善意取得制度下保险人赔付的困扰与应对——从一起保险案例说起

The Insurer's Indecision to Compensate Under Bona Fide Purchaser Rule:A Case Study

随着我国经济的快速发展,作为朝阳行业的保险业也在不断地向着纵深发展,保险所涉及的各种法律关系也呈日趋复杂之势。例如,如果抵押人对该财产投了财产险,财产一旦受损,善意抵押权人通过设置的抵押权优先获得保险金,这从理论上来讲是没有任何障碍的。问题是为该财产投保的不是抵押人而是所有权人,那么,同案中,当所有权人遇上了善意抵押权人时,所有权人投保后其本可获得的保险金却由第三人抵押权人优先获得的话,其结果是否违背了所有权人通过投保转移风险的初衷。意即,当原权利人与善意的第三人之间发生了谁能获得保险金——这一经济利益发生根本性冲突的时候,我们应如何综合考虑保险法、合同法、物权法等各部法律所保护的利益主体之间的平衡,从有利于维护交易的安全和稳定的角度出发,通过对民法和保险法的相关法理进行分析、演绎,找到一个令人信服的合理赔付方案。

With rapid development of China＇s economy, the insurance sector which as a sun-rising industry, has been growing fast. Concurrently, the legal relation that refers to insurance also resembles a trend of being overly complicated. For instance, if a mortgagor bought an insurance policy for the property, then when it was damaged, the bona fide mortgagee could attain the indemnity preferably through the legal installment of mortgage. Theoretically, this rationale meets few obstacles. However, if the insured party is the owner rather than the mortgagor, then, the question is whether the indemnity which supposed to be earned by the owner that now belongs to the third party- the mortgagee, violating the former＇s original intent to shift risks through insurance policy or not？ In other words, when the conflicted interest over indemnity＇s possession happened between the owner and the bona fide third party, the question is how to find a credible solution by considering the trade-off among varied interested parties that protected by insurance law, contract law, property law and other laws comprehensively, while also analyzing and deducing from civil law and insurance law theory based upon a premise that in favor of transaction safety and stability