The Liability Of The Liability Insurer In Multi-party Tort

There is no doubt that the insurer shall be liable for the insured's liability to the victim where the insured of liability insurance is the sole infringer in a dispute over the liability for motor vehicle traffic accident.However,it is likely that the insured is not the sole infringer in practice.Instead,the insured in liability insurance may constitute multi-party tort with others.How should the several infringers assume the tort liability under this circumstance? Furthermore,if the insured herein shall be liable jointly and severally with other infringers according to the court decision,how should the insurer assume the insurance liability? These issues have been controversial in theory and judicial practice.Whereas these outstanding issues,the Supreme People's Court issued the Interpretation(IV)of the Supreme People's Court on Several Issues concerning the Application of the Insurance Law of the People's Republic of China in July 2018,hereinafter referred to as Interpretation(IV).Article 16 hereof clarified the liability rules of the insurer where the insured commits a tort jointly with other infringers: where the insured in liability insurance assumes joint and several liability for the joint tort in accordance with the law,and the insurer refuses to pay the indemnity on the ground that the liability for the joint tort exceeds the share of liability that shall be assumed by the insured,the people's court shall not support such a claim.The promulgation of such a provision contribute to the unification of the standard to settle relevant law cases to a certain extent,but there are still several issues that have not yet been clarified: first,whether Article 16 hereof can be applied to situations where the insured of liability insurance shall assume joint and several liability not for the joint tort in accordance with the Tort Law,but for other forms of multi-party tort;and second,could Article 16 be excluded by agreement between the parties in the insurance contract?This dissertation attempts to elucidate the system of multi-party tort by examining the evolution of relevant laws and judicial interpretations,combing and analyzing the decisions of different courts.And it holds that joint and several liability shall not only apply to joint tort,but also be possible to apply to the case of separate tort,collective dangerous conduct and uncertainty of respective portion in multiple infringers.In addition,the liability of the insurer in liability insurance is clarified on the basis of definitude of the liability of the insured among several infringers.In consideration of the existence of the “indemnity in accordance with the portio” clause in the contract of commercial third-party liability insurance of motor vehicle,Article 16 of Interpretation(IV)shall be reviewed.It is more reasonable that the insurer shall not refuse to pay the indemnity on the ground that the liability exceeds the share of liability that shall be assumed by the insured,where the insured in liability insurance shall be liable jointly and severally due to multi-party tort in accordance with the law,unless otherwise specified in the insurance contract.That is,in the event that the insurance contract has no such similar clause or the clause hereof is not clear,the liability insurer shall compensate the insured for the joint and several liability,but if the insurance contract clearly stipulates a “indemnity in accordance with the portio” clause,which is fully informed,such clause shall be valid and the insurer only needs to pay for the internal liability that shall be assumed by the insured.This dissertation includes five parts,including the conclusion:The first part starts from two different cases,to show different courts' decisions of joint tort vary a lot in judicial practice,and there are different opinions on whether the insurer shall refuse to indemnify the joint and several liability exceeds the share of liability which shall be assumed by the insured.And the Interpretation(IV)has only been issued for a year and a half,which seems not receiving sufficient attention.Therefore,it is very necessary for research.The second part sorts out the evolution of relevant rules of the liability of insurer in liability insurance referring to multi-party tort,and briefly introduces the definition of joint tort in judicial practice,the ratio decidendi for joint and several liability,and diverse opinions of the liability of the insurer in commercial third-party liability insurance.The third part explains various theories of the system of multi-party tort,not only the types of tort,but also the forms of liability.Then try to build a clearer system of multi-party tort on the basis of analysis,reference and criticism of such theories.Furthermore,illuminate that joint and several liability shall be the logical starting-point of the liability of insurer herein,rather than joint tort.The fourth part is the most crucial part in this dissertation.Based on the introduction of the academic debate on whether the insurer in commercial third-party liability insurance shall pay for the joint and several liability of the insured,analyze the nature of the “indemnity in accordance with the portio” clause and hold the view that Article 16 of the Interpretation(IV)shall be construed as random norm.In the event that the insurance contract is not explicitly agreed,Article 16 shall be applied,however,where otherwise provided in the contract,the insurance coverage shall be pursuant to such contract.For instance,if the contract clearly stipulates that the insurer shall only pay for the proportion of liability which belongs to the insured,the insurance coverage shall be limited to such proportion,and the part of joint and several liability which exceeds the foregoing proportion shall only be recovered from other infringers.The fifth part is the conclusion.Based on a brief introduction and different stance pertaining to Article 16 of the Interpretation(IV),this dissertation holds the opinion that Article 16 hereof shall apply not only to cases where joint and several liability is incurred for joint tort,but also to cases where such liability is incurred due to other forms of multi-party tort.In addition,it is worth considering whether this provision shall be a random norm which allows both parties of the insurance contract to agree to exclude its application.