Subrogation of Insurance on the legal basis and scope of (the)

Keywords: insurance subrogation / function / nature / scope of

Summary: insurance subrogation right has three interrelated ontological function, namely to prevent the insured person to obtain a double payment, to avoid liability for damages and help people escape liability insurers to reduce premiums and to maintain normal operations. On insurance subrogation of the nature of China's insurance Law should adopt the statutory debt transfer theory, rather than procedural subrogation theory, the insurance subrogation should apply by compensatory insurance and payment insurance distinction and delineation <<Insurance Law>> amending the Law The ultimate goal should be beyond the scope of property insurance, but the insurance subrogation in compensatory accident and health insurance should be put on hold in the extension application.



Third, insurance, the scope of subrogation

Old <<Insurance Law>> 68 to the new <<Insurance Law>> 46, negative Life Insurance covered by insurance subrogation content does not change. For the insurance subrogation scope of China's insurance legislators stubborn and Insurance Law scholars have criticized the formation of sharp opposition. I can not help but ask, insurance subrogation practice in China really simply not been effectively implemented, and can narrow the scope of the implementation of it?

(An expansion and retreat: insurance subrogation dispute over the scope

For insurance, the scope of subrogation in Germany <<Insurance contract law>>, based on Article 86 on insurance subrogation provisions in Chapter II, "insured losses", [1] is generally believed that it applies only to loss of insurance ( schadensversicherung, does not apply to a fixed payment of Life Insurance (summenversichrung. The reason is loss of insurance, the insurer's payment obligation is based on a range of specific losses as a guide, in this case, the insured is only on its actual losses to be filled, while the fixed payment of Life Insurance, the insurer's obligation to pay does not depend on the actual insured losses, but on an insurance contract in the agreed fixed premium. [2]

However, in some other Life Insurance types of contracts, the insurers obligation to pay range depends on the specific number of insured losses [3] For example, Article 192, paragraph 1 to paragraph 3 of the Medical Expense Insurance (krankheitkostenversicherung and 194, paragraph 1, item 1 of the private care cost insurance (private pflegekostenversicherung. For these types of insurance, according to Article 194, paragraph 1, item 1, as long as these types of insurance in the insurer's payment obligation is based on the basic loss insurance principle that the payment obligations of the range to a specific loss for the guide to determine the first 86 of subrogation can be applied, but for in Article 192 of the first S models specified Krankentagegeld (ie due to disease, suffer income compensation for loss, and Article 192 paragraph 4 of Krankenhaustagegeld (ie non-statutory health insurers are assumed, by accepting doctor treatment and use of single or double room and the additional costs of compensation, as are for certain types of damage, nothing to make up (that number does not depend on the size of the actual loss or expense does not apply to subrogation, the insured person's liability for damage claims for damages remain in their own there. [4] shows that German scholars basically agree that Life Insurance can be further divided into compensatory payment of life insurance and life insurance for compensatory personal insurance, full insurance, subrogation may apply [5]

Anglo-American law, German law with the mainstream view is basically the same, namely to determine whether different types of insurance contracts covered by insurance subrogation of the insurance contract is based primarily on whether compensatory contract. [6] property insurance and liability insurance has a strong compensation nature, generally allow the insurance subrogation rights apply. obviously do not have life insurance due to the existence of compensatory and not the insurance subrogation. As in between the two accident insurance and health insurance, the court based on different types of insurance whether found to have compensatory judgments. [7] Tong said the approach of the U.S. theory and practice there are two other diametrically opposed to each other's attitude.

Anglo-American law the statutory right of subrogation, but also recognize the subrogation agreement, which is indirectly recognized by the insurance contract between the parties agree to extend the terms of the subrogation right of the scope of the insurance the insurance company initially paid little attention, then with the insurance applications led to the growing number of cases of multiple Medical and hospital expenses get paid. and some types of insurance rates and rising losses brutal price competition makes the insurance companies began to seek a way to reduce costs to losses for the profit the insurance subrogation to expand in scope and efficiency of the exercise that is more active of such methods. So the insurance company may agree to continue the insurance through the subrogation of insurance in life insurance in the expansion [8] Some scholars that the insurance subrogation can be applied to any kind of insurance, including life insurance. [9] The reason is that "compensatory contracts" and "payment of the contract" concept itself has a certain ambiguity as a way to distinguish is inherently flawed. Another way is a higher degree of accuracy of specific kinds of insurance contracts are classified as not covered by insurance with the right of subrogation, but some insurance is difficult to determine the edge, such as the sea or some value fire insurance, especially those valued by the contract terms set deliberately low value of the insurance marine insurance, whether covered by insurance subrogation is questionable. Moreover, even for most types of insurance, the results seem clear just and although the life or physical property is easier than with money valuation, but is not designed for life insurance is almost difficult to determine the value of the loss of the remedy, but the corresponding economic loss compensation and the underlying assumption is that this type of insurance compensation and loss, although no precise equivalence between the relations, but is indeed a real compensation for economic losses suffered, compensation has the typical characteristics of this point in the commercial life insurance (such as employers' insurance, particularly reflected in the contrary pets and collections oil loss will be far more of its economic interests, this is the appropriate property insurance can not be completely compensated [10] Furthermore, although life insurance is generally believed that even if the liability for damages from the insurer and the person to receive compensation at all, but also may not be sufficient to meet the interests of victims or the needs of people to bear, but the fact that in Medical or hospital expenses insurance may not only sufficient but also repeat the compensation if injured on the workers in the United States not only by the protection of workers' compensation laws, but also by the Medical and hospitalization services programs or commercial insurance compensation, and may even have liquidity or from the infringer obtained the insurance compensation in similar circumstances, the insured is likely to get adequate compensation for moral damage, and get on the repetition of the economic loss compensation. [11] scope of the insurance subrogation expansion can eliminate duplication of compensation.

At the same time, some scholars believe that the insurance subrogation for compensatory personal insurance is tantamount to opening a full management and practice math problems without a "Pandora's box", insurance subrogation shall be limited to the property insurance applies. [12] Initially, the objector, the insurance subrogation in personal injury to be applied in the complaint will result in conflict with two principles of common law, namely, the personal injury complaint against the transfer of public policies and causes of action split ban, which now appears to have become in less than convincing. Now the main opponents of that one, in the case of compensatory life insurance, prohibit insurance subrogation and does not cause the insured to obtain a double payment, and allow insurance subrogation is likely to hinder the insured person to obtain full payment. Compensation of life insurance may not have full insurance, full insurance, even in the case, for the person suffered mental and physical damage, such insurance is irreparable. Not only that person from liability for damages obtained all compensation is almost difficult to make the insured person (the victim received full compensation. The reason is that if you choose reconciliation tend to compromise on the amount of compensation, and if the case through litigation, will share the responsibility because there is a dispute, responsible debt lack of capacity to compensate for certain losses or no legal basis for future loss of damage sustained may be ignored and other factors that cause actual compensation inadequate. Moreover, the insured person charged high legal fees after the cost of litigation will be the net amount of compensation will be less. [13] Second, the compensatory life insurance in Insurance Subrogation in fact will damage the insured's liability to the third and the insurer's ability to claim the insurance subrogation to exercise the right to intervene in the insurance liability of the insured person may appeal the third person, that exemption can not be completely responsible for the settlement with the insured person wishes to reduce and delay the litigation process. and the existence of the insurance subrogation of the insurers have made the victim incentive to delay their payment, and hope to start against the victims who obtain payment. [14] Missouri and Arizona and a few state courts generally follow this advice. [15]

(Two temporary closing Pandora's box: insurance subrogation the determination of the scope

Insurance subrogation and loss fill the principles are closely linked, is the loss of specific institutional level to fill the principles reflected in one of the insurance subrogation, the primary function is to avoid double payment by the insured person to obtain, if not compensatory insurance, simply does not matter if the dual paid at all. applicable to the insurance subrogation to the basic standard is that the insurance is actually part of compensatory insurance, without insurance, the subject in its specific type of compensatory payment of insurance and insurance concept itself is clear, between boundaries are clear. In fact, two types of insurance payment have taken place, but one based on the actual amount of the loss, a loss is not rigidly adhere to a pre-agreed amount under the contract, and depends largely on the insurance person's ability and willingness to pay.

Were not only in the abstract level is not difficult, but also in the sorting of specific insurance products is still the case. First of all, property insurance is the most typical compensatory insurance in Germany, the loss insurance (also including maritime transport insurance, almost all of the standard policy terms is designed to be an unvalued policy, rather than setting policy. [16] even if the value for the Anglo-American countries, sea or fire insurance, the insurance value is different from a fixed payment insurance, fixed value terms is merely a damage settlement terms is to facilitate the actual operation, the policy does not change the basic characteristics and properties. [17] value is to determine the insured value, insurance value only in compensatory insurance, the insurance value of the contract must be based on the true value of the underlying insurance as the basis, and shall not exceed too much. The reason why some marine insurance in the insurance value significantly underestimated, because the risk profile of the sea than on land is more complex and difficult to check on, in order to prevent the occurrence of moral hazard and deliberate. visible value property insurance policy does not change the fact that part of compensatory insurance, property insurance should apply to the insurance subrogation. Secondly, the need to compensate the insured, by their nature can be divided into concrete and abstract nature of compensation requires compensation needs. Life Insurance , even if it is a commercial life insurance, if there is "compensation" feature, then the compensation is abstract rather than specific compensation or loss of fill. and the payment of life insurance policyholders will also depend in part on the subjective sub-factors, with compensation damage insurance in the given set of objective criteria clearly runs counter to pay. not to mention the existence of a specific life insurance needs of family members only with abstract emotional interest, without a specific economic interests. must be fixed payment insurance, life insurance, also bound not applicable insurance subrogation.

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Is undoubtedly the most controversial accident insurance and health insurance with the attitude of Anglo-American law in this complex and wavering position is different in German law, accident insurance and health insurance issues does not seem difficult in the old German < <Insurance contract law>> does not regulate health insurance, when each person's insurance policy and standards in terms of (the general policy conditions [18] which will be clear that health insurance is compensatory, which is paid in nature. [ 19] and so decided to apply the insurance subrogation by the above we can see in the new <<Insurance contract law>>, the specific accident and health insurance varieties are categorized, whether permitted the insurance subrogation glance. In view of against the above point of view, for accident and health insurance in the insurance application compensatory subrogation, highly controversial, however, I believe that the right to identity, personality and power itself, although not so, but because of its claim for damages against the born right, in principle, have to make and is prohibited the transfer of personal injury causes of action policy originated in the early 20th century low-cost position of vulnerability lawyers purchased the right to appeal from the victim, but the public policy reasons now quite far-fetched in the subrogation demand compensation cases, the insurer is not in the purchase of the insured person's right to appeal, of its cheap, but was asked by the insurer to exercise the right to appeal, claim damages. [20] cause of action has long been divided against claims for and the generally recognized by the break. The damage to the insured's liability to the third and the ability of the insurer claims the problem, not just accident and health insurance in compensatory insurance, any applicable insurance subrogation insurance needs face. and careful study we can see, insurance subrogation to exercise one of the prerequisites is that insurance reimbursement, if the insured person first and third claims settlement is possible and effective, insurance subrogation are they did not produce and a third person without the buck its total cancellation of third party liability, the insurer no longer bear the liability insurance, partial exemption, the insurer is reduced accordingly proportionate liability in addition the insured can not claim first third , while the straight require insurers to pay insurance premiums, the insurer has no reason to delay their payment, and attempt to start against the victims who obtain payment if insurance can be fully compensated, was the third person insured can no longer request compensation, which is any action against the third act is invalid, the third in consultation with the people who will not, if not fully compensated, was the insurer's remaining claim of the complaint, there may have been the insurer's subrogation right to intervene . based on legal knowledge, a party shall not prejudice the exercise of the right to exercise the other party the right to then delay the insured and the third settlement or litigation process, help maintain the interests of the insured and the insured will not actually cause much prejudice , are indeed legitimate. As a result, the insurance subrogation did not damage the insured's liability to the third and the insurer claims the ability look at the insurance subrogation hinder the insured to obtain full payment concerns, as long as the compensatory life insurance to adhere to and implement the full repayment of the principle of the insured (the "Make Whole" principle, this problem will be solved. In addition, some accident insurance and health insurance losses includes both the payment and fixed payment terms . The preferred approach is able to distinguish, according to the distinction to, can not distinguish between, and tend to favor the insured, the insurance denied the right of subrogation applies to the entire policy in the in the country, insurance subrogation should not be allowed by the insurance to extend the terms of the contract.

In summary, Two Schools of insurance and pass that compensatory payment by the division of insurance to distinguish specific types of insurance applicable to the insurance subrogation, not only in reasoning logically self-consistent, but also in the insurance practice is feasible <<Insurance Law>> amending the law of the ultimate goal should be to go beyond the property insurance context, to achieve the insurance subrogation in compensatory accident and health insurance in the application, but there are still issues worth further exploration, that is, "is full repayment of the insured person "principle to determine the standards and implementation possible. Despite this principle is to pass that in Germany [21] is also in most common law doctrine, but in the United States is still met fierce opposition, but some people think that it is popular unfounded theory, [22] and made a priority, said the insurer and the insured and the insurer said the repayment ratio. [23] In addition to this problem lies in the principle of the specific operation the insured what is a "complete repayment. "This requires the individual merits of different analysis, but also may lead to collateral litigation on this and many follow the rule of the U.S. state court does not really make full repayment of the insured, such as, for easy operation, love the Netherlands China has listed the state only needs to make up for the loss of a particular can be seen as full repayment. [24] mention that the compensatory more difficult to determine personal insurance in compensatory life insurance, the insured can request insurers to pay for expenses caused by the incident, but may not fully compensate for the loss, the spirit of interest necessary to compensate for the damage, but also the potential to cause damage or sustained, how should this full compensation assessed? especially in China's welfare system is not a healthy situation, particularly, are very difficult to completely compensate for the excess payment even if the other side of the myth because of the potential victims of consciousness and the ability to buy the insurance to buy low and often inadequate and against the people solvency rarely have liability insurance protection, the insured when the accident occurred is often difficult to be fully paid. personal injury, often related to social insurance, damages may be the standard in this country very low, the amount and payment of social insurance on the basis of this re- much lower, even if the victims of injuries and diseases such as access to social insurance, full payment, are mostly inadequate. American and European countries, wide coverage, multi-level, high standards of insurance and social assistance for victims of the formation of perfect relief system, yet on Insurance subrogation for compensatory personal doubts about insurance in our country such a grim reality, the expansion of the insurance subrogation applies should hold, so as to prevent the victims of the weak claim to the right even worse. Pandora's box both hope and opportunity, but also hardship and disaster, and only really prepared for it all to be able to open. No matter how the intention of China's insurance legislators, scholars in the country sound of overwhelming criticism, insisted in the accident and health insurance in the caution position of the insurance subrogation, is worthy of an insurance subrogation insurance legislation in China have to be on multiple and extended to the full protection of the victim to build, and fully compensate the insured's truly implement the principle of after.





Notes:
[1] VVG '86 (Ubergang von Ersatzansprtichen.

[2] See Beckmann / Matusche a Beckmann / Brommerlmeyer, Versicherungsrecht a Handbuch, 2. Auf. '22, Rn. 9 a l00
[3] See Albert Ehrenzweig, Deutsches (osterreichichisches) Versicherungsvertragsrecht, 1952, S.437 a 438.

[4] See supra note [2], Beckmann / Matusche a Beckmann / BrSmmerhneyer, p. 22, 11 a side yard 13.

[5] Vgl. Karl Sieg, in Bruck an Moller, Kommentar zum Veisichertngsvertragsgesetz, 8 Auff., Bd. II, Liefernng 2c, 1970, 67,5.713; Erich R. Prolss, Veisicherungsvertragsgesetz, 17 Auff., 1968,5.320 a 321 .

[6] See Ronald C. Horn, Subrogation in Insurance Theory and Practice, RD Irwin, 1964, p. 27.

[7] See [United States] Robert H. Jerry, Douglas R. Richmond: <<U.S. Insurance Act fine solution>>, Li Yan translation, Beijing University Press, 2009 edition, p. 102.

[8] See Spencer L. Kimball & Don A. Davis, The Extension of Insurance Subrogation, 60 Mich. 1,. Rev. 842 a 843 (1962.

[9] See George Steven Swan, Subrogation in Life Insurance, Now is the Time, 48 Ins. Counsel J. 634 (1981.

[10] See supra note [8], Spencer L. Kimball & Don A. Davis text.

[11] Ibid note.

[12] See Roger M. Bacon, Subrogation, A Pandora's Box Awaiting Closure, 41 SD L Rev. 241 a 247 (1996.

[13] See Roger M. Baron, Subrogation on Medical Expense Claims, The "Double Recovery" Myth and the Feasibilityof Anti a Subrogation Laws, 96 Dick. L. Rev. 587 a 590 (1992.

[14] Ibid note.

[15] Ibid note.

[16] Vgl. Finke, Werbung and Wettbewerb in der Versichenmg, Teil B, 2. Ordner, Verl. Versicherungswirtschaft, 1954, S. 761.

[17] See supra note [8], Spencer L. Kimball & Don A. Davis text.

[18] standard terms and conditions policy insurance regulatory authorities in Germany who negotiated with the insurance industry made the product, and people are in each policy. SeeSpencer L. Kimball, The Purpose of Insurance Regulation, A Preliminary Inquiry in the Theory of Insurance Law good Minn. G. Rev. 471,493 a 495 (1961.

[19] See supra note [5], Erich R. Prolss, p. 670.

[20] See supra note [7], [United States] Robert H. Jerry, Douglas R. Richmond, p. 354.

[21] The reason is that insurers accept the insurance obtained through treatment of payments, so that you can ask him to accept liability for damage claims of people insured only person in order to prevent a double benefit in the case before the transfer by subrogation to the him, while the dual benefit of a third party in the insured person to exercise the right to claim priority to the case will not happen, because when the insurance and liability for damage claims of people did not add up to more than the insured who actually suffered losses. See supra note [4], Riiff'er / Halbach / Schimikowski, p. 86, while code 24.

[22] See Elaine M. Rinaldi, Apportionment of Recovery Between Insured and Insurer in a Subrogation Case, 29Tort. & Ins. LJ 803 (1994.

[23] limited to the length of the article, this article does not intend to start arguments on this issue, then there will be a special article to explore it. The author's basic point is still that "full repayment of the insured person" principle is more reasonable.

[24] See supra note [13], Roger M. Baron text.

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