Research On The Allocation Of Insurance Subrogation Income Under The Condition Of Insufficient Compensation

If the tort liability system is the basis of the modern damage relief system,the insurance subrogation system is the key method to regulate the parallel payment in the victim damage relief system.In a risk society,a reasonable relief system requires neither compensation for the victim nor compensation for the victim.The insurance subrogation system can avoid multiple payments for victims and guarantee their losses.If the insured’s claim for compensation and the insurer’s subrogation rights are combined with the insurance compensation,the third party’s liability and the solvency,the insurer usually uses the dominant position to "first come first served" to make the third ’s all compensation is attributed to it,resulting in an unbalanced distribution of interests among the parties.Therefore,in the case of insufficient compensation,the income of the insurance subrogation should be re-allocated,thus creating a problem of the allocation of the subjects.In this regard,China’s insurance legislation does not clearly stipulate and the relevant research in the theoretical circle is still in an intuitive and superficial position.There is no systematic and solid solution for making in-depth and solid arguments.Therefore,through the use of literature analysis and comparative method,taking the reason of the lack of insurance compensation as the entry point,based on the full understanding of the foreign legislative system,combined with the views of Chinese scholars,the research on the processing mode of the allocation of insurance subrogation and damage compensation under the condition of insufficient compensation and exploring the general rules and exception rules for the allocation order,in order to help to properly solve the problem of the allocation of insurance subrogation rights and the insured’s claim for damages,and to open up the new ideas of eff-icient operation of the victim damage relief system.First of all,it discusses the conditions for the occurrence of the distributive order in the income of underinsurance subrogation.From the perspective of the parties themselves,inadequate insurance compensation is the premise,coupled with the third party is not responsible for all the compensation or the third party solvency is insufficient,which leads to the right of subrogation of the insurer and the insured’s right to claim for damages at the same time competing with the third party,and then leads to the problem of distribution sequence.Simultaneously,article 60 of the insurance law does not clearly stipulate how to distribute the subrogation income in the case of insufficient insurance,and the loopholes in the legislation also deepen the problem of the distribution order of the subrogation income in the case of insufficient insurance,which can eventually lead to the imbalance of interest distribution among the parties.Secondly it analyzes the specific mode of the distribution of income by subrogation of insurance and demonstrates the general rule of the subrogation mode--the rationality of the priority of the insured.Firstly,the author explains three modes of compensation from the perspective of comparative law and theory:the insurer’s priority,the insured’s priority and the proportion of compensation.Secondly,the thesis demonstrates the rationality of the priority of the insured and the irrationality of the priority of the insurer and the proportion of the priority.At last,it analyzes the exceptions to the distribution order pattern of underinsurance subrogation income.Under normal circumstances,the priority of the insured should be taken as the principle,but in the case of special law or reinsurance,other modes of compensation should be allowed to apply according to the exceptional circumstances.This chapter firstly refutes the general view that"the parties agree",and puts forward that the principle of priority of the insured to be compensated should be prohibited.Secondly,the author restructures the exception rule and proposes that the principle of proportionate compensation should be adopted when the income distribution of subrogation in reinsurance is insufficient.