论保险法上代位求偿权的正当化基础

Legitimate Basis of Subrogation Rights in Insurance Law

代位求偿权正当化基础是构建保险人代位求偿权制度的基本出发点,已有的理论解释包括防止被保险人不当得利等。本文认为代位求偿制度其正当化基础可以从损害赔偿原则本身求得,而无需借助民法不当得利。文章以此为基础进一步解析了保险合同代位求偿权的适用范围,以及保险人向第三人主张的赔偿范围和诉讼时效等保险法实践层面的问题。

Legitimate basis of subrogation rights is the basic starting point in forming a system of insurers’ subrogation rights.The current theoretical explanation in this respect has already included unjust enrichment of the insured and some other aspects.This article holds that the legitimate basis of subrogation rights can be obtained from the principles of damages per se and there is no need to resort to unjust enrichment in civil law.Based on the view,the article further analyzes such practical issues in insurance law as the application scope of subrogation rights in insurance contracts,compensation scope of the insurer’s claim against the third party and limitation of actions.