Study On The Object Of Exercising Insurance Subrogation Right

The insurance subrogation system is an extension of the principle of loss compensation in insurance,and the insurer can obtain the original insured’s right to play a role in preventing the insured’s unjust enrichment and preventing the person responsible for the insurance accident from being exempted from liability after performing the insurance payment.The provisions of China’s Insurance Law on the object of exercising the right of subrogation in Article 62 of the Insurance Law and Article 8 of the Judicial Interpretation(IV)of the Insurance Law exclude the application of the right of subrogation to the family members of the insured or their constituents from the opposite side and affirm the application of the right of subrogation to the insured who is not the insured from the positive side.The provisions of this law are not sufficient to solve problems in judicial practice.In the first part of this paper,by selecting specific cases in China’s judiciary,it is found that the application of subrogation without any restriction is not beneficial to the protection of the insured and the preconditions should be added appropriately,as well as the provisions on the exclusion of the scope of application are not clear enough and should be restricted by means of legal interpretation.In the second part,the object of application of insurance subrogation right is analyzed.In general,the object of application of insurance subrogation right is the third party responsible for the insurance accident and the person who may replace the actual responsible third party in liability due to other legal relations.For the insured as a special subject,the subrogation right should be appropriately attached in the application of the subrogation right,and the insurer had clearly stated the premise of the existence of subrogation right when concluding the contract.In the third part,I analyze the objects of the exclusion of the insurance subrogation right.For the identification of the co-insured,the scope of the co-insured should be limited to the explicit agreement in the insurance contract,and it is not appropriate to expand.As for the definition of the scope of the family members and members of the insured,the reason for the exclusion of these objects is to prevent the embarrassing situation of the insured’s insurance money "going in with the left hand and out with the right hand",which is contrary to the insurance intent,then the scope of the excluded objects is also determined based on this.In the fourth part,the provisions on the insurance subrogation system in Italy,Japan and Chinese Taiwan are introduced,as well as the doctrinal views surrounding the issue of the object of application of subrogation.Finally,on the basis of this,I have come up with recommendations on the exercise of subrogation rights in China in terms of both institutional improvement and practical operation,namely,in order to better protect the rights and interests of the insured and its stakeholders,it is recommended that the insurer’s obligation to explain the subrogation rights and the consequences of not fulfilling the obligation to explain be clarified,and that the exclusion of the subrogation rights be strictly limited by a high degree of consistency with the insured in terms of economic interests.For the third party who does not meet the criteria but has certain common economic interests with the insured,based on not violating the principle of insurance damages and general fairness,the purpose of excluding the application of the insurance subrogation right can be achieved through the prior agreement of the co-insured clause or the subrogation waiver clause in the insurance contract.