论再保险合同之法理构造——以我国“保险法第二次修改”为背景

Research on The Jurisprudent Construction of the Reinsurance——On the Background of the Second Amendment of the Insurance Law in China

再保险合同以危险承保责任之转移为核心,属于一种特殊之契约责任保险。再保险人与原保险人的内部关系之法理构造,应着重考量其商人保险之特质,围绕最大诚信原则与同一命运原则展开。再保险人与原被保险人的外部关系之法理构造,宜把握国际再保险业之未来趋向,赋予原被保险人之直接请求权。再保险人与侵权第三人的外部关系之法理构造,须顾及再保险交易之国际化及其惯例等因素,在再保险人请求权代位及其实现方式上,采由原保险人"合并行使"后"摊回"之立法政策。

Reinsurance contract,which focuses on the transference of the risk underwriting liability,is a specific agreement of the liability insurance.The building of the internal jurisprudent structure between the reinsured and insured should consider about the specialty of the commercial insurance and develop based on the principles of the utmost good faith and the identity destiny.The building of the external jurisprudent structure between the reinsured and insured depends on the tendency of the international reinsurance area and has to endow the insured with right of claim.The building of the external jurisprudent structure between the reinsured and the third-party infringer might adopt the legislative policy of the insured’s enforcement and share together on the basis of the elements of the internationalization and the practices of the insurance business considering the rights of claim subrogation and enforcement methods.