"Analysis of forty-fifth of the motor vehicle traffic accident liability compulsory insurance Ordinance"



Premier Wen Jiabao signed in March 28th 462nd decree of the State Council, formally promulgated the "motor vehicle traffic accident liability compulsory insurance regulations" (hereinafter referred to as "Regulations"), regulations will be formally implemented from July 1st this year.
From the "Regulations" the full text can be seen: the "Regulations" issued to implement the "specific requirements on the establishment of motor vehicle traffic accident liability compulsory insurance system and the road traffic accident social rescue fund system of road traffic safety law", is to protect the interests of the masses, and promote the effective measures in road traffic safety.
"Regulations" explicitly the motor vehicle traffic accident liability compulsory insurance system applicable scope, the principles, the insurance rights and obligations of the parties concerned and the supervision and management institutions, which plays a very important role in the smooth running of the motor vehicle traffic accident liability compulsory insurance system.
"Formally promulgated regulations", as some time ago because of "road traffic safety law" on the implementation of "motor vehicle third party liability compulsory insurance system" in our country caused in the judicial practice and theoretical disputes ended. However, careful analysis of the "Regulations" the provisions of article forty-fifth, also found that this period is not enough perfect. Here, only from the personal understanding of the point of this analysis, I hope you experts.
One, the "Regulations" the provisions of article forty-fifth of understanding
"Forty-fifth regulations" stipulates: "the owner of the vehicle management, since the implementation of these regulations within 3 months from the date of the insured motor vehicle traffic accident liability compulsory insurance; before the implementation of these regulations has been insured commercial motor vehicle third party liability insurance (hereinafter referred to as the commercial three party insurance), the insurance expires, it shall insurance compulsory traffic accident motor vehicle liability insurance (hereinafter referred to as the compulsory insurance)."
This article, divided into two parts, to understand
1, the upper part: the vehicle owner, manager since the implementation of these regulations within 3 months from the date of the insured motor vehicle traffic accident liability compulsory insurance.
That is to say, the vehicle owner, manager (except for the army, armed police vehicles) must be in the July 1, 2006 to September 30, 2006 this period of time, to complete the compulsory insurance insurance. Considering the amount of automobile in China is huge and handling the formalities insurance efficiency problem, "Regulations" provisions of the buffer period of three months may be a bit too long, but is absolutely necessary.
2, the lower half part: insurance period has been insured commercial motor vehicle third party liability insurance, before the implementation of these Regulations shall be compulsory traffic accident liability insurance, the insured motor vehicle.
For the provisions of this part, we can have a different understanding, which I thought would be controversial in judicial practice in the future part.
First of all, from the literal can be understood as the following three meanings:
First, in July 1st before the insurance business of three party insurance, must be in the July 1st to September 30th this period of time the insured motor vehicle traffic accident liability compulsory insurance;
Second, July 1st years ago the insurance business of three party insurance, if expired insurance before September 30th, must be in the insurance after the expiration of the September 30th prior to the insured, compulsory insurance.
Third, July 1st years ago the insurance business of three party insurance, if the insurance is due in September 30th, can be inside three months after carrying out compulsory insurance in the insured 'regulations', also can be in the business of three party insurance to the insured on the expiry of the period of compulsory insurance. That is to say, the owner or manager of this part of the vehicle, can be implemented in three months in the "Regulations", the commercial three party insurance before the due date, not insurance compulsory insurance.
The third layers of meaning, the front half part of the "Regulations" in accordance with the provisions of article forty-fifth apparently contradictory, on the one hand provides the vehicle owner, managers must be in the regulations in force within three months after the insurance compulsory insurance, hand requirements for commercial three party insurance has not expired, may three insurance expires insurance compulsory insurance. The focus of contradictions and fell to the commercial three party insurance. That is to say, the current commercial three party insurance for the compulsory insurance alternative? Insured commercial three party insurance may not cover the compulsory insurance? If the answer is yes, then the forty-fifth is no problem. However, if the answer is negative?
Two, the current commercial third party liability insurance and compulsory liability insurance dispute
First look at the following example:
Case 1: the owner of a car in 2004 May Xue will lend Hu use. On the same day, Humou driving cars will pass through the road tank in a collision on the ground, caused the injury. Afterwards, pool will Xue, Hu two people and a vehicle insurance unit Xue an insurance company to court, require the insurance company to compensate the economic loss in the third party liability insurance liability limit. The court held that, in view of legal norms, the country has not yet promulgated the compulsory third party liability insurance, the vehicle owner Xue with insurance companies signed the third party liability insurance is not regarded as the compulsory third party liability insurance, does not support a requirement on the pool. Trial court that, although the third party liability compulsory insurance system has not been established, direct liability but not for this reason from insurance company. The decree of the insurance company directly full compensation for economic loss of 250000 yuan.
Case 2:2004 year in June 28th, Chengdu citizens Wang from crossing the road down the bus, was knocked down by a minibus. The driver Wu in the event of no fault. Wang on the basis of the new "road traffic safety law" provisions of article seventy-sixth, will Wu Liangda to court. The three party insurance claims Wu to insurance company. Insurance companies, insurance third party liability of the insured, is a commercial insurance, compensation principle is "the responsibility of payment", Wu has no responsibility, and therefore not covered. After the court hearing that, Wu buy third party liability insurance belongs to the compulsory insurance, insurance companies to pay the amount of compensation to determine total more than 2 yuan.
Case 3:2004 year in May 6th, Huang driving a truck owners to roadside repair, but the error will drive in the car repair Zhao injury. Huang full responsibility. Zhao, the owner will Huang Yi and the insurance company the prosecution to the court, three defendants asked for compensation for the loss of 50000 yuan. To think, the car in the compulsory third party insurance, therefore, the cost should be paid by the insurance company, the insufficient part only by their own compensation. The court thinks, the third defendants are insurance contract relationship between the defendant and the second, without any legal relationship with the plaintiff, the defendant can only from second to third the defendant claims that insurance contract legal relationship, dismissed the plaintiff's litigation request zhao.
Case 4:2004 year in December, were injured in a traffic accident civil Lee, according to the relevant provisions of the "road traffic safety law" article seventy-sixth of the insurance company to court, claim compensation for the losses. The insurance company said, in this case the third party liability insurance as commercial insurance is not compulsory liability insurance, not to blindly apply seventy-sixth. The court thinks, has not yet been introduced, corresponding in compulsory motor vehicle third party liability insurance administrative regulations, insurance company does not have fault, the victim according to "road traffic safety law" stipulates that the seventy-sixth insurance companies will be listed as the direct insurance companies stand to the right, is not appropriate. Ultimately rejected Lee's lawsuit.
From the above four cases can be seen, "Regulations" promulgated, the judicial practice of the commercial three party insurance can be seen as an alternative to compulsory insurance was controversial, judgment is different, and each of the truth. In fact, in our country is about application of motor vehicle third party liability compulsory insurance law has been in force in the past two years, in the judicial practice, but because there is no legal provisions of compulsory insurance and have to let the judge according to the personal understanding, the commercial three party insurance as or not as compulsory insurance to assume responsibility, and make decision, how many also reflects the legislation in our country, therefore, the relevant parties hope to "Regulations" after the introduction can have a clear view. Especially our country motor vehicle retains the quantity is huge, it is difficult to overnight requires all automobiles insurance compulsory insurance, want to have a transition between the compulsory insurance and commercial insurance, how to deal with the relation between the three party insurance and compulsory insurance during the transition period, as soon as possible to implement the "road traffic safety law" legislation intention, and important guarantee of road traffic accident victims receive timely legal rights, everyone is one of the key problems in waiting.
However, the published "Regulations", perhaps to avoid contradictions and no previous case evaluation, the commercial three party insurance and compulsory insurance relationship during the transition of how should keep silence. Through careful analysis, we can see that the "Regulations" published in the name of previously published draft made changes, "motor vehicle third party liability compulsory insurance system" to "motor vehicle traffic accident liability compulsory insurance system". The name change, perhaps is to prevent people will be compulsory insurance and commercial three party risks confusion. At the same time, the "Regulations" article forty-fifth clearly appeared the word of "commercial motor vehicle third party liability insurance", could see that the "Regulations" makers hope the two types of insurance to distinguish carefully. However, since the "Regulations" to the current commercial three party insurance can during the transition period instead of compulsory liability insurance of this issue is not clear, but also made conflicting requirements in the forty-fifth article, various disputes so in judicial practice, commercial three party insurance in the transition period, whether can be seen as a substitute for compulsory insurance. It will appear.
Three, the "Regulations" in the provisions of article forty-fifth contradictory consequences
As has been noted, "the provisions of the two part of the article forty-fifth of Ordinance" is a contradiction. The root of the conflict is because the "Regulations" not on the three party commercial insurance and compulsory insurance in relation to the transition period stated. Here is an extreme example to illustrate.
As everyone knows, the compulsory insurance for the compensation object, scope of liability, imputation principle and methods of payment than the commercial three party insurance even more broadly, the rate will be much higher than the commercial three party insurance, all motor vehicles, the management of people escape pay high insurance premiums, the reasonable approach will be in June 29th this day will be the original commercial three party insurance refund, and re insurance one-year commercial three party insurance, then he will be valid until June 29, 2007 commercial three party risk due to insurance compulsory insurance, and if all the vehicle owner, managers have to choose this method, then, the date of the implementation of compulsory insurance is in fact delayed until 2007 June 29th, although in July 1, 2006 after the new car will be insured on compulsory insurance for motor vehicles in our country, but the large quantity, is not what.
So the question is, if the vehicle traffic accident occurred after July 1, 2006, and the motor vehicle shall have no responsibility, the rights of the victims of the "Regulations" to get the security?
From the "Regulations", there are two ways to get compensation for victims. First, by insurance companies in the compulsory insurance liability limits compensation, second, by the road traffic accident social rescue fund to pay the rescue or funeral expenses. ②
However, because of the motor vehicle shall not insurance compulsory insurance, the insurance company will naturally defense, commercial three party insurance is not compulsory insurance, and exclusions. Then only by the rescue fund to take? But a closer look at the source of the rescue fund the rescue fund, the main source is the insurance company insurance premium income. But a large number of motor vehicle compulsory insurance is not insured, the fund is only feed on illusions.
After this, in fact will be legal, regulations for the protection of the rights of victims are road traffic accidents made detailed provisions, the victim still claim strange results no door. The victim in this case to resort to legal action is the inevitable choice.
From the case can be predicted, the judge then of course will make several different judgments:
First, the insurance company of business of three party insurance as a compulsory insurance, decision by the insurance company pay.
Second, sentencing perpetrator bear.
Third, does not support the request.
Three kinds of circumstances, is not what we want to see. But I think, the first sentence is more likely, for the following reasons:
First of all, "road traffic safety law" seventeenth stipulates clearly stipulates: "the compulsory third party liability
Insurance system, and set up social rescue fund for road traffic accidents. The specific measures shall be formulated by the state council." Therefore, not because the State Council promulgated the "motor vehicle traffic accident liability compulsory insurance regulations" will deny that our implementation is in fact the motor vehicle third party liability compulsory insurance system.
Secondly, the current commercial three party insurance clause, although rates is not in accordance with the "road traffic safety law" and "Regulations"
Regulations, but the implementation is a compulsory administrative in nature, and local governments across the country have stipulated not insured commercial three party insurance, motor vehicles do not need, not through the years, vet, but not on the road, so, the insurance company of business of three party insurance is in fact the motor vehicle third party liability compulsory insurance.
Finally, and most important, is the "Regulations" article forty-fifth: "the insurance expires has insured commercial motor vehicle third party liability insurance, before the implementation of these Regulations shall be compulsory traffic accident liability insurance, the insured motor vehicle." The provisions of this article shall direct that after the formal implementation of "Regulations", if the vehicle has a business of three party insurance, can make the motor vehicle shall fulfill the insurance compulsory insurance obligations until the commercial three party insurance expired, that is to say, the "Regulations" although not explicitly stated, but tacitly approves the commercial three party insurance can replace the function of compulsory insurance and three party insurance expires. Why do you say that?
1, if the commercial three party insurance in the transition period is not a substitute for compulsory insurance function, motor vehicle shall have insured commercial risk of the three can be in the insurance expire until after insurance compulsory insurance, motor vehicle insurance is the compulsory insurance party injustice. To understand this, just imagine a only a cover for the commercial risk of the three vehicles and a insurance compulsory insurance of vehicle traffic accidents, the responsibilities of both sides are equal, the same loss. So, only against risk of the three party but can quickly obtain compulsory insurance system, liability and dictating insurance compulsory insurance side was subject to the insurance company of business of three party insurance, deductible for sharing the disclaimer that it is difficult to obtain timely and full payment, even had to go long road of litigation. The insurance compulsory insurance side, of course, is not fair.
2, if the "Regulations" makers default to the commercial three party insurance can replace the function of the compulsory insurance, during the transition period, all problems be smoothly done or easily solved the above all. Why in the formal implementation of "Regulations" has given a transitional period of three months, why did not specify how to deal with the relationship between commercial three party insurance and compulsory insurance in the transitional provisions, why can such commercial three party risk due to insurance compulsory insurance, because in the eyes of the legislators, business three insurance can undertake compulsory insurance functions during the transitional period. According to this understanding, the "Regulations" article forty-fifth does not exist what problem.
Therefore, as long as the existence of the above explanation, then before, from today to July 1st "Regulations" formally implemented, three months after the implementation of "Regulations" in July 1st and in June 29th, even until 2007, as long as the vehicle insured commercial three party insurance and uninsured compulsory insurance, judges' decision can be based on the potential implications of article forty-fifth of the regulations' by commercial three party insurance compulsory insurance liability undertaking.
Four, several suggestions
Because the "Regulations" on how to deal with the transition period commercial three party insurance and compulsory insurance of independent coexisting, safeguard the traffic accident victims rights and better, and make the vehicle side to abide by the law and timely insurance compulsory insurance for equality and justice in the three aspects of the problem not speak in detail and uninsured in the compulsory insurance the motor vehicle party at the time of the accident, and has forty-fifth about "before the implementation of these regulations has been insured commercial motor vehicle third party liability insurance, the insurance period, shall be the insured motor vehicle traffic accident liability compulsory insurance", people have to produce the "Regulations" is the default for three party commercial insurance of compulsory insurance a substitution effect.
Of course, this understanding, is popular for motor vehicles and the victim side, but the insurance company party would be unbearable. Because the compulsory insurance itself is the commercial operation mode of operation, in order to protect the solvency of the insurance company, the compulsory insurance can be healthy and sustainable management, should not let the imperfect legislation by the consequences of the insurance company to bear alone. Therefore, suggestions are as follows:
1, the "Regulations" revision is not realistic, recommended the introduction of judicial interpretation. On the "Regulations" in article forty-fifth of the "before the implementation of these regulations has been insured commercial motor vehicle third party liability insurance, the insurance period, shall be the insured motor vehicle traffic accident liability compulsory insurance", interpreted as "is due within three months of the three risks in the formal implementation of" Regulations "after, in three insurance expires insurance compulsory insurance, if it is in the" Regulations "formally implemented three months after the expiration of the, must also be in the" Regulations "formally implemented within three months of insurance compulsory insurance."
2, the introduction of judicial interpretation, the "Regulations" formally implemented within three months, the vehicles and pedestrians were insured for commercial three party insurance or insurance compulsory insurance of vehicle traffic accident to deal with clearly defined.
3, the insurance companies should also advance to clean up their own customers, and do the customer's ideological work, in the formal implementation of "Regulations" date, concentrated force as soon as possible in three months has accepted three party insurance insured compulsory insurance work, prevent leakage protection, to eliminate hidden dangers.

Notes
The motor vehicle insurance practice, first day cover, second days of zero insurance to take effect in June 30th July 1st, the insured must be zero, effective, so in June 30th already must insure the compulsory insurance. To insure the commercial three party insurance must be in June 29th and before.
The establishment of social rescue fund for road traffic accidents in twenty-fourth countries' regulations' (hereinafter referred to as the rescue fund). Any of the following circumstances, personal injury victims of road traffic accidents in the funeral expenses, the cost of some or all of the rescue, the rescue fund to advance, rescue fund management institutions have recourse to the responsible person of road traffic accident: (a) to save costs more than the motor vehicle traffic accident liability compulsory insurance liability limit; (two) the accident motor vehicle did not participate in the compulsory motor vehicle traffic accident liability insurance for motor vehicles; (three) the hit and run.
The 'regulations' source twenty-fifth rescue fund include: (a) extracted according to a certain proportion of motor vehicle traffic accident liability compulsory insurance of the insurance funds; (two) the management of all the people, fines for not in accordance with the provisions of the insured motor vehicle traffic accident liability compulsory insurance of motor vehicle; (three) rescue fund management institutions according to the road traffic accident responsibility person recovery of funds; (four) rescue fund fruits; (five) other funds.