Litigation Preservation Liability Insurance Insurer Legal Analysis Of Underwriting Risk

According to our country’s civil procedure,when a preservation applicant applies for preservation,the competent court will require the applicant to provide a guarantee of equivalent value to the preserved property in accordance with the provisions of the Civil Procedure Law.In order to meet the requirements of the court,preservation applicants usually provide guarantees by providing their own property;or pay guarantee fees to obtain guarantees from commercial banks and guarantee agencies.However,the above-mentioned traditional guarantee methods have brought high preservation costs to the preservation applicants,resulting in the problem of "preservation is not difficult,and guarantees are difficult".In 2012,Chengtai Insurance Company began to operate litigation property preservation liability insurance(hereinafter referred to as "liability insurance")to provide a win-win solution to solve the above problems,reduce the cost of guarantees,and be adopted by courts at all levels.However,the lawsuit preservation liability insurance,which has been popular because of its low guarantee cost and higher court acceptance,has entered a period of litigation risk outbreak since 2017,and the insurance company’s underwriting risk in the lawsuit liability insurance has begun to become prominent.This article points out the development dilemma of liability insurance from the perspective of underwriting risks of insurers,and proposes that the first underwriting risk angle of insurers comes from the unclear legal attributes of liability insurance.Once the insurance is generated,there are disputes of a legal nature,leading to a certain degree of confusion when various insurance companies design the insurance products.The second underwriting risk.This insurance is easy to cause moral hazard and it is difficult for the insurer to provide relief.At present,most insurance companies and judicial interpretations believe that the insurance is liability insurance,and adopt a liability insurance model to design liability insurance products.However,the liability insurance model leads to the separation of risk-bearers and liability subjects,thus triggering malicious collusion between the parties to the litigation.Moral hazard behaviors such as false lawsuits or deliberate mistakes by the insurer to defraud insurance money.In the face of such risks,insurance companies have lack of remedies,and the rights of remedies such as the right to terminate the contract and the right of recourse are blocked.The third underwriting risk is due to the different judicial judgment standards of the court for "wrong application for preservation".According to the judicial interpretation,the court’s judgment is the key to the underwriting of the insurer.While the court decides whether the applicant’s behavior is attributable,it also needs to determine the legal nature of the applicant’s behavior and the category of liability.According to the principle of tort liability law,the damage to the relevant property of the respondent caused by the preservation error should be a tort,so the applicant shall bear the tort liability.However,the relevant laws of our country have not made detailed provisions for the determination of whether the applicant’s application for preservation is wrong.In judicial practice,there are gaps in the standards for the trial of preservation errors,and the courts at all levels have different standards for the determination of preservation errors.Different standards of judicial discretion make it difficult for insurers to accurately estimate risks,and increase insurers’ underwriting responsibilities.Therefore,around the above three underwriting risks of the insurer,this article takes the protection of the rights and interests of the insurer as the perspective to improve the liability insurance under the liability insurance model.The article follows the extension of the main ideas from the problem raised-theoretical framework construction-empirical analysis and comparison-hindrance analysis-mechanism improvement.There are four parts in total.The main framework outline and research ideas are as follows:The first chapter mainly elaborates the development and dilemma of liability insurance.Starting from the inherent contradictions of the property preservation system and the defects of the traditional guarantee methods,the background of the liability insurance is drawn.Secondly,it points out that according to the law,the legal nature of liability insurance is liability insurance,which defines the boundary and basis for the following research scope.Finally,it focuses on the practice,under the liability insurance model,the liability insurance has caused the dilemma of the insurer’s rights and interests.Chapter Two makes a legal analysis of the risks underwritten by the insurer.It is clear that the legal structure of liability insurance is a dual structure,the internal relationship is the liability insurance contract relationship between the insurer and the preservation applicant,and the external relationship is the independent letter of guarantee relationship.It is precisely because of this dual structure that litigation insurance has many conflicts.In addition to the function of insurance risk transfer,liability insurance also acts as a guarantee because it issues insurance policies to the court.In actual operation,the insurance policy is often out of touch with the policy guarantee,and the rights and obligations of the two do not match exactly.Therefore,liability insurance is in conflict with the design of traditional liability insurance products,mainly including that this kind of insurance often does not have exclusion clauses,does not set insurance liability limits,and underwrites intentional infringements.Chapter three,from the perspective of judicial practice,analyzes the court’s judicial determination of insurance liability in the liability insurance,and points out that the court has a confusion of different determinations in terms of "application for preservation error" and "compensation liability".The fourth chapter writes the path to protect the rights and interests of the insurance insurer,which is also the final goal of this article.Respectively amending the judicial interpretation to expand the legal attributes of liability insurance to the guarantee insurance model;in the liability insurance model,seeking legal remedies other than the "Insurance Law";regulating the judicial determination of "errors in applying for preservation" and the insurance company’s liability for compensation,etc.From the perspective of improving the insurer’s rights and interests relief method It is hoped that the above-mentioned measures can effectively solve the three dilemmas of insurers in liability insurance and give full play to the product’s due value.