法定的债权移转之下的保险代位权制度的困境与选择

Predicaments of Insurance Subrogation System under Legal Assignment of Rights of Claim

在以防止被保险人不当得利这一统一的价值引领之下,大陆与英美两大法系发展出法定的债权移转与权利法定代位两种不同的制度安排。由于不真正连带债务理论的局限,法定的债权移转无法有效地防止被保险人的不当得利,而权利法定代位则有助于克服前者所面临的困境,并以此成为一个相对优化的制度选择。我国目前的研究已经对法定的债权移转的困境展开初步的检讨,但是,其尚未对不真正连带债务这一基本理论构造进行深刻的批判。因此,当下的研究有必要上升到防止被保险人不当得利这一价值高度,由此证明不真正连带债务理论所构造的保险代位权制度存在着价值落空的困境,从而为我国当下保险代位权制度的重塑奠定基础。

Under the uniform value of preventing the insured from unjust enrichment,there are two different kinds of arrangement of insurance subrogation in continental law system and common law system,namely legal assignment of rights of claim and legal subrogation of rights of claim.Due to the limitation of the theory of unreal joint and several liabilities,the system of legal assignment of rights of claim can not effectively prevent the insured from unjust enrichment,while that of legal subrogation of rights of claim helps to solve this problem and has become a better system choice.Although the recent study in China has begun to criticize the system of legal assignment of rights of claim,it has not gone to the fundamental theoretical aspect,that is the theory of unreal joint and several liabilities.Therefore,on the basis of the value of preventing the insured from unjust enrichment,the present study should dedicate to demonstrate that the theory of unreal joint and several liabilities is unable to completely achieve the essential value of insurance subrogation system,which will lay a sound foundation of remolding insurance subrogation system in China.