损害补偿原则在多数保险中的运用

发布时间：2018-05-17 22:42

本文选题：损害补偿原则 + 多数保险定义　；参考：《西南政法大学》2008年硕士论文

【摘要】： 损害补偿原则是保险法中非常重要的原则,是保险法上诸多制度体系的基石。损害补偿原则在绝大多数的财产保险与很多人身保险中有着广泛的运用。损害补偿原则是指被保险人在保险事故发生而遭受损害时,由保险人在约定的保险价值及保险金额范围内,以实际的损害为基准,并在考量保险利益之有无的前提下及其范围内,予以给付保险金。我国保险法虽然确立了损害补偿原则,但是立法上并没有赋予该原则以应有的地位,理论界也没有给于该原则以应有的重视。本文通过对保险法上损害概念与民法上损害概念的比较研究,提出两者在目的上和范围上的区别,并以此划分了保险法上损害与民法上损害的界限。在损害补偿额度问题上,笔者把损害补偿额与保险金额、保险价值和实际损失这几个相关概念进行了比较,进而确立了几个概念间的相互关系。在损害补偿原则的适用范围上,本文通过对财产保险与人身保险、定值保险与不定值保险、损害补偿类保险与定额给付类保险的分析提出了损害补偿原则适用于损害补偿类保险的结论。传统的保险关系是保险人与被保险人之间一对一的关系,随着所有权权能的分离、消极保险的出现,以及对保险利益原则的深入理解,现实生活中出现了越来越多的一个被保险人与多个保险人之间存在保险合同,并且各个保险合同效力彼此影响的现象。与该现象相关的概念主要有超额保险、足额保险与不足额保险;而国内外保险法学界解决此类问题的常见规则又主要有:重复保险规则、保险竞合规则与其他保险条款规则等。笔者通过对近似概念的比较以及这几类规则的分析论证,提出了更恰当的多数保险概念。笔者认为,多数保险是指在同一个保险利益上,为了防范相同的风险,订立数份保险合同,该几份保险合同的保险期间重合,同时数保险合同的总保险金额超过保险价值的状态。笔者在确立多数保险概念后对其特征进行了阐述。笔者认为,多数保险主要有以下五大特征:1.同一个保险利益;2.同一个保险事故;3.数个保险合同;4.同一保险期间;5.数个保险合同的总保险金额超过保险价值。笔者认为,多数保险概念的确立及其特征的阐述有助于弥补我国保险立法的空白,并对保险实务操作具有很强的借鉴作用。多数保险中保险合同彼此间的效力问题是同一被保险人与多个保险人之间关系的核心。理顺相互关联的多个保险合同间的效力可以简化当事人间的关系,从而顺利解决多数保险问题。在判断多个保险合同效力时,笔者没有援引我国保险法规定的超额保险当然无效的规定,而是综合了保险法的损害补偿原则与合同法的一般原理来考量,进而提出以当事人的主观心理分类来分析不同情况下保险合同的效力状况,并创立了赋予善意当事人的合同撤销权制度来替代简单的直接判定合同无效的方式。笔者把多数保险的效力问题分为三种情况分别分析论证。第一种情况,当保险人与被保险人均善意时,应认定多数保险合同中的超额保险合同无效,其他超额保险合同均有效,确定哪部分为超额部分的选择权由处于弱势地位的被保险人行事,多收取的保险费如果事故没有发生,则被保险人有权收回;如果保险事故发生,则被保险人无权收回。第二种情况,当保险人善意而被保险人恶意时,应当赋予善意的保险人以合同撤销权,该撤销权适用于因被保险人恶意而订立的整个合同。善意的保险人不行使撤销权则合同生效,善意的保险人行使撤销权则因被保险人恶意而订立的合同无效。第三种情况,当保险人恶意而被保险人善意时,在损害补偿原则的范围内赋予被保险人以合同撤销权,无论被保险人是否行使撤销权,有效部分的合同效力仅限于保险价值额度内。在多数保险的理赔问题上,笔者运用损害补偿原则对常见的比例分摊原则、优先原则和连带责任原则进行了全方位的分析比较,并考察了世界各国在理赔问题上的规定。笔者认为,在多数保险的理赔原则问题上,比例分摊原则与优先原则都有诸多缺陷,而连带责任原则则可以解决这些缺陷。相比之下,连带赔偿原则符合优先保护被保险人(投保人)的立法趋势。同时,基于保险合同的契约属性,笔者认为,当事人之间对理赔问题的约定也应当认定为多数保险理赔的原则之一。本文的主要研究方法包括:第一,逻辑分析的方法。在多数保险问题上,笔者运用损害补偿原则在法学研究应当遵循的基本逻辑范围内展开论述,使损害补偿原则的解释、多数保险概念的界定都建立在严密的逻辑基础之上。第二,归纳法。本文通过归纳整合世界各国的多数保险合同效力问题和理赔问题,建立了符合法理、逻辑清晰的多数保险合同效力规则和理赔方式,并与民法基本理论相衔接。第三,经济分析的方法。考虑到保险法的商法属性以及保险理赔过程中的成本问题,通过经济分析的方法揭示了多数保险制度设计中的经济理性。第四,比较法学的方法。我国的保险法相比世界大多数发达国家处于起步阶段,对多数保险相关问题的研究也仅仅停留在重复保险问题上,这与保险业发达的国家相去甚远,为了建立符合保险法前沿理论与适应我国具体情况的多数保险制度,本文对英国、美国、德国、瑞士等国家的相关规定进行了分析与归纳,并从中抽取了完善我国立法和实务的相应规则。
[Abstract]:The principle of damage compensation is a very important principle in the insurance law. It is the cornerstone of many system systems in the insurance law. The principle of damage compensation is widely used in the vast majority of property insurance and a lot of personal insurance. The principle of compensation is that the insurer is insured by the insurer when it is damaged by the insurance accident. In the scope of the value and the amount of insurance, the insurance is paid on the basis of actual damage and under the premise and scope of the interest of insurance. Although the insurance law of our country has established the principle of compensation for damage, it has not given the principle a proper position in the legislation, and the theorists have not given the principle the due weight. See.
This paper makes a comparative study of the concept of damage in the insurance law and the concept of damage in civil law, and puts forward the difference between the two in the purpose and scope of the two. In this way, the boundary between the damage of the insurance law and the damage in civil law is divided. On the issue of the compensation for the damage, the author puts the damage compensation to the insurance value, the insurance value and the actual loss. In the scope of the application of the principle of damage compensation, this paper puts forward that the damage compensation principle applies to the damage compensation class insurance through the analysis of the property insurance and the personal insurance, the fixed value insurance and the indefinite value insurance, the damage compensation class insurance and the quota insurance. Conclusion.
The traditional insurance relationship is one to one relationship between the insurer and the insured. With the separation of the ownership power, the emergence of the negative insurance and the deep understanding of the principle of insurance interest, there are more and more insurance contracts between the insured and the insurers in real life, and the effectiveness of the insurance contracts. The main concepts related to the phenomenon are excess insurance, full insurance and insufficient insurance, and the common rules for solving such problems in the insurance law circle at home and abroad are repeated insurance rules, insurance competition rules and other insurance clauses. The author argues that most insurance means that in the same insurance interest, several insurance contracts are concluded in order to prevent the same risk, the insurance period of several insurance contracts coincides and the total insurance amount of the insurance contract exceeds the state of insurance. The author expounds its characteristics after the concept of number insurance. The author holds that most insurance mainly has the following five characteristics: 1. the same insurance interest; 2. the same insurance accident; 3. insurance contracts; 4. same insurance period; the total insurance amount of the 5. insurance contracts exceeds the value of the insurance price. The author believes that the establishment and characteristics of most of the insurance concepts are established. The elaboration will help to make up for the gaps in China's insurance legislation and provide a strong reference for insurance practice.
The validity of the insurance contract in most insurance is the core of the relationship between the same insured and the insurer. The effectiveness of the interrelated insurance contracts can simplify the relationship between the parties and solve the majority of the insurance problems. In judging the effectiveness of the multiple insurance contracts, the author does not invoke our national insurance. The insurance law stipulates that the excess insurance is of course ineffective, but the general principle of the compensation principle of the insurance law and the general principle of the contract law is taken into consideration, and then the effect of the insurance contract under different circumstances is analyzed by the subjective psychological classification of the parties, and the contract revocation right system which endows the parties with the good and the meaning of the contract is created to replace the Jane. In the first case, when the insurer and the insured are in good faith, we should find that the excess insurance contract in the majority of the insurance contracts is invalid, and that the other excess insurance is valid, which is to determine which part is the excess part. Choose the right to act by the insurant in the disadvantaged position, if the accident does not occur, the insured has the right to recover it; if the insurance accident occurs, the insured is not entitled to recover. In the second case, when the insurer is good in good faith and the insurer maliciously, the insurer should be given the right to revocation of the contract and the right of revocation is suitable. The whole contract that is used for the malice of the insured. The bona fide insurer does not make the revocation the contract to take effect, and the bona fide insurer exercises the revocation right to the contract concluded by the insured's malice. In the third case, when the insurer is malicious and the insurer is in good faith, the insured shall be given to the insured within the scope of the compensation principle. Whether the insured has exercised the right of revocation, the effective part of the contract revocation is limited to the insurance value.
On the issue of most insurance claims, the author uses the principle of damage compensation to analyze and compare the common principle of proportion sharing, the principle of priority and the principle of joint liability, and examines the provisions of the world in the claim of claims. The author believes that the principle of apportionment and the prioritize of the principle of claim for most insurance are the principle of proportionate allocation and the priority. There are many defects, and the principle of joint liability can solve these defects. In contrast, the principle of joint and several compensation conforms to the legislative trend of protecting the insured (the insured) with priority. At the same time, based on the contractual properties of the insurance contract, the author thinks that the agreement between the parties to the claims should also be considered as the principle of most insurance claims. One of.
The main research methods of this paper include: first, the method of logical analysis. On most insurance issues, the author uses the principle of damage compensation in the basic logical scope of legal research to explain the principle of damage compensation, and the definition of most of the concepts of insurance is based on the strict logical basis. Second, induction. In this paper, through the induction and integration of most of the insurance contracts and claims in the world, the rules of validity and claim for most insurance contracts in accordance with jurisprudence and clear logic are established, and they are connected with the basic theory of civil law. Third, the method of economic analysis. The commercial law of insurance law and the process of insurance claim are taken into account. This problem, through the method of economic analysis, reveals the economic rationality in the design of most insurance systems. Fourth, comparative law method. China's Insurance Law is in the initial stage compared with most of the developed countries in the world, and the research on most insurance related issues is only on the issue of repeated insurance, which is with the developed countries. So far, in order to establish the most insurance system which conforms to the frontier theory of insurance law and adapt to the specific circumstances of our country, this article analyses and summarizes the relevant regulations of Britain, the United States, Germany, Switzerland and other countries, and draws the relevant rules to improve our country's legislation and practice.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D912.28

【引证文献】