The Study On The Interest Protection Mechanism Of The Preserved Person In The Litigation Property Preservation Liability Insurance

The litigation property preservation liability insurance is adopted by the court as a methods of litigation property preservation guarantee.In order to fully protect the interests of the preserved person,the litigation property preservation liability insurance should hold the dual function of insurance and guarantee.The litigation property preservation liability insurance contract can fully reflect the insurance function,but can not bear the guarantee function.The insurance contract is subject to rescission,so it cannot satisfy the certainty required by the litigation property preservation guarantee.The legal rescinding right that insurance company enjoys has important function,so it cannot be restricted.Furthermore,if only the insurance relationship is considered,the preserved person cannot directly request the insurance company to assume the liability in the lawsuit of compensation for the wrong preservation damage.This is not in line with the litigation property preservation guarantee requirements,and is not conducive to the interests of the preserved person.It is difficult for the insurance contract to support the both functions of the litigation property preservation liability insurance.Insurance contract needs to be able to match the part of guarantee function to play a role together.The guarantee letter can carry the guarantee function of the litigation property preservation liability insurance.The interests of the preserved person can be fully protected by the guarantee provided by the guarantee letter.The guarantee letter involved in the litigation property preservation liability insurance belongs to the litigation guarantee provided by the insurance company in the normal operation and management.It has not violated the insurance company’s external guarantee restrictions.Moreover,it is also in line with China’s current laws and regulations to define guarantee letter as guarantee.The effectiveness of the litigation property preservation liability insurance contract and the guarantee letter is independent from each other,and the terms between them do not affect each other.The insurance company also has the space of agreement exemption clause and exercise legal rescinding right.As the litigation property preservation liability insurance needs to protect the interests of the preserved person,the insurance company,even if it does not assume the insurance liability,also needs to pay the loss of the preserved person first,and then recover the loss from the insured.However,the insurance company agreed in the litigation property preservation liability insurance contract to compensate the preserved person’s loss and then recover from the insured’s provisions are unreasonable.In liability insurance,under the condition of the existence of insurance liability,the insurance company’s recourse right to the insured has no theoretical basis.In the case of insurance liability,the insurance company’s recourse right to the insured has no theoretical basis.Insurance company does not need to gild the lily on insurance contract,and be persistent in letting insurance contract have guarantee function.The nature of guarantee letter is guarantee,insurance company can enjoy the recourse right to the insured according to the guarantee responsibility that assumes.The preserved person can choose to let the insurance company assume the guarantee liability or the insurance liability.In the action of compensation for preservation damage,the preserved person can require the insurance company to assume the guarantee liability,according to the guarantee letter and guarantee laws and regulations.When the insured is idle at exercise the right of insurance contract,the preserved person can require the insurance company to assume the insurance liability,according to the litigation property preservation liability insurance contract and insurance law regulation.But it is more advantageous for the preserved person to make the insurance company assume the guarantee liability.