责任保险中的连带责任承担问题——以机动车商业三责险条款为分析样本

On the Issue concerning Bearing Joint and Several Liability in Liability Insurance

当责任保险中的被保险人与共同致害人一起对受害第三人承担连带责任时,保险合同格式条款能否将该连带责任从保险责任中加以排除,这是司法实践中存在较大争议的问题。争议的焦点在于,机动车商业三责险等一般责任保险中的"按责赔付"条款能否在司法判决中得到承认并加以适用。通过对责任保险的责任内涵及责任保险独特的"摆脱不利"等保障功能的分析,从责任保险格式条款内容控制的角度,主张连带责任的免除条款构成格式条款的"意外免责"条款,其免责效力不应得到承认而应受到限制。

An issue of substantial controversy in insurance adjudication concerns joint and several liability in the context of liability insurance. Where the insured and a joint tortfeasor are jointly liable to the third party victim of the tort, if the joint and several liability for tort can be justifiably excluded by the liability insurer？ The point of dispute is, in the line of general liability insurance such as non-compulsory commercial automobile liability insurance, whether the ＂indemnity according to liability＂ clause therein shall be judicially recognized and applied. Based on an analysis insurance and of its unique protective function of the meaning of ＂ liability＂ in liability of ＂adversity evasion＂, this article firstly makes an initial interpretation to the ＂ indemnity according to liability＂ clause. This is followed by the argument, from the perspective of content regulation of adhesive clauses in liability insurance contract, that exemption of joint and several liability for tort is ＂exemption of accidents＂ the effect of which shall not be recognized but be restricted instead.