The Conflict Between The Insurer’s Subrogation And Insured’s Right Of Claim For Damages And Its Solution

In insurance practice,the insured has the right to request the third party bear the liability if not get sufficient compensation from the insurer.While the insurer has the right of subrogation to the third party who is liable for compensation after undertake the insured liability.There is no dispute that when the third party has enough money compensate for the request of both sides.But in some special cases,the third party hasn’t enough money or enjoy the limitation of liability,the insurer and the insured can only obtain limited compensation There will generate controversy when allocate this money.The insurance legislation of our counter remains silent on operational ways and procedures concerning the subrogation of the insurer and the claim of the insured.Who will get first indemnity from the third party limited compensation is a complex system,we need systematic solutions.In the general case we should adhere to the insured priority to receive compensation but the parties can exclude exceptions while adopt other rules in the case of exist special law or as otherwise agreed by the parties.In addition,the cost-sharing and additional benefits also requires special treatment under the general rule.This paper contains four chapter.The first chapter is about the specific situation of the conflict of the insurer subrogation and insurant damage compensation.Mainly in the existence of under-insurance,at the same time exist in full specified amount insurance.The second chapter is about the rules for addressing the conflict between the insurer’s right of subrogation and the insured’s right to claim.There are "the rule of insured’s priority in claim","the rule of insurer’s full compensation",","the rule of insurer’s priority in claim","the rule of rata distribution".The author then give further discussion based on the cases.The third chapter is analysis the rule between the insurer’s right of subrogation and the insured’s right to claim."The rule of insured’s priority in claim" as a general principle,and in the same time to avoid misunderstanding of this principle,we should adopt the other principles when there are special provisions or otherwise agreed by the parties.The forth chapter is consider the questions of bear the cost that recover from the third person and the attribution of the additional benefits.