[Abstract]: with the continuous pilot and promotion China Insurance Industry Association platform recovery mechanism, in terms of reforms in an orderly way, legislation adjustment and the vast number of consumers of insurance service of higher expectations, for the majority of the insurance company legal workers, increasing various legal recourse cases will be the future development trend can not be avoided. The purpose of this paper is to conform to the development trend of the auto industry recovery, combined with the current compensation cases in forensic practice present situation, such as the main focus, simply elaborated the personal point of view, for the trade share.

   □ Zhang Jun

   With the Chinese Insurance Industry Association, the industry of insurance information sharing platform for the whole process of subrogation claims under the project (hereinafter referred to as the platform to recover) pilot and promotion in all parts of the country, controversial insurance industry of vehicle damage insurance "without responsibility not to compensate", "after the first three damage claims" unspoken rule will be broken. Construction platform recovery mechanism, establish a good communication platform, smooth recovery to the insurance companies, and to use this platform to further improve the claims efficiency and service quality of the industry as a whole. But undeniable is, in view of our customers to buy insurance is not a (refer to all kinds of additional risks), insurance, insurance companies is not a clause is not a (A, B, clause C), motor vehicle damage standard is not a situation, future recovery platform after the official implementation, the insurance company in advance the amount of compensation greater than the later recovered amount phenomenon, will appear in a large number of claims in practice. The huge claims for any loss, insurance companies, it is difficult to bear the burden, especially in the current auto industry competition is becoming increasingly fierce, profit margins gradually decline in the market background. Therefore, for the majority of the insurance company legal workers, increasing various legal recourse cases will be the future development trend can not be avoided. The purpose of this paper is to conform to the development trend of the auto industry recovery, combined with the current compensation cases in forensic practice present situation, such as the main focus, simply elaborated the personal point of view, for the trade share.

   The development background, the insurance claim cases

    Civil recovery in simple terms, is the law for an economy to pay a certain obligation of civil subject to give the right to request compensation. It is based on a certain legal relationship, belongs to a specific civil subject, an uncertain creditor's rights. The so-called uncertainty, it refers to the exercise of right of recourse or not, is a full recourse or partial recovery, entirely specific civil subject to enjoy the right of recovery. That is to say, in the exercise of this right before is only a possible, only the exercise, to have legal significance of reality.

   In current civil law system in our country, many of the provisions relating to the right of recourse against the. For example, recourse to the debtor undertakes the guarantor exercising in complete security responsibilities; entitled to exercise to other partners partnership operators to repay debt than their partnership shall bear joint and several liability amount; compulsory exercise to other joint and several liability obligations to others assume full responsibility of the right of recourse. Of course, right of indemnity insurance company also belongs to civil recovery column. The insurance industry, is also the most deeply felt the pressure from the earliest, is at the beginning of 2011, CCTV news events in motor vehicle insurance insurance industry "without responsibility not to compensate". Facing the challenge and the news media consumers depth and persistent reports, regulatory agencies at all levels and the insurance company under unprecedented pressure. "Subrogation" as the most popular terms when the insurance industry, overnight filled the entire insurance industry. But poring over October 1, 2009 began to implement the "the people's Republic of China Insurance Law" the sixtieth regulation, we find, the so-called "subrogation" is not what fresh products, the social question is not without basis, ostrich, ostrich like mode of operation to create a passive situation when the entire auto industry. Thus, only face the development situation, market to market, respect for the law, uphold the principle of industrial layout and planning management idea, scientific and rational long-term, is the only way out of the current insurance industry as a whole decadent predicament. This is also one of the deep background current China insurance industry associations, pushing the construction recovery mechanism platform.

   Two, the legal compensation type

   In current judicial practice, it can recover the simple legal cases, can be divided into four categories, namely, advance recovery of subrogation (i.e. platform recovery), legal recourse and other types of recovery. We especially need to point is that, despite the recent Supreme People's Court on the society published "on the trial of the law applicable to a number of road traffic accident damage compensation cases of interpretation (Draft)" (hereinafter referred to as "the draft") has not yet been formally promulgated and implemented, but given the relevant terms in the judicial interpretation is represent the general trend of current judicial environment, even has become the treatment of cases by the people's court system within individual areas. Therefore, the author in the classification of the existing legal compensation cases, also full reference to the "Regulations" the relevant provisions of the draft.

  (1) advance recovery

   Advance recovery, is a kind of legal recourse in most common types of insurance practice, the most familiar, in accordance with the law and its terms, respectively, "motor vehicle traffic accident liability compulsory insurance regulations" (hereinafter referred to as "Regulations") twenty-second, and "motor vehicle traffic accident liability compulsory insurance clauses (2008 Edition)" (hereinafter referred to as "the terms") the relevant provisions of article ninth. "Twenty-second regulations" stipulates: "any of the following circumstances, the insurance company compulsory insurance liability limit range pays rescue expenses in motor vehicle traffic accident responsibility, and shall have the right to recover the injurer: (a) did not obtain a driver's driving qualifications or drunk; (two) the insured motor vehicle stolen during the accident; (three) the insured deliberately causes a traffic accident. One of the circumstances listed in the preceding paragraph, the occurrence of road traffic accidents, causing loss to the property of the victim, the insurance company does not assume liability to pay compensation." "Provision" Ninth stipulates: "for compliance with the provisions of the rescue costs, insurance in medical expenses limit of indemnity in advance. The insured has no liability in traffic accidents, the insurance people to advance in the non responsibility for medical expenses limit. For other losses and costs, the company shall not be liable for payment and compensation. (a) did not obtain a driver's driving qualifications; (two) the driver drunk; (three) the insured motor vehicle stolen during the accident; (four) the insured deliberately causes a traffic accident. To pay the rescue expenses, the insurer has the right to recover the injurer." It is known from the above provisions, for driving without a license, drunk driving, robbery during the accident and the insured deliberately causes a traffic accident, the insurance company only to rescue expenses bear the responsibility to advance, and later to the perpetrator enjoys the right of recovery. "Draft" is the appropriate adjustment to the existing insurance companies the responsibility to advance. "Draft" the seventeenth stipulation: "in any of the following circumstances causes personal injury, should be in accordance with the provisions of the road traffic safety law article seventy-sixth, by insurance companies in motor vehicle compulsory third party liability insurance liability limits the scope of compensation: (a) did not obtain a driver's driving qualifications, drunkenness, drug abuse, driving motor vehicle traffic accident of narcotic drugs or psychotropic drugs after; (two) the insured deliberately causes a traffic accident; the insurance company to claim compensation from the date of the insured person, have the right to recover. Calculation of limitation from the insurance company on the date of the right of recourse against the actual compensation. Insurance companies in the same suit to the insured claims the right of recourse, the people's court shall be trial and decision." Rule eighteenth: "without permission to drive others to motor vehicle traffic accident, the vehicle by the use of liability to pay compensation beyond the motor vehicle third party liability compulsory insurance liability limit damage to bear. The owner of the vehicle is at fault, shall bear the corresponding liability for compensation." Compared to the "Regulations" and "terms", we can find the change. First of all, "draft", for the driver license, drunkenness, drug abuse of narcotic drugs, psychotropic drugs, driving motor vehicle traffic accidents, the insured intentionally create traffic accidents or unlicensed motor vehicle driving others (including robbery) has the traffic accident, the insurance company will compensate in the compulsory motor vehicle third liability insurance liability limits. Secondly, for the undocumented, drunkenness, drug use, abuse of narcotic drugs, psychotropic drug driving motor vehicle traffic accidents or the insured deliberately causes a traffic accident, the insurance company to claim compensation from the date of the insured person, have the right to recover. Obviously, "the draft" conforms to the trend of the current judicial practice, expand the scope of the insurance company paid. At the same time, the robbery and other unauthorized person driving motor vehicle traffic accidents, the insurance company claim out of interests outside. Although the "draft", the original "advance" one word changes to the "compensation", but in view of the clause internal legislation spirit still is in "compensation after the first chase" advance nature, therefore, we will define the legislative changes may take place in the future for advance recovery of legal recourse type within the.

　(2) subrogation (platform recovery)

   The legal basis of subrogation is the "insurance law" of the people's Republic of China the first paragraph of article sixtieth. The clause: "because the third of insurance symptom damage caused by the accident insurance, the insurance people paid indemnities to the insured, the amount of compensation, the scope of subrogation insured indemnity against the third party rights." On the basis of current legal platform recovery mechanism China insurance industry associations, the main push, also from this. The essence of subrogation, is due to all kinds of insurance accident (including but not limited to traffic accident) disputes, the insurance company in advance to the insured liability, the obtained the original belongs to claim insurance people (i.e., against third parties claim). Because of the law in the legislative structure is arranged on the "insurance law" of the people's Republic of China property insurance contract chapter third section, from the literal understanding of intention is only for the type of property tort liability in the subrogation rights loss. However, in the current judicial environment, rights and interests of recovery in auto insurance industry insurance company is much more than this. At the same time, because the law for Chinese insurance industry association main platform recovery mechanism also comes from this article, therefore, we can also be called as a platform to subrogation recourse. Manifests the platform recovery in legal recourse in the platform, mainly refers to the compensation, insurance companies because the differences between terms, therefore, the difference of traffic accident insurance and other reasons, led to the insurance company compensation amount is greater than to other insurance companies to recover the amount of responsibility, the insurance companies to maintain their own rights and interests and to responsible for the claims of the other side line of legal action to recover.

  (3) the legal recourse

   Legal recourse, as the name suggests is the basis for the current civil law, for the loss caused by road traffic accident, the insurance company to assume the liability for compensation after the accident, the other party or third party (in particular to the parties involved in the accident of third people, is different from the liability insurance in third, please enjoy rights recovery). The civil law, civil law refers to the "other than the people's Republic of China Insurance Law". In the statutory compensation range, according to the nature of the legal relationship of different recovery, we can divide them into tort compensation, breach of duty dereliction of duty, such recovery recovery recovery infestation class, class type.

   A infringement indemnity. The legal basis for "general rule of the civil law", "Supreme People's Court on the trial of personal injury compensation case applicable legal interpretation", "the people's Republic of China Tort Liability Act", "draft" and other relevant laws and regulations, caused by traffic accident parties of all kinds of tort compensation sharing. Such as "the draft" on thirteenth multi vehicle accidents, some uninsured motor vehicle, the insurance company in insurance liability limits for beyond the insured party shall bear compensation share, have the right to exceed a part to uninsured party compensation responsibility the provisions of article eighteenth; the others without permission driving motor vehicle traffic accidents, which exceed the limits of liability compulsory insurance and loss, by the provisions of unauthorized driver shall assume the liability of compensation; twenty-third motor vehicles in the tenth paragraph of the assembly or has scrapped a traffic accident, beyond the compulsory insurance liability quota and loss, as prescribed by the assignor and the assignee shall assume the liability of compensation; twenty-fourth ("the Supreme People's Court on the trial of personal injury compensation case law applicable to certain questions explanation" Ninth) the employer or accept the services of a party of responsibility, to the intent or gross negligence of the staff or provide labor services shall recourse provisions. For example, "the people's Republic of China tort liability law" article thirty-fourth of the labor dispatch unit is at fault shall bear supplementary liability provisions; thirty-seventh the provisions about hotels, shopping malls, banks, railway stations and places of entertainment, management of public places or public activity organizer shall should bear the liability for compensation; forty-third a ("draft" twenty-eighth) because of quality defects of products, the product producer (or tuner) shall bear the corresponding compensation liabilities; seventy-first to seventy-sixth of engaged in highly dangerous operation caused losses to others, shall be prescribed by the owner, operator or manager shall bear the responsibility for compensation; eighty-fifth to ninety-first ("the Supreme People's Court on the trial of personal injury compensation case applicable legal interpretation" sixteenth) because the object falling, falling, collapsed, throwing, dumping, stacking, scattered or other deficiencies to the safety and security obligations of public construction project liability for damage caused by the provisions. As "the Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case explanation" article third, article fourth for joint tort, joint dangerous act, tort liability joint and several liability and "economic tribunal of the Supreme People's court jointly and severally liable person about the verdicts of the compensatory debt should take what kind of procedure to the debtor recovery of the reply" joint and several liability of the infringer to other infringer compensation provisions.

   The B default class recovery. The legal basis for "the people's Republic of China", "general principles of the civil law of the people's Republic of China", "contract law of the people's Republic of China product quality law", "the draft" and other relevant laws and regulations, the parties share the breach of contract due to cause the traffic accident compensation issues. Such as "contract law" of the people's Republic of China on 191st due to defective donation, the donor shall assume liability to pay compensation; for example, "the people's Republic of China Consumer Protection Law" article thirty-fifth, "the people's Republic of China product quality law" forty-second, "the people's Republic of China Tort Liability Act", "for forty-third draft" on twenty-eighth because of quality defects, the product Sellers undertake stipulated liability; if the "draft" twenty-third (except for the fifth paragraph) in beyond the compulsory insurance compensation limit and loss, by the pledgee, motor vehicle repair operator, custodian, provide parking or drive etc. service operators, service or training services in the test driver, payment of the buyer, financing lease lessee, multiple transfers the last time the provisions of people, vehicles and scrap excited the assignor and the assignee shall assume the liability of compensation; twenty-fifth for highway management unit negligence liability regulations; and according to the "general rule of the civil law" article 111st and "Contract law of the people's Republic of China" 107th traffic accident damage due to other properties of breach of contract caused by the compensation of responsibility provisions (such as the rights and interests of profit from the parking lot vehicle lost etc.).

    The C class from duty dereliction of duty. Mainly refers to the traffic accident third people do not directly a tort or contract legal relationship, but because of its own defects caused by performing their functions, the matters of compensation for traffic accident damage. Such as "the draft" on twenty-seventh due to road design, construction defects caused by traffic accidents, by the design unit or the construction unit shall bear corresponding liability provisions.

    The D class from infestation. Mainly refers to the traffic accident third people do not directly a tort or contract legal relationship, but because of its behavior in the presence of significant interference to the public authority or private equity, liability for compensation of reasonable foreseeability and can prevent damage is responsible for damage. Infestation is one kind of tort form of independence in the Anglo American tort law, the tort law in China is not clearly defined, so special in the independence can be divided into a recovery type. In the form of, third people on public roads for stacking, dumping, scattered, obstruction of articles, although not directly form the collision accident, but because its hinder the normal traffic, which is dangerous to the road traffic safety, and finally induced traffic accidents, should be based on the specific case of causality and parties the degree of fault liability, sharing. In need of special note is, "the people's Republic of China Tort Liability Act" eighty-ninth, "the draft" twenty-sixth no intrusion upon infringement to make a clear definition, but its legislative intent can contain provisions on civil liability for such infringement. Therefore, in judicial practice, the exercise of right of recourse provisions we can also refer to the law.

   (4) other types of recovery. Mainly refers to the detachment in advance, subrogation recourse (platform, legal recourse beyond recovery), for non due to traffic accidents caused by the loss of the insurance company, the insurance company to exercise such rights according to law, atypical recovery type. The reasons for the different forms, with one single theory, it is difficult to be characterized, so called from other types of. For example, for the rights of recourse or material; because the insurance company staff job behavior constitutes the apparent agency, the insurance company's own interests loss, recovery and the resulting; because the insurance company staff dereliction of duty constitute third of unjust enrichment, the claim rights.

   Three, the current dilemma faced by the legal recourse and treatment recommendations

    According to the previous legal recourse experience, the author thinks that the current and future quite a long period of legal recourse against difficulties, mainly concentrated in the "high cost, difficult to implement". "High cost", refers to the insurance company to achieve recovery, pre investment and post recovery results seriously is not proportional, run behind one's expenses situation occurs from time to time. "Difficult to execute" is based on the current judicial practice, the people's court for most cases recovery insurance company claims, in the judgment of basic can support. But given the party claims by personal ability is limited, the case of recovery to solve civil judgment execution problems also plague insurance company, the insurance company often win cases, but not actually recover compensation payments. Is the so-called "win, lose the sale", on the other hand is exacerbated by the rising cost of recovery.

   The current China insurance industry association main platform recovery mechanism, the subjective intention is good, but also provides a great convenience for the vast number of consumers car insurance loss claims, but in actual operation is also facing many problems. For example, the bit insurance companies can not through the platform to the responsibility of the other insurance companies full recovery of pre compensation cost, if you choose to continue to recover, will spearhead the responsibility from other parties involved in the accident who claim compensation, rights and interests through the line of legal proceedings. This will return to the aforementioned problem, namely how to cross the "high cost, difficult to implement" circle. A more realistic case, is that some time ago caused the social repercussions of the car "vulnerable" case. In the face of the huge parts, repair costs, often far beyond the other party for the liability compulsory insurance and commercial three party risk limits, while the other party can not afford the responsibility. For such subrogation cases, once the platform can not recover the cost recovery of advance payments, line of legal action to recover only exists in the theory. Moreover, advance payments and the amount of insurance companies to recover the amount of platform of modern distance is short, this time did not have the responsibility to each other accident can not afford to lose the case, but the choice of the form of a lawsuit, the cost is too high, The loss outweighs the gain.; choose give up compensation, the compensation loss pill and only insurance companies themselves. Face dilemma, it's just like the old saying, "dummy eat Coptis chinensis, have cannot say painstakingly".

    In the face of these legal recourse in the dilemma, the author with the current insurance profession management present situation, proposed the following suggestions:

   1, strengthen legal post construction and Business Literacy, improve the recognition and processing capacity of various types of legal compensation cases.

   Through the above, we know that the legal compensation case variety, reference the legal basis for the trivial and complex, professional and strong, the higher requirement to the legal literacy. The insurance of legal proceedings, many of our basic legal as long as the master of "the people's Republic of China Road Traffic Safety Law of the people's Republic of China", "insurance law", "Regulations", "provisions" and the relevant judicial interpretations, which can deal with most of legal proceedings. What is more, some insurance companies, grassroots legal personnel, by other post left, half-way over legal position, or adjunct treatment of legal proceedings. Such personnel and Business Literacy, may be able to cope with relatively simple, single type insurance claims of legal proceedings, but in the face of increasingly complex legal compensation cases, obviously a bit too. Especially in the legal environment and market environment in the future can be expected, various types of legal recourse pressure is an irreversible trend of development. In this context, strengthen legal staff construction and service quality, enhance the ability to identify and treatment efficiency of various compensation cases, obviously is currently placed in the priority among priorities of each insurance company management layer.

   2, the transformation of the existing insurance service concept, improve service quality, reduce the number of all kinds of legal recourse cases from the source.

   The existing insurance services, regardless of is to improve the lawsuit cycle, or simplify the claims procedure, its essence is convenient to the insured or the three party to the insurance company paid. And for the legal compensation cases, in addition to pay compensation legally mandatory, other types of recovery is uncertain, subrogation (platform recovery) and statutory compensation cases, the insured or the three in the selection of claim objects, have certain autonomy. According to the characteristic of legal recourse case, adjust the insurance service concept, is obviously very necessary. For example, you can select to claim for the insurance company, but also can claim to the responsibility to each other the insurance company or other person responsible for the accident cases, the insurance company to the insured or the three report, in addition to accurately grasp the accident information, determining the loss, also should actively assist the insured or the three to the responsibility of insurance company or any other person responsible for the accident compensation; moreover, the platform recovery cases, through to the insured propaganda counseling, let the rate increases by understanding the mechanism of cost recovery platform and platform of the insurance claim more possible, and to assist the insured to the responsibility to each other the insurance company in insurance and commercial three party insurance within the scope of compensation, to make the insured waives the subrogation claim compensation way.

   Through the above measures, can be shifted by the insured or the three party claim object, but also can improve the insurance company's service quality, but also reduced the number of potential legal compensation cases, then to avoid post legal action to recover the risk.

   3, the recovery procedure, be as detailed, comprehensive, further avoiding the risk of late face legal compensation cases.

   For legal recourse procedure, the author's suggestions are: first, the insurance company in the acquisition of the right of recourse, should first study was to recover the property status, there is no preservation property, specific information, personal credit preservation property is good, except for the book of property, whether there are external debt, investment registered in the name of others or common property and other information. For the status of the Property Co., a difficult and high cost of litigation case execution time later, choose start recovery procedures, to improve recovery efficiency. Second, the executive is recovery, insurance companies in the people's court prosecution at the same time, also should be based on the survey of the party can be sealed up, detained by, freezing the property of the state, to the people's court for property preservation, prevent recovery of property transfer, avoid the implementation. Third, according to the legal relationship between the specific case and applied, and properly develop the responding program. To be able to add other shall bear liability for compensation according to law by the party, try to be added, to reduce implementation risk. Fourth, to get compensation rights award recognized the people's court, after the effective date of this judgment and timely communication with the people's court, coordinated later effective legal document execution matters.

   The platform from forensic recovery to a smaller amount of cases, the author suggests, platform all insurance companies in dealing with, for their timely the insured amount of compensation, liability insurance company the amount of compensation to each other, and the amount of compensation to realize real-time information sharing. When the difference compensation and amount of compensation, the insurance companies through the line of communication, coordination and deduction of the insured amount of compensation way, make up to the responsibility of the other insurance companies to recover the balance, so as to avoid the small amount of compensation difference problem.

   4, strengthen external communication, coordination of internal cooperation, the maximum improve recovery efficiency.

   To effectively solve the most effective means of legal recourse in cases of predicament, is communication. Whether it is with the request of the insurance subrogation claim is communication between people, or in handling various legal case and all levels of government functions between departments, the judiciary, the third party and the other party communication, or between the recovery mechanism construction and the insurance regulatory agencies, insurance companies, communication, or is within the insurance company, cross sectoral, cross position between business communication, are necessary. Only by giving full play to the functions of communication, effective coordination function, balance the interests of all parties, can really solve the current predicament of legal recourse, the maximum improve recovery efficiency.

   Four, the conclusion

   Legal recourse for vehicle insurance claim work, is not only the inherent ills, but also a new challenge. Said it "natural", because the insurance company is no stranger to the insurance legal recourse, especially in 2011 CCTV after exposure, because "no responsibility not to compensate" triggered by the legal recourse cases gradually increased, and how to improve the recovery efficiency, effectively save the loss is the insurance company's long-term problems. Say it "new", because with the continuous pilot and promotion Chinese Insurance Industry Association platform recovery mechanism, in terms of reforms in an orderly way, legislation adjustment and the vast number of consumers of insurance service and higher expectations, will make the insurance industry is facing tremendous pressure recovery. In the face of the old and new challenges, how to rationalize the recovery process, improve the recovery efficiency and improve the relevant system, will in the future a long period of time to haunt the majority of insurance practitioners. But only to face serious challenges, and efforts to the challenges into opportunities, to really crossed the bottleneck of the development of industry, and to seek the insurance industry more broad prospects for development.