Research On The System Of Subrogation In Financing Guarantee Insurance

As a basic system in the field of property insurance,insurance subrogation system plays an indispensable role in balancing the interests of the insurer,the insured and the third party.As one of the specific types of property insurance,the particularity of financing guarantee insurance is mainly reflected in the underwriting object,the identity of the parties,the purpose of the contract,the value function and so on.In view of its particularity,the subrogation system faces a series of difficulties in its application.This paper makes a specific study on the subrogation system in financing guarantee insurance,focuses on the differences between it and the general insurance subrogation system,and puts forward reasonable suggestions and measures to solve the above difficulties combined with the author’s work experience and shallow understanding.This paper is divided into six parts.The first part is the introduction.This paper briefly introduces the development status of insurance subrogation system and financing guarantee insurance,and leads to the related problems to be discussed in this paper.The second part is the subrogation in financing guarantee insurance.Firstly,it introduces the theoretical basis,development process and legal nature of insurance subrogation system.Secondly,it expounds the particularity of the financing guarantee insurance in the underwriting object,the identity of the parties,the purpose of the contract and the value function,and then points out the following application difficulties of the subrogation system in the financing guarantee insurance: first,the dispute over the legal attribute and application of the financing guarantee insurance;Second,the multiple identities of the applicant and the applicable objects;Third,the conflict of legal relations and applicable rules.The third part is the legal nature of financing guarantee insurance.First of all,we should accurately identify the legal nature of financing guarantee insurance.Only when it is identified as insurance,it is possible to apply subrogation in the field of insurance.As for its legal nature,there are insurance theory,guarantee theory,dual theory and new type of independent guarantee theory in theory,and there are also different understandings at the legislative and judicial levels.This paper proves it from three aspects: main function,legal nature and operation mechanism,and holds that it has a clear insurance attribute and should apply the relevant system of insurance subrogation.The fourth part is the multiple identities of the applicant and the application of subrogation.In financing guarantee insurance,the applicant is not only the party to the insurance contract,but also the debtor of the underwriting loan contract,but also the object of subrogation,which directly affects how to apply the subrogation system focusing on adjusting the damage of the third party.In this regard,the author discusses the following four issues:(1)from the perspective of the category of the third party,the principle of fairness,the function of insurance and avoiding moral hazard,the subrogation claim should be applicable to the applicant;(2)Although the adoption of the principle of no fault is a little harsh,it is inevitable that there will be omissions in the unified norms.No fault should be regarded as a general principle and the parties should be allowed to exclude it through special agreement;(3)Even if the applicant nominally conforms to the identity of the person with the same interest in general insurance,in view of the opposite position between the applicant and the insured in the loan contract,the subrogation claim should not be excluded;(4)The effectiveness of the notice shall apply to the applicant,reflect the protection of the interests of the applicant,and does not increase the burden of the insurer.The fifth part is the problems caused by the conflict of legal relations and the settlement mechanism.In the subrogation claim of financing guarantee insurance,the competition and cooperation conflict of various legal relations is more typical.This paper discusses the following problems caused by the competition and cooperation conflict :(1)in general insurance subrogation claim,the recovery object can claim the defense against the insured,but there should be restrictions in financing guarantee insurance,such as the applicant cannot claim the right of set off against the insured The agreed jurisdiction between the applicant and the insurer shall prevail;(2)Whether the third party can claim the defense of the insurer in general insurance subrogation is controversial,but in financing guarantee insurance,the applicant’s defense as a party to the insurance contract is in line with the theory of contract relativity;(3)In the insufficient compensation of general insurance subrogation,it is generally said that the theory of priority of the interests of the insured should be adopted,but the best way is to adopt the theory of equality in financing guarantee insurance.The sixth part is the summary.Summarize the main points in this paper.