我国责任保险法制改革之路径选择

The Path Choice for Reforming the Liability Insurance Legal System of China

责任保险以化解矛盾纠纷之功效,成为实现国家治理现代化不可或缺的重要手段。遗憾的是,我国责任保险法制因受制于"分离原则"的缘故,实务运作中问题迭出,导致责任保险快速化解矛盾纠纷的功效受到严重阻滞。为此,近代各国立法例莫不在兼顾"分离原则"基础上,设想出诸多制度来避免"分离原则"之弊病。然而,这些制度安排"为德不卒",迫使现代立法例在突破"分离原则"基础上制定出三种模式:直接请求权模式、参与权模式和防御义务模式。从责任保险缔结目的、主体权益保护以及纠纷解决效率考量,我国责任保险法制进行未来改革时,应该选择"防御义务模式",方能满足国家治理现代化之需求。

Due to its nature for resolving conflicts and disputes, liability insurance is an important means to achieve the modernization of national governance. Unfortunately, being subject to the separation principle China＇ s liability insurance legal system is fraught with problems in practice, thus seriously handicapped its capability for resolving disputes. Therefore ,while retaining the separation principle, many countries have strived to avoid the disadvantages of the principle through various system designs. However, these arrangements still have many flaws, which have forced the birth of three modes in modem legislations in breakthrough of the separation principle, namely, direct claim right mode, participation mode and the defense duty mode. From perspectives of the purpose of liability insurance, the protection of the principal＇ s rights and the efficiency of dispute settlement, China＇ s liability insurance should choose the ＂defense duty mode＂ to meet the needs of the modernization of national governance.