The Principle Of Priority Compensation For Insured

The theoretical basis of the subrogation right in property insurance is the principle of fairness and the principle of compensation for damages.As a right created by law,the original purpose was to prevent the insured from obtaining improper benefits due to double compensation by the insurer and a third party.Even if the insured accident is caused by a third party,the insurer’s right to subrogation and the insured’s right to claim damages do not necessarily conflict.However,due to the existence of factors such as exclusion liability,deductible clauses and insufficient insurance in insurance practice,there may be cases where the insurance funds cannot fully cover the loss of the insured.If the third party’s solvency cannot meet the insurer at the same time And the claims of the insured,there will be conflicts in the exercise of their rights.At present,China’s insurance legislation and judicial practice have not clarified this issue,and conflict handling principles and rules have been absent for a long time.In view of this,this paper proposes to use the combination of comparative and empirical research to propose that in the case of insufficient compensation,the principle of priority of the insured should be applied when conflicts of subrogation claims and claims for damages are exercised.The body of this article has three parts:The first part starts from the theoretical source of the conflict between the subrogation right and the right to claim damages in the case of insufficient compensation.The legal analysis of the subrogation right is discussed,and the original legislative intention of the subrogation right is to fully compensate and ensure fairness.This paper discusses the differences between the common law system and the civil law system on the legal attributes of subrogation claims and responds to them.The reasons for the conflict of rights exercise under insufficient compensation are combed from the aspects of insurance practice,insurance legislation,and judicial practice.The second part first introduces the three processing principles under the conflict of rights,namely the insurer’s priority principle,the insured’s priority principle and the principle of proportional distribution;secondly,it examines the German,German,The specific rules of conflict handling established by Japan,Britain,and the United States;finally,after comparison and analysis,the inherent defects of the insurer’s priority principle and the principle of proportional distribution were pointed out,which ruled out the possibility of applying the two in the field of China’s insurance law.The third part discusses what kind of rights conflict handling rules should be constructed in our country.First,it discusses the legitimacy of the insured priority principle in detail,and refutes the main objections,and concludes that the insured priority principle should be established in China’s insurance legislation.The situation where the principle of the priority of the person applies is analyzed in general,and it is considered that special control clauses should be used to regulate the parties that harm the interests of the insured and violate the purpose of the insurance law.Finally,the principle of the priority of the insured is further detailed.It shall be apportioned in accordance with the proportion of the parties’ interests in order to achieve an equitable balance of interests between the parties.