为第三人利益合同相关理论探讨——兼谈我国《保险法》的修改与完善

Study on Some Thoeries of the Contract for Third Party Interest——moreover on revision and improvement of Insurance Law in China

保险合同是投保人与保险人约定保险权利义务关系的协议。因此,在保险法律和保险合同中规定投保人的权利和义务是符合合同基本理论的。投保人和被保险人为同一人的保险合同是基本形态。但投保人与被保险人不是同一人的保险合同也是普遍存在的,尤其是人身保险合同。由于这种保险合同的投保人和被保险人是不同的人,如何平衡投保人和被保险人的利益,设定被保险人的权利和义务,需要探索理论依据。从我国《保险法》目前设定的保险合同权利和义务的框架和结构来看,不宜把被保险人作为保险合同的当事人来对待,应在保险合同基本形态的基础上,对于投保人和被保险人不是同一人的保险合同,以"为第三人利益合同"来丰富和完善我国保险合同的理论和法律体系,界定被保险人的法律地位,并在此基础上对我国《保险法》作出修改和完善,为保险合同纠纷的解决提供理论指导。

Insurance contract is an agreement between the applicant and the insurer on rights and obligations specified in insurance contract. Therefore, to specify the rights and obligations of the applicant in insurance laws and regulations as well as insurance contract are in line with the basic theory of contract. The basic form in insurance contract is that the applicant is the insured. However, in many insurance contracts, especially personal insurance contracts, the applicant is usually not the also insured. Owing to that, how to balance the interest between the applicant and the insured to specify the rights and liabilities of the insured needs theoretical support. From the present framework of Insurance Law on contract rights and liabilities, it is inapproriate to regard the insured as the contract party. What is more appropriate, on the basis of present basic form of insurance contract, is to supplement our insurance legal framework and insurance theories with ＂the contract for the third party interest＂ specifcally for those contracts where the applicant is not the insured. In this way, the legal status of the insured is clealy stated and our Insurance Law is further improved. And that will offer a theoretical backup for the solution to insurance contract dispute.