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Study on Concurrence of Insure’s Subrogation and Insured’s Claim

Author: XuShuJie
Tutor: LiBin
School: Nanjing University
Course: Legal
Keywords: Insurance Subrogation rights Claims Insurance competing
CLC: D922.284
Type: Master's thesis
Year: 2011
Downloads: 102
Quote: 1
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Abstract

In recent years, China's insurance industry claims disputes and disputes, the insurer's right of subrogation and the insured damages victimization third party claims often conflict. 2009 revised Insurance Law Article 60 of the subrogation rights of the insurer and the insured the right to claim damages when competing exercise did not make specific provisions and procedures. In such cases, should give priority to the protection of the insurer's right of subrogation, the insured does not get the part of insurance claims losses should be compensated first? Or they paid in proportion? Theorists and scholars have different views, and insurance practitioners also practice different. In view of the theory of the balance of interests (to protect the weak), most scholars and judges to take the insured priority principle. However, many scholars put forward the opposite view, and the specific analysis and argumentation. Diverse and numerous theories and insurance practice inconsistent approach the judge at a loss when the applicable law. How to Insurance Law Article 60 applies specifically to how judges should interpret the law, justice, and correct handling of the case has forced the problem to be solved. Paper is divided into an introduction, body, Conclusion three parts, in which the body of four parts, the main contents include: article first case on competing insurance subrogation regime applies; first part describes the subrogation rights of the insurer and the insured seeking conflicting theoretical basis of compensation rights, including insurance theoretical foundation and civil law theory foundation. Author from the point of view of scholars have proposed, doctrine, and combined with the theory in civil law claims, benefits measure theory, to review the fairness and reasonableness of the different perspectives of controversy; second part of the article is a brief summary of the subrogation rights of the insured and the insured damages request the right type of competing, divided into of underinsurance competing and underinsurance competing mainly based on the competing conditions; Part III analyzes how to exercise the right of subrogation shall be under the full insurance and underinsurance conditions and recourse. Insurers and by balancing the interests of the insured, underinsurance conditions shall adopt the principle of priority of the insured, underinsurance principle of proportion to the repayment of debt; Finally, by analyzing and comparing foreign and our insurance subrogation claims legislation and practice of the system proposed are two suggestions for improvement to increase competing Terms included in the \The intent of this article the author studies the insurer subrogation rights and claims of the insured through the analysis of specific rights when competing approach and Insurance Practice, to solve the problems in the judicial practice, to summarize and insurance legislation, judicial and The program put forward corresponding suggestions for improvement. In short, with the development of the insurance industry, the insurance company is increasing emphasis on the right to subrogation exercise will pay more attention to the conflict in the applicable process. However, compared with developed countries, China's Insurance Subrogation system theoretical research is not in-depth, on the right of subrogation legal system is not perfect. Insurance business, the development of the insurance industry in our country have been shorter, relatively backward business practices and lack of maneuverability, needs to be more attention and research academics and practitioners. By discussion of the relevant issues in this article, I hope to play a valuable role, lead to more thinking, and to promote the development of related systems.

Study on Concurrence of Insure’s Subrogation and Insured’s Claim

Abstract

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