利益冲突背景下责任保险人善意和解义务的构建

The Construction of the Good Faith Settlement Duty for Liability Insurance in the Context of Conflict of Interests

保险人与被保险人在责任保险和解中固有的利益冲突,以及保险人控制和解的事实决定了保险人具有滥用权利的自利倾向。为了防止被保险人免受第三人追索,以及免于向第三人承担超出保单限额之外的责任,有必要在肯认保险人和解控制权的同时配置以相应的善意和解义务。准信托关系兼顾了被保险人与保险人之间权利委托的依赖性和固有利益的冲突性,应当成为塑造和解关系构造的一个理想选择。基于这一关系定位,有必要以防止权利滥用作为构建责任保险人善意和解义务的价值导向,要求保险人在控制和解的过程中尽到善意义务,对于被保险人的利益给予犹如自己利益一般的同等关注;对于保险人违反善意义务而给被保险人造成权益损害的和解行为应当认定为构成恶意侵权,以跳脱出违约责任的救济缺陷,确保责任保险人切实履行善意和解义务。

The insurer has a self-interest tendency to abuse the right of control because of the inherent conflict of interests between the insured and the insurer during liability insurance settlement with the third party and the insurer's control of the settlement.In order to ensure the insured's right of being free from the third party's claim and the liability in excess of policy limit,it is necessary to impose the good faith settlement duty while recognizing the insurer's control of the settlement.Since quasi-fiduciary relationship gives consideration to both the dependence on the rights entrustment between the insured and the insurer and the inherent conflict of interests between them,it should be an ideal choice to shape the structure of settlement relationship.Based on this relation,the prevention of abuse of rights should be the core value orientation for constructing the good faith settlement obligation of the liability insurer,and requires the insurer to exercise good faith in the process of controlling the settlement and give equal consideration to the interests of the insured as to its own.Furthermore,the insurer's breach of the duty of good faith and causing the damage of the insured shall be identified as a tort in bad faith.This can help overcome the defects of relief for breach of contract and impel the liability insurer to fulfill the duty to settle with good faith.