被保险人损害赔偿请求权的事先放弃之探讨

A Study of the Insured's Prior Abandonment of Damage Claim Rights

在我国《保险法》第61条规定中,被保险人放弃损害赔偿请求权的时间限制在"保险事故发生后",但是在实际生活中,存在"保险事故发生前"放弃损害赔偿请求权的情形。"保险事故发生前"可分为订立保险合同前与订立保险合同后两个时间段。笔者首先从事先放弃损害赔偿请求权的情形着手,考虑损害赔偿请求权与代位求偿权的关系,结合债权转让原理,分析被保险人事先放弃损害赔偿请求权对保险人代位求偿权的影响。然后明确订立保险合同前与订立保险合同后,被保险人放弃损害赔偿请求权导致的保险人的权利义务不同。最后提出完善我国《保险法》第61条的具体意见。

The sixty-one article of Insurance Law in China stipulates that the limited Time for the Insured to claim a damage is after the occurrence of an insurance accident.But in real life,there always exists a situation where Insured abandons his claiming right in advance before an accident happens.Prior to the occurrence of an insurance accident,there are two time periods:after a insurance contract conclusion and before an insurance contract conclusion.This thesis,firstly works on different situations of prior abandonment of the Insured's damage claim rights with the transfer of creditor's rights principles and then makes an analysis of the impact caused by the Insured's prior abandonment of his damage claim rights on the Insurer's subrogation rights,which fully combines relations of the two rights.Accordingly,it comes to a conclusion that different time periods(after a insurance contract conclusion or before a insurance contract conclusion)of the Insured to give up his damage claim rights will have different impacts on the Insurer's rights.Finally,this paper aims to give some suggestions on the sixty-one article of Insurance Law in China on its own basis.