On the "motor vehicle traffic accident liability compulsory insurance regulations" (hereinafter referred to as"Regulations") article22Four kinds of situations prescribed caused by traffic accidents led the victim to suffer damage, whether the compensation insurance, "clause" and the China Insurance Regulatory Commission two reply about this problem are the insurance company is not liable for compensation, coupled with the "Regulations" article22Provisions are fuzzy, resulting in the judicial practice and the application of different understanding of. In this paper, cross strong insurance regulations of the legislative purpose, insurance rates, insurance object analysis, the method is applicable, and the conflict between moral risk in five ways.    The legislative purpose, cross strong insurance regulations

    Chinese CIRC edited by the Legislative Affairs Office of the State Council, the "motor vehicle traffic accident liability compulsory insurance Ordinance interpretation" a book that the legislative purpose of the "Regulations": globally, motor vehicle due to the popularity of motor vehicle traffic accident has become an increasingly serious social problem. Personal, property damage accident victims to fill, how to make use of motor vehicles in use motor vehicles benefit at the same time take the responsibility, all this, not only relates to the individual justice, but also concerns the whole social justice. The traditional civil tort liability system. In response, the progressive performance for the imputation principle of no fault liability, namely motor vehicle traffic accidents, regardless of the perpetrators of the accident is fault, should others suffer damage especially personal injury liability for compensation shall be borne. Establishment of the principle of no fault liability, although the victim protection trend, but in the face of the liability for compensation, the offender may not have sufficient financial resources to compensate for the damage. Thus, the compensation liability for motor vehicle traffic accident liability compulsory insurance dispersed the perpetrators of the damage that becomes necessary. Therefore, the purpose of this set of regulations is to provide basic guarantee for the first motor vehicle road traffic accident victims, timely, reasonable to fill the damage, on the basis of this, by means of the social management function better motor vehicle traffic accident liability compulsory insurance has to perform government functions, promote road traffic safety, and maintain the safety and interests of society the public. Legislative Affairs Office of the State Council, the China Insurance Regulatory Commission responsible person "Regulations" answer the reporter asks the "Regulations" the main feature that:"One is to highlight the'People oriented'The protection of victims, to be timely and effective compensation as a primary objective."

    Therefore, the introduction of the "Regulations" to countries to buy the corresponding liability insurance through the compulsory insurance system of compulsory motor vehicle owner or the manager, in order to improve the third party liability insurance, to provide timely and essential guarantee for the traffic accident victims to the greatest extent, so that the victims to obtain timely and effective economic security and health treatment.

    Analysis of the rate of two, insurance

    "Regulations" provisions of article eighth of the CIRC shall motor vehicle traffic accident liability compulsory insurance business of insurance company verification of the situation, and to the public. According to the insurance company of business of compulsory motor vehicle liability insurance of the overall profit or loss situation, may require or allow insurance companies to adjust the premium rate.

According to the introduction to the applicant China Insurance Industry Association, since the2006Years7Month1"Regulations" formally implemented to date2007Years7Month1During the days in a year, the annual national compulsory insurance business premium income507Billion yuan, has not stopped the insurance liability insurance280Billion yuan, the corresponding compensation expenditures139Billion yuan, all kinds of operating expenses141Billion yuan, investment income14Billion yuan, thus calculated, cross strong insurance first year book of operating losses amounted to39Billion yuan. The association representatives questioned the audit report, based on the existing data, the comprehensive cost rate, cross strong insurance is89%The comprehensive cost, life insurance and accident insurance rate is about98%~99%The comprehensive cost rate100%That is neither profit nor loss, cross strong insurance to89%In that there10%Profit space.

    Question and its calculating Association although not enough to prove that cross strong insurance business must be profitable, but the "Regulations" in the form of law has determined the insurance company to carry out the compulsory motor vehicle third party liability insurance is"No profit, no loss of overall", have adequately protect the interests of insurance companies, so, even if the insurance company to assume the insurance liability, the liability insurance companies due to excessive losses, the insurance company can improve the rate of implementation not losses do not profit, but should not protect the insurance company through injury victims to obtain the insurance compensation interest. Otherwise, it is a violation of the compulsory insurance system into the original intention, therefore, the conflict of judicial practice considers more of the motor vehicle third party liability compulsory insurance and the nature of the public institution and government responsibility should aid, fully embodies its social security function.

    Three, from the insurance object analysis

    In judicial practice, cross strong insurance is"Go along with the car"Or"With the people of"Great controversies. Vehicle ownership is transferred, the insurance policy not to make corresponding corrections can deductible insurance company, the same vehicle different driving or the same person under different state driving traffic accidents, the insurance company is in the compensation can be treated differently?

"Insurance law" article49Although the provisions of the transfer of the subject matter of the insurance, the insured or the assignee fails to notify the insurer for the transfer of risk, the subject matter of the insurance increased significantly and the insurance accident occurs, the insurer does not assume insurance responsibility. But this is the provisions of the insurance contract, in the second quarter to person insurance contract there is no relevant provisions. The insurance contract is a contract format, "insurance law" have strict limits on insurance companies disclaimer, only to meet the exemptions of the law, the insurance company can exemption, in addition, the insurance company shall be liable. Regulations.22Only the provisions of the insurance companies for the property loss can be exempted from liability, exemption does not involve personal injury.

    "Regulations" article3The provisions"Said motor vehicle traffic accident liability compulsory insurance Ordinance, refers to the insurance company to the insured motor vehicle road traffic accidents caused by the vehicle, be casualties, property loss insurance victims except the people, be compulsory liability insurance compensation within the limit of liability."Therefore, the object of insurance companies the responsibility of insurance is the insured motor vehicle traffic accident compensation for damage, rather than the insured caused by driving traffic accidents damages of third people. Therefore, the insurance company"The car does not recognize people"What is the status, whether the driver is the legal possessor, without a driving license, driving, as long as it is caused by the insured vehicle traffic accident damage, in addition to the statutory exemptions, the insurance company shall be liable.

    And the application of the conflict between the four laws, regulations and relevant provisions

    (a) the insurance company should compensate

    In practice, the insurance company usually basis "motor vehicle traffic accident liability compulsory insurance clause" (hereinafter referred to as"Clause"Ninth and the insurance office letter)[2007]77And Insurance Regulatory Department letter[2007]327Due to the "Regulations", the reply No.22Four cases of traffic accidents caused by the provisions of the proposed compensation request to make a plea. "Provision" of article9The provisions:"The insured motor vehicle in the (a) to (four) the traffic accident one case, cause the victim to rescue the injured, the insurer after receiving written notice and medical institutions the traffic administrative department of the public security organs issued by the rescue expenses list, verify the administrative department of health under the State Council formulated by the traffic accident staff clinical guidelines for the diagnosis and treatment of trauma and the national basic medical insurance standard. In line 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.2007Years4Month10Letter day China Insurance Regulatory Commission "on the cross strong insurance related issues" (CIRC office letter[2007]77No. second is)"According to the "Regulations" and the "provision", the insured motor vehicle in did not obtain a driver's driving qualifications, driving drunk, the insured motor vehicle stolen during the accident, the insured intentionally making traffic accident cases of traffic accidents, causing the victim to rescue the injured, the insurer for compliance with the provisions of the rescue costs, 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."In November the same year Chinese Insurance Regulatory Commission in the "on the motor vehicle traffic accident liability compulsory insurance"Failure to obtain a qualification"Determination of reply "(CIRC office letter[2007]327That number)"According to the "Regulations" article22And the "motor vehicle traffic accident liability compulsory insurance clause" in Article9The provisions of article, did not obtain a driver's driving qualifications, the insurance company does not assume liability to pay compensation."

    But the "provision" is only part of an insurance company and the insured in the insurance contract, its nature is equivalent to the format of the terms of the contract, the CIRC's reply is not normative legal documents. They are not in violation of the provisions of laws and regulations. On this issue, "insurance law", "road traffic safety law" and "Regulations" has made the corresponding provisions. "Insurance law" article65The provisions:"The insurer of liability insurance of the insured to third party damage, in accordance with the law or the contract directly to the third party compensation insurance.""Road traffic safety law" article76The provisions:"Motor vehicle traffic accidents caused casualties, property loss, the insurance company in motor vehicle compulsory third party liability insurance liability limits the scope of compensation."This provision is no fault liability. According to the provisions, occurs between motor vehicles and non motor vehicle traffic accident of motor vehicle drivers, pedestrians and traffic accidents, even if the other party take full responsibility for the accident, the insurance company to assume all liability is the compulsory third party liability insurance in the liability limit. But come down in one continuous line with the law of "Regulations" article21The provisions"The insured motor vehicle road traffic accident caused by the victim, the personnel casualty, loss of property insurance of people outside, by insurance companies in accordance with the law in the motor vehicle traffic accident liability compulsory insurance liability limits the scope of compensation."Article22Provisions for undocumented, drunk, motor vehicle stolen during the accident, the insured and other four kinds of causes of traffic accident, 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. The resulting loss to the property of the victim, the insurance company does not assume liability to pay compensation. The two terms are also established the insurance company to assume the basic principle of liability without fault for the insurance accident, the victim of intentional behavior is the only reason insurance exemption, and the "Regulations"22The only provisions and causes loss to the property of the victim for the four case, the insurance company does not assume liability to pay compensation for victims of personal injury, not stipulated except responsibility. If the insurance company of the four kinds of situations can be excused, which means that the motor vehicle party serious fault and no fault when the victim, the victim has no compensation, so far, so the intent of the law is that the vehicle has the serious fault of the punishment, let its own responsibility, rather than on the protection of victims, and the punishment will be more or less because of motor vehicles limited ability for various reasons pass on to the victims, let the victim to bear the risk can not be compensated, which apparently deviates from the compulsory insurance system to protect the interests of the victims, safeguarding social stability purposes.

    Therefore, the author believes that, the "Regulations"22Four cases of these regulations, the insurance company should still be on the limit of liability compulsory insurance in directly to the traffic accident victims shall bear the liability for compensation, only on the four conditions to the victim caused property damage of exemption, "provision" article9Do not meet the "road traffic safety law" article76And the "Regulations" article21The provisions of clause, is null and void, it is suggested that the clause deleted.

    (two) the insurance company will have to recover the injurer

    "Road traffic safety law" only casualties of traffic accidents, the insurance company shall make provisions of compensation is not clear, the insurance company have the right to recover. Regulations.22The specified four kinds of circumstances stipulated by the provisions of the traffic accidents, the insurance company paid within the liability limit of the rescue costs to recover the injurer. The insurance company has no right of recourse claim is that, cross strong insurance contract is entered into the compulsory insurance company, if given the right of recourse, and there is no difference between the commercial insurance, compulsory insurance lost its value and significance to. The author thinks, the insurance company has the right of recourse.

    The insurance company and the insured is the two parties of the contract, the contract is entered into the system of compulsory, but the purpose is to protect the interests of the third parties in the contract, the rights of the victims to obtain the full safeguard, rather than let the insurance company as a serious fault or scapegoat is the subjective intent of the insured. The two parties of the contract for the maintenance of the interests of third parties as to the diligent and careful obligations, as an insurance company, the victim suffers from a personal injury, whether the insured motor vehicle has serious fault, should be in the limits of liability for compensation in advance. As the insured, motor vehicle driver's side, be duty driver prudent, in order to reduce the occurrence of traffic accidents, if because of serious negligence or intentional traffic accidents, as the counterpart of contract of insurance companies have no reason to assume full responsibility for it, so the insurance company Xianxingpeifu has the right to harm recovery. At the same time, give the insurance company to the right of recourse is conducive to the strengthening of the insured risk prevention awareness, the obligation to pay attention to.

    The four case, Harmer how to determine? Driving without a license and drunk driving traffic accidents, the car owners and drivers are the same person, the owner of the injurer. Car owners and drivers are not the same person, driving without a license for traffic accidents, because the owners will drive all of its vehicles to no driving qualified people, there are some subjective fault, so the owner and driver as a co perpetrator. Drunk driving traffic accidents, the driver's fault line caused by vehicles, all people can't control, so the injurer should the driver for motor vehicle. Motor vehicle stolen during the accident, the person in possession of the Department of motor vehicles of injurer. The insured intentionally caused the traffic accident, the insured is harmer.

    The scope of compensation on insurance companies, there are also often dispute in practice. From the "road traffic safety law" article76Can see, the insurance company on the victim's compensation is not divided fault liability and compensation to the victim, the party is in accordance with the division of responsibility shall be paid in proportion, which leads to the difference between the compensation. For example, in one case, the insurance company to compensate the victim11Million yuan, and the side of the fault based on to recover, and in accordance with the division of responsibilities, the party just compensation for the victims5Million yuan, the insurance company shall recover? Cross strong insurance with the public nature of public welfare, and the social responsibility can not because of the fault of all passed on to him, because the party has already paid the price for his fault, which is divided according to the proportion of liability should be paid5Million yuan. And cross strong insurance goal is to share the party to a certain extent, economic burden, if the public burden of responsibility to the party outside, then with the legislative intent of fully draw further apart. To sum up, the insurance company can only be from the accident compensation to victims of duty ratio divided by the amount of.

    Five, the moral risk prevention

    May cause moral risk is that the insurance company of the "Regulations"22One reason, four cases as stipulated in the damage did not lose they think, if the insurance company for the loss due to traffic accident insured gross negligence or intentionally caused by the compensation case, certainly will make the insured the lack or loss (rotate the22(on the next page)17Page) road safety awareness, moral risk caused by unnecessary. This worry is unnecessary.

    First, a behavior is composed of many legal norms, the insured gross negligence or intentional causes the traffic accident which relates to the civil damage compensation, may also lead to administrative penalties, such as "road traffic safety law" article99The provisions"One of the following acts, by the traffic administrative department of the public security organ in two hundred yuan of above two thousand yuan fine below: (a) has no motor vehicle driving license, motor vehicle driving license is revoked or motor vehicle driving license is driving a motor vehicle is detained;"And for the case can also be in fifteen days detention. The article91Also on the vehicle driving after drinking made the corresponding provisions of punishment, causing serious traffic accident criminal responsibility shall be investigated for, such as "criminal law" article133Provisions, in violation of the traffic regulations, so the occurrence of major accidents, causing serious injury, death or causes heavy losses of public or private property, office3Years in prison or detention. "Interpretation" of article2Article2Paragraph: traffic accident injuries to more than one person, negative accident or the primary responsibility, and has one of the following cases, offence penalties: (to traffic1Under the influence of alcohol, drugs) to drive a motor vehicle after (2) driving a vehicle without a driving license; if the insured intentionally create traffic accidents, then according to the consequences of the accident to the crime of intentional injury or intentional homicide crime.

    Secondly, the insurance premium and motor vehicle and driver safety driving hook, implementation"Jiangyoufalie"Improve the policy, law compliance awareness through economic means, to improve road traffic safety. "Regulations" to require the relevant department to establish the compulsory motor vehicle traffic accident liability insurance and violations of road traffic safety and road traffic accident information sharing mechanism, the insured pay insurance premiums and whether there is a traffic violation hook. Driving safely will enjoy preferential rates, often the perpetrators will afford the high premium. The establishment of such a"Jiangyoufalie"The floating rate mechanism, one can use means of adjusting the rate of economic lever, to improve road traffic safety law consciousness of driver, the driver driving safety supervision, effectively prevent and reduce road traffic accident. On the other hand, the government of road traffic safety management by means of market mechanism, transition of the government function, improve road traffic safety management efficiency.

    Thirdly, it stands to reason, not a driver to traffic accidents, and failure to obtain a qualification or drunk driving, the driver itself is at risk, whether the insurance company for such losses of the traffic accident compensation is not enough to become a driver to indulge yourself without obtaining a driving or drunk driving reason, and the law the insurance company to claim right of injurer, Harmer eventually to taking responsibility.