论责任保险对侵权连带责任的影响——兼谈侵权连带责任的未来

The Influence of Liability Insurance on Joint & Several Liability——And on the Future of Joint & Several Liability

侵权连带责任之实质是受害人赔偿不能风险的"内部转移"机制;相应地,责任保险则是一种"外部分散"机制。二者并存于同一法律体系必将产生一系列的现实问题,如连带责任的可保性、连带关系对责任保险风险的放大、保险合同中连带责任约定不明的解释、责任保险导致连带责任关系的进一步复杂化等。责任保险对连带责任人有利有弊:既可以通过责任保险转移风险,又会因责任保险而吸引受害人的索赔。对受害人而言,责任保险和连带责任则是两个功能相同的"深口袋"。通过连带责任关系,部分责任人的保险实际上覆盖了全体责任人的赔偿不能风险。基于现代风险的系统性特征,根据责任保险的发达程度逐步限制和废止侵权连带责任乃未来之趋势。

Joint several liability is an ＂internal-transformation＂mechanism of unable-compensation risks substantially; And comparably,liability insurance is an ＂external-transformation＂mechanism. The two mechanisms existing in a legal system should lead to a lot of practical issues,such as insurability of joint several liability,risk amplification of liability insurance by joint several liability,interpretation of insurance contract for joint several liability undefined,and more complicated relationship of joint several liability by liability insurance,etc..Liability insurance has both advantage and disadvantage for the responsible of joint several liability： the responsible could transfer its risks by liability insurance,and would attract claims for compensation by the victim.As for victims,liability insurance and joint several liability are two＂deep pockets＂with same function.Through connection by joint several liability,the insurance of partial responsible person（ s） covers the whole unable compensation risks from all responsible persons. In light of the systematic characteristic of modern risks,joint several liability should be restricted and abolished step by step in the future according to the development of liability insurance.