Study On Legal Issues Of Our Country's Compulsory Liability Insurance Of Vehicle Traffic Accident

For the first time, the Law of the People's Republic of China on Road Traffic Safety, implemented in May 1st, 2004, requires to carry out compulsory third party liability insurance throughout the nation. The Compulsory Liability Insurance Ordinance of Vehicle Traffic Accident, approved in March 28th, 2006, prescribes in detail the compulsory liability insurance system of vehicle traffic accident. The law and the ordinance mentioned above, together with relevant local legislation, contribute to the establishment of a perfect compulsory liability insurance system of vehicle traffic accident nationwide. However, due to the fact that it has not been put into practice for long and the theoretical study is comparatively late, many legal problems still exist in this field in our country and need more attention and further study on it by the theoretical and practice circles in law. This thesis attempts a tentative study on the concept, the function, the insurable interest, the essence, the choice of modes of legislation and system of rescue expenses paid in advance, and put forward some views and legislative suggestions. This thesis mainly consists of four parts, besides the introduction and conclusion.The first part is devoted to summarize the Chinese compulsory liability insurance of vehicle traffic accident, including its concept, characteristics, function and insurable interest. It is our belief that the practice of excluding the passengers as insured objects in our country does not conform to the international legislative tendency of viewing the persons in the vehicle as insured objects, which embodies the principles of Protecting Life and Putting Person First, and also is detrimental to the solution of single vehicle accident, including roll-over accident, especially the solution of the accident involving many casualties. We present two suggestions. The first one is that the compulsory third party liability insurance should be replaced by the compulsory liability insurance of vehicle traffic accident regulated by the Law of the People's Republic of China on Road Traffic Safety and other local rules on road traffic safety for the consistency and harmony of the legal system of compulsory safety of vehicle traffic accident. The second one is that the passengers should be listed as the insured objects through judicial interpretation.The second part is mainly concerned with the circumscription of the essence of the Chinese compulsory liability insurance of vehicle traffic accident, including the circumscription of the essence of compulsory insurance of vehicles and vehicle traffic accident liability insurance at the present stage of our country (from May 1st, 2004 to June 30th, 2006). We hold the following two viewpoints. Firstly, the compulsory insurance of vehicles is legal compulsory insurance which has two kinds of specified essence, to force the implementation of public policy and to embody the notable commonweal. Secondly, at the present stage of our country, the essence of the liability insurance of vehicle traffic accident is vehicle compulsory insurance. In the Compulsory Liability Insurance Ordinance of Vehicle Traffic Accident, Article 45 determines the nature of vehicle traffic accident liability insurance as commercial insurance, which is wrong and needs to be amended. It is suggested that Article 45 should be amended according to legal procedure, and that the essence of the vehicle traffic accident liability insurance at the present stage should be recognized as compulsory insurance of vehicles.The third part mainly deals with the choice of the Chinese legislative mode of the compulsory insurance of vehicle traffic accident. Through the comparison of two legislative modes, which are the mode of compulsory liability insurance and the mode of the compulsory insurance. The dissertation believes that our selection of the legislative mode of the compulsory insurance of vehicle traffic accident is more suitable for our country in general. Of course, the advantages of both modes should be used for reference. Four advantages are mentioned in this part. Firstly, the victims of traffic accident should be endowed by legislation with the right to ask for direct compensation from the insurance company. It is suggested that relevant articles in the Compulsory Liability Insurance Ordinance of Vehicle Traffic Accident should be amended. Secondly, specialized legislation should be made to adjust items concerning the compulsory insurance of farm vehicle, such as tractor. And farm vehicles should not be listed as the insured vehicles in the Compulsory Liability Insurance Ordinance of Vehicle Traffic Accident. Thirdly, judicial interpretation should be given to circumscribe the compensation of compulsory liability insurance of vehicle and restrict the compensation to sustain the basic life of the victims. Fourth, the passengers should be listed as the insured objects through judicial interpretation.The fourth part approaches the system of rescue expenses paid in advance, which embodies the principles of Protecting Life and Putting Person First. The system of rescue expenses paid in advance which embodies the legislative principles of protecting Life and Putting Person First is the important joint of the whole system of the Chinese compulsory liability insurance of vehicle traffic accident. Additionally, the system contribute to catch on the circumscription of the essence of the Chinese compulsory liability insurance of vehicle traffic accident, the choice of the Chinese legislative mode of the compulsory insurance of vehicle traffic accident, and other systems of the Chinese compulsory liability insurance of vehicle traffic accident preferably. So the dissertation studies the system in a exclusive part, including the concept of the rescue expenses paid in advance, the necessity of its existence, the whole system and the comparison with the relevant systems abroad. The dissertation believes that the system of rescue expenses paid in advance in our country is a scientific and reasonable design as a whole. However, firstly, some clauses of the Chinese legislations about the rescued expenses paid in advance of the insurance corporation are contradictive. The dissertation's suggestion is to delete the second item of Article 22 in The Ordinance. Secondly, The Ordinance endows the insurance corporations the right to decide whether the insurance corporations themselves assume insurable liabilities, which is obviously unfavorable to the victims. So the dissertation suggests the government take corresponding countermeasures to endow a specialized machinery the same right. Thirdly, the legislation of our country fails to regulate the liability of the violation of rescue fund duty and it is suggested that relevant regulations concerning rescue fund of traffic accident should be made and specified. Fourth, the fees of hospitalization, treatment fees and following-up treatment fees should be calculated into the rescue expenses and it is suggested that the State Department should make relevant regulations to specify and elaborate the scope of rescue expenses, and the checking and ratification procedure.