员工以保险公司名义实施经济犯罪侵权责任形态研究

The Application of Tort Liability Apportionment in Civil Cases Arose from Economic Crimes Committed by Employees in Name of the Insurance Company

就保险公司员工冒用公司名义实施经济犯罪的案件,司法实践中保险公司的赔偿责任分担形态和赔偿范围有巨大的差异。对保险公司适用按份责任将不当减轻犯罪员工的赔偿责任,而连带责任则缺乏适用前提。最终责任人是保险公司的犯罪员工。从"先刑后民"的司法实践来看,应把《经济犯罪规定》第5条第2款规定的赔偿责任理解为相应的补充责任。确定保险公司承担补充责任的范围,应当有利于提高保险公司预防该类犯罪行为的注意义务,并赋予承担了补充责任的保险公司以追偿权,但该追偿权应该劣后于对受害人的救济。

In judicial practice,the form of apportionment of tort liability and scope of compensation in civil cases arose from economic crimes committed by insurance company employees in name of the company differ widely.The application of several liability to insurance companies will improperly reduce the scope of compensation of criminous employees,while joint and several liability lacks applicable premise.This article considers the criminous employee of the insurance company as the ultimate liable person,and thus,from the perspective of the judicial practice of"criminal procedure before civil procedure",the compensatory liability which stipulated in the second paragraph of Article 5 of Provisions on Economic Crimes should be interpreted as the corresponding secondary liability.Progressively,the determination of the scope of the insurance company’s secondary liability should be conducive to improving the duty of care of the insurance company to prevent such criminal acts,and entitle the insurance company that has borne the secondary liability with indemnity,but that indemnity should be inferior to the relief of the victim.