责任保险人的抗辩义务初探

Elementary Exploration on the Liability Insurer's Duty to Defend

本文主张,我国保险法应明确规定责任保险人的抗辩义务。责任保险人的抗辩义务是责任保险人对被保险人所承担的不依赖于保险给付义务的基本义务。只要第三人向被保险人提出的索赔请求具有属于保险人承保范围的潜在可能性,保险人就有义务为被保险人进行抗辩。该项义务具有法定义务和合同义务的双重属性,违反该义务将构成侵权责任与违约责任的竞合。

The liability insurer＇s duty to defend refers to the basic duty which the liability insurer owes to the person insured, which is not depending on the duty of insurance payment. The insurer is under a duty to defend a suit against the insured where the complaint or petition in such suit alleges a state of facts within the coverage of the policy. Because the duty to defend has both promissory and statutory nature, when the insurer breaks the duty , the insured could voluntarily choose one way from these two ways to protect his interest.