the agent cost problem that is derived from insurer replacing the insured,and reveals the incomplete transfer of the risk is the root cause.The author thinks that we can use the relevant system of company law to enhance the cooperation obligation of the insured,the protection measures of the insurer and the loyalty obligation of the insurer and the defense lawyer to the insured.The fifth chapter,the author embarks from the existing law and use the method of hermeneutics to reveal the lack of the defense obligation in our country,and in the second part,the designs of China defense obligation system are put forward based on the comprehensive research achievements of the above chapters.