我国保险代位权制度的困境——以双重法律关系的纠结为视角

The Predicament of China's Insurance Subrogation System:From the Angle of Dilemma of Two Kinds of Legal Relationships

法定的债权移转导致我国保险代位权制度面临着双重法律关系纠结的困境,即在本应以被保险人与第三人的请求权关系为主线而展开的代位求偿的进程中却混入了被保险人与保险人之间的保险合同关系,进而发生纠结,并给保险人行使代位权构成巨大障碍。这一困境的根本原因是其背离了保险法损失补偿原则着重于分配补偿结果而非请求权的主旨。为此,有必要从英美法系权利法定代位的安排中寻求制度借鉴,消解双重法律关系纠结的困境。

China＇ s insurance subrogation system is confronted with the confusion of two kinds of legal rela- tionships due to the arragement of legal assignment of rights of claim. The embodiment of this predicament is that the relationship between the insured and the third party which should have been the main line of insur- ance subrogation system is confused with that of insurance contract between the insured and the insurer, and thus has posed a great obstacle to the enforcement of insurance subrogation. The fundamental cause of this dilemma is that the present arrangement has departed from the indemnity principle of insurance law which emphasizes the distribution of compensation result but not that of rights of claim. Therefore it is necessary to draw on the experience of legal subrogation of rights of claim of common law system to remold China＇ s in- surance subrogation system, which would address the problem of confusion of two kinds of legal relationships.