On The Priority Of The Insured Under The Background Of Insurance Subrogation

The insurance subrogation system is a basic system of property insurance.Its aim is to safeguard the principle of compensation for loss and prevent moral hazard.However,under the background of insufficient property insurance,the amount of the insurer's claim is not completely consistent with the amount of the insured's claim against the third party.The payment of insurance benefits does not constitute complete compensation.The insurer's subrogation right against the third party conflicts with the insured's claim against the third party.However,Article 60 of the Insurance Law does not stipulate in detail the order of the insured's claim against the third party.In view of this problem,in the current insurance law theory and judicial practice,there are still three ways to deal with it,which are proportional and equal compensation,priority of the insurer and priority of the insured.This paper attempts to explore the legitimacy and reasonableness of the right of priority to repayment of the insured.The logic of this paper is as follows: First,the theoretical background is foreshadowed,the phenomenon of the conflict between the right of subrogation of the insurer and the right of claim of the insured is introduced,then the causes of this phenomenon are analyzed,and then several solutions to this conflict phenomenon are analyzed under the existing legal framework.Finally,the rationality and feasibility of the mode of priority to repayment of the insured are elaborated.The first chapter summarizes the conflict between the insurance subrogation right and the sequence of the insured.Paragraph 3 of Article 60 of the Insurance Law of the People's Republic of China provides that "the right of the insurer to claim for indemnity by subrogation in accordance with Paragraph 1 of this Article shall not affect the right of the insured to claim for indemnity against the third party for the part not compensated for.This article only reiterates that the insured's right of claim is not affected by the insurance subrogation and does not stipulate the exercise sequence of the insured's right of claim and the insurer's right of subrogation in essence.Finally,this chapter from the full and insufficient insurance contracts,tangible and intangibleproperty insurance contracts,the four types of insurance contract compensation sequence conflict phenomenon.The second chapter analyzes the deep reasons of the conflict between the right of subrogation and the right of the insured,and introduces and evaluates the mode of solving the conflict.In China's Insurance Law and the current insurance law theory system,the theory that the insurer obtains the insurance subrogation right is based on the theory of the transfer of statutory creditor's rights.Thus,originally the rights of the insured against the third party were divided into two parts by reason of insurance subrogation: one part was obtained by the insurer due to the transfer of statutory creditor's rights,and the other part was obtained by the insured against the third party due to the original right of the third party to claim damages.The two rights are of the same origin,so when the insurer and the insured simultaneously claim rights against the third party,there will be a sequence conflict.In view of this,our country has not yet formed a unified and effective solution model,and the settlement mechanism of the conflict between the two rights is not mature enough,which intensifies the contradiction between the insured and the insurer.This chapter will summarize five solutions to the conflict between the two rights in combination with the theoretical system and judicial practice at home and abroad: the equal compensation model of the insurer and the insured,the independent compensation model of the insurer,the independent compensation model of the insured,the priority compensation model of the insurer,the priority compensation model of the insured,and then analyze the application and content of each solution model in detail,and compare the advantages and disadvantages.The third chapter discusses in detail the rationality and the construction measures of the priority of the insured.This chapter from the legislative basis and judicial jurisprudence to discuss the rationality of the priority of the insured,and finally put forward detailed suggestions to improve.The first section elaborates the theoretical basis of the priority of the insured,including the value of modern insurance,the negativity of the right of subrogation,the view that subrogation should not harm the original creditors,and then analyzes the adoption of the mode of priority of the insured in the countries of the civil law system,thus demonstrating thenecessity of confirming the priority of the insured through legislation;the second section enumerates the typical cases of priority of the insured at home and abroad,proving that the priority of the insured at home and abroad has precedents and is feasible.Finally,in view of the above conflicts,the author puts forward specific measures and ideas to solve the conflict of the two rights and ensure the full compensation of the insured.