The Research On The Insurer’s Exercise Of Subrogation Right To Policyholders

Whether the insurer can exercise subrogation right to the applicant is controversial.Article 8 of the Judicial Interpretation iv of Chinese Insurance Law,which was implemented in September 2018,stipulates that the insurer can exercise insurance subrogation right to the applicant.This is the first explicit provision in the Insurance Law stipulates that the applicant can be the subject of insurance subrogation,but this article does not have sufficient theoretical basis and cannot solve the existing problem that whether the applicant can be the insurance contract party as well as the third party of subrogation.The contradiction between them has caused new controversy because of the lack of rigor.This article analyses the application of this provision theoretically and practically from the judicial interpretation provision,the special legal status of the applicant,the purpose of insurance and the principle of justice,the imputation principle of the applicant and the insurer’s accounting duty.Expecting that can solve the problems of the legal application of the provision and propose corresponding countermeasures.This paper mainly selects the typical cases of cargo transportation loss insurance,which are controversial in practical operation,as research materials and support,and analyzes the application and operation of judicial interpretation provisions.In addition,the British Insurance Law,which is the origin of the subrogation system,and the insurance law of the civil law countries and regions that have been used in the process of formulating the insurance law in China are selected to analyze the problems in the insurance law of China and the problems caused by the subrogation system,the reasons and countermeasures to solve the problems.Firstly,through the analysis of existing legal provisions and cases,it is found that there is no theoretical basis the provisions of Article 8 of the judicial interpretation determine that the applicant can become a subrogation object without restriction.It is too harsh for the applicant to shoulder non-fault responsibility.If the insurer does not clearly state the exercise of the subrogation,it should bear the corresponding responsibility.Secondly,through the relevant cases and the legal regulations and practical operational experience of other countries and regions,it is found that the existing problems of the subrogation system in China are mainly due to the neglect of the basic concepts when the system is borrowed from different legal systems.The study of the rights and obligations between the insurer and the insured resulted in insufficient protection of the applicant’s rights and interests.The research in this paper finds that the reason why people dispute whether the applicant can be the object of insurance subrogation is that the subrogation system originated from the British marine insurance law applying the dichotomy.In the UK insurance law,the applicant is included in the concept of the insured.In the civil law countries,including China,the insurance subjects are divided into the insurer,the applicant and the insured by the trichotomy.On this basis,with the development of economic life,commercial transactions are more and more complicated,and it is not uncommon for the applicant and the insured to be the same person.However,the legislation and the judicial of the insurance law in China only focus on the rights and obligations between the insurer and the insured,ignoring the subject of the applicant.Embodying this problem by exercising the subrogation right without restriction to the insured.In order to solve the problem that the insurer’s subrogation to the applicant may result in the failure of the insured purpose and the insured person can’t actually get the payment,the paper proposes to improve the provisions of the judicial interpretation and pay attention to the future insurance law legislation.For the protection of the rights and interests of the applicant,the applicant shall use the existing system to protect his or her rights and interests in the practice.Only by paying attention to the balance of interests between the insured,the applicant and the insurer can the insurance industry continue to develop healthily.