论海上保险代位求偿权的效力

On the Effect of the Right of Subrogation in Marine Insurance

海上保险代位求偿权是保险人依据海上保险合同的约定向被保险人理赔后 ,取代被保险人之位向第三人请求损害赔偿的权利。该项权利的行使对保险人、被保险人以及第三人将产生不同的效力 :保险人可以自己的名义行使代位求偿权 ;被保险人可就未获保险赔偿的部分向第三人索赔 ,同时负有协助保险人行使代位求偿权的义务 ;保险人或被保险人基于代位求偿权的法律规定向第三人作出债权移转的通知后 ,第三人若向被保险人进行赔偿 ,将不产生债的清偿效力。

The right of subrogation is in the nature of a right that the insurer asks for indemnities instead of the assured against the third party when he has paid the assured under a marine insurance contract after an insurance casualty caused by the third party. The exercise of the right of subrogation has different effect on the insurer, the assured and the third party. The insurer is entitled to sue the third party in his own name; the assured still enjoys the right to sue the third party on the loss not to be paid by the insurer and bears the responsibility to help the insurer exercising the subrogation right; the third party against whom the insurer takes proceedings in virtue of rights acquired by subrogation from the assured is not entitled to escape liability.