Research On The Participation Right Of Liability Insurer And Its Exercise

Liability Insurance refers to the form of property insurance in which the insurer assumes liability for compensation to a third party in accordance with the law.Compared with other developed countries,the development of Liability Insurance started late in China.Due to the short history and insufficient experience,there are many problems in the understanding and practical application of the theories of Liability Insurance,especially the issues relating to the exercise of the participation right by the liability insurers.The participation right of the liability insurer means that after the occurrence of the insured accident,the liability insurer has right to participate in the litigation or negotiation process between the insured and a third party,and to defend or negotiate with the third party for settlement.Theoretically,the participation right of liability insurer reflects the principle of good faith,interest balance and judicial benefit.It can effectively balance and protect the interests of multiple parties of liability insurance,not only promoting the development of the Liability Insurance but also maintaining the stability of the society.However,at present,there are no relevant provisions on the liability insurers' participation right in the existing law of China,even the Insurance Law only contains two simple provisions on certain matters of liability insurance.In other words,the participation right of liability insurers is still blank in China's legislation.However,in practice,the liability insurance contracts always include theclauses that stipulate the participation right of the insurer,which are almost from the standpoint of the underwriter,aiming at protecting their benefit.Obviously,such situation is not conducive to the protection of the interests of the insurer and cannot effectively supervise the exercise of the participation right by the insurer,resulting in a disconnect between legislation and practice.Therefore,this paper uses comparative analysis,case analysis and other methods to define the nature of the participation of the liability insurer and discuss how the insurer can properly participate in order to balance the interests of all parties,and then provide effective suggestions for the further improvement of the insurance laws and regulations.This essay firstly explains the definition of Liability Insurance,and analyzes the characteristics of the Liability Insurance from the perspective of the insurance subject,the substitution of reimbursement,the limit of compensation.After that,from the theoretical point of view,it will analyse the four kinds of complex legal relations in the legal relationship of Liability Insurance.On the basis of understanding the relevant theories of the Liability Insurance,this essay further clarifies the concept of the participation right of the liability insurers,and conduct an in-depth analysis of the theoretical basis and legal nature of the participation right.Afterwards,it will outline the problems existing in the current system of the participation right of the Liability Insurance in China,which consolidate the foundation for discussing the content and exercise of the participation right and putting forward suggestions to improve the system in the following paragraphs.In the second chapter,according to the academic tradition,the author divide the participation right of the liability insurer into two parts: the obligation of defense and the right of participation in reconciliation,and discuss the content of the right and the rules of exercise from the theoretical perspective.At first,the implementation of the liability insurer's defense and settlement behaviors are closely related to the final determination of the insurance liability.Therefore,the judgement criteria for the participation right of liability insurers are quite important.At the same time,due to the complexity of the legal relationship of liability insurance,the conflicts of interest between multiple parties are inevitable.Therefore,laws and regulations also need todeal with the insurer's participation in the process of the possible conflict of interest.In addition,the results of the liability insurer to exercise participation will form a variety of complex,and the legal consequences caused by the different results are also different So,based on this,the author also discusses the liability insurer's duty of care when exercising the right of participation and the legal consequences caused by improper exercise of the right of participation.In the third chapter,this paper compares and analyzes the provisions on the participation right of liability insurer in the legislation of some countries and regions of common law system and continental law system.After comparing the experience of different countries and regions in dealing with the participation of insurers and combining the insurance practice in China,the author suggests that in terms of design of the system,the participation rights of liability insurers in China should mainly draw on the "right to participate" legislation in Taiwan,and based on this,to make further improvement.At last,in the fourth chapter,the writer firstly put forward some suggestions on the construction of the participation right of liability insurers in the laws of China.Then,on basis of this,this paper makes a general proposal to amend the terms of the participation of insurer in the liability insurance contract,with a view to further improve the legal rules and regulations of the participation right and its exercise.