旅行社责任保险赔付制度之反思与重构

The Reflection on and Reconstruction of Payment System in Travel Agency Liability Insurance

现行法之所以强制旅行社投保旅责险,其主要目的在于为旅游事故受害人提供基本保障。然而,《旅行社责任保险管理办法》在诸多制度上沿袭了《保险法》关于自愿保险的规定,致使旅责险的制度功能难以彰显,立法目的难以实现。我国未来立法应当在厘清旅责险"第三者"范围的基础上,赋予受害第三者直接请求保险人赔付保险金的权利。无论是旅行社还是保险人,原则上不得撤销或解除合同,以最大限度维持合同之存续。旅责险的赔付范围限于受害人因人身伤亡而发生的财产损害,履行利益损害、财物损害以及精神损害等与基本保障无关,因此不应纳入赔付范围。保险人之免责事由应受严格限制,司法实践中常见的旅行社违法违规行为、履行辅助人故意行为等原则上不得作为保险人对抗受害人的免责事由。

Travel agency liability insurance means compulsory insurance with the travel agency＇s liability to indemnify a third party according to law as the subject insured. Under existing law, the travel agency shall take out liability insurance. The main purpose is to provide basic protection for victims of travel accidents, rather than to protect the insured. Obviously, there is a significant difference between compulsory insurance and voluntary insurance, whose purpose is to spread and transfer the insured＇s liability risk. Therefore, the system arrangement for the two should be different. Unfortunately, the current law does not distinguish between travel agency liability insurance and voluntary insurance. Therefore, a lot of issues deserve reflection and criticism. The insurer＇s payment objects include the insured and the third party, who have the right to directly request the insurer to pay insurance benefits for damage. The proposal does not significantly increase the burden on the insurer, because the insurer has two rights of defense, which include the insured＇s right to defend the victim and the insurer＇s right to defend the insured. According to Administrative Measures for Travel Agency Liability Insurance Article 2, the third parties not only cover the tourist, but also tour guide or tour leader that is designated by the travel agency to provide services to the tourist. Its purpose is to provide protection for the tour guide in the absence of social insurance. However, it is a matter of expediency rather than a long-term means of solving the social insurance problem of the tour guide. Future legislation should improve the tour guide employment scheme and achieve full social insurance coverage for the tour guide. The insurer＇s duty of payment should meet two basic elements, namely that the insurance contract is effective, and the insurance accident happens between the insurance periods. Travel agency liability insurance is a third-party beneficiary, so it should be different from the general contract when evaluating validity. Whether the insurer or the insured, the right to unilaterally terminate the insurance contract shall be imposed through strict limits. Not all the damages can be incorporated into the scope of the insurance compensation. The main purpose of travel liability insurance is to provide protection for victims of tourism accidents, which include basic life support and basic medical insurance. The reason for performing benefit loss is that the travel agency does not fulfill its contractual obligations or not fulfill contractual obligations completely, such as refusing to provide travel services, changing the itinerary without authorization, reducing the standard of tourism services, etc. Obviously, loss of performance benefit is not related to basic protection. Similarly, loss of goods and mental damages also has the same problem. So performance benefits, loss of goods and mental damages should be excluded from the scope of payment. The existence of the travel agency＇ s tort liability to victims is the basic condition that the insurer pays insurance money. In a travel agency liability insurance contract, the exemption clause should be strictly limited. For these reasons, such as intentional or gross negligence of the insured, illegal activities cannot be used as exemptions. In a word, the relevant provisions of Administrative Measures [2010] which makes it difficult to protect the interests of victims need to be reviewed. Future legislation should adjust the evaluation system of the insurance contract, clarify the scope of insurance coverage, and strictly limit the exemptions of the insurer.