Analysis of practical problems since the implementation of motor vehicle traffic accident liability compulsory insurance

Published: 2010-09-08 10:40:22Source: Authors: Zhang Zhuolin

One, the commercial third party liability insurance and compulsory insurance: risk transfer and guarantee of relief

Compulsory insurance and commercial third party insurance belongs to the liability insurance with. Liability insurance, also known as the third party liability insurance, the insured shall refer to the third negative damage compensation liability, the insurer negative compensation liability insurance. Cross strong insurance in both commercial third party liability insurance development based on the up, in its essence, still belong to the category of liability insurance. Compulsory insurance and commercial third party insurance is associated with two kinds of insurance, and different from each other, the difference between them is the main:

1 arbitrary and compulsory: surface difference

The establishment of insurance relationship, to participate in the insurance parties are voluntary standards, divided into compulsory insurance and voluntary insurance. Compulsory insurance, also known as statutory insurance, is a government or public policy considerations, through some kind of insurance law enforcement. In China, workers industrial injury insurance, compulsory insurance are compulsory insurance. Any insurance, also known as commercial insurance, is refers to the insured and the insurer, on the basis of equality, voluntariness, the principle of consensus, the establishment of insurance legal relationship through the contract system. Commercial third party, such as life insurance of any insurance.

The 2 risk transfer and guarantee of relief: the functional distinction (core value of compulsory insurance)

Cross strong insurance function is to be passed on liability risk insurance and security features, the liability insurance for the victims however, and commercial third party insurance is different, cross strong insurance based on the security of the interests of the victims, to timely, reasonably compensate the victim's loss, "set aside" the responsibility of the accident, provide the guarantee of basic relief to victims.

3 public and commercial property: value orientation

Cross strong insurance belongs to public insurance, "motor vehicle traffic accident liability compulsory insurance clause" (hereinafter referred to as: "cross strong insurance regulations" provisions of the CIRC), the principle of insurance premium and no profit no loss in accordance with the motor vehicle traffic accident liability compulsory insurance business in general. While the commercial third party insurance belongs to the commercial insurance, the insurance company according to the business situation, through the calculation of the insurance industry "actuarial", the insurance premium, and report to the CIRC for approval. Calculated the insurance premium, insurance company is to ensure that a certain proportion of earnings.

The differences between the 4 meanings: third different security subject

"Cross strong insurance regulations" take the exclusion method, the scope of the third rules, namely: the insurance vehicle drivers, passengers, the insured person outside of the victim. Looking at the major insurance companies commercial third party insurance clause of insurance contract, except for the vehicle, the insured, the liability exemption way, will the following persons excluded from the scope of the third, namely: the family members of the insured person's family members and the driver. It is said that this is the insurance companies in order to avoid the insured person or the driver "malicious" creating insurance accident, defrauds insurance money, prevent the moral risk specifically set.

5 Security: security content between different

In terms of insurance major insurance companies, liability exemption is all kinds of, generally include: no driving license, driving license expired, drinking (drunk) driving, smoking or injecting drugs after driving, accident escape, deliberately creating insurance accident, ten, twenty. And "cross strong insurance regulations" provisions, insurance company is exempted from only the following five types: (1) no made driving qualification (including no driver's license or beyond driving category); (2) (drunk drunk driving and drinking or drink different standards); (3) the victim intentionally creating insurance accident; (4) the insured deliberately creating insurance accident; (5) the insured vehicle is the accident period. Here we must note, hit and run, do not belong to the cross strong insurance insurance liability exemption range.

Direct right of claim two, the victim

1 direct claim claim dispute.

In April 1, 2005, before the promulgation and implementation of "law", China has more than a dozen provinces, city, autonomous region through the form of local regulations, requirements on motor vehicle within the jurisdiction of the owner or manager of the "mandatory" Insured commercial third party insurance, the author thinks, this kind of third party insurance from the connotation, function and legal aspect and cross strong insurance, belong to the commercial third party insurance, but local governments for social management role, as the compensation problem solving the victim, "forced" vehicle owners or managers "passed on" self responsibility, indirect benefit of accident victims. Insurance for the insured "forced" of the third is the general principle and approach of the commercial insurance, the "insurance law" although the provisions in article fiftieth "the insurer of liability insurance of the insured to third party damage, in accordance with the law or the agreement in the contract, directly to the the third damages", but in the format clauses of commercial motor vehicle major insurance companies, no one on the insurer directly to the third damages and the insured agreed, at the same time, the article gives third supporting laws to insurance company claim has not been issued. "Insurance law" fiftieth article is actually a "law of overhead".

"Traffic law" after the implementation of the law, seventy-sixth whether to have the accident victim is entitled to underwrite the insurance company direct claim in question, scholars and judicial practice circles have different views, there is negative, a positive said. To think negative say: liability insurance insurance claim is based on contract of insurance and the insured, and of no legal relationship between the insured if the claims for compensation for victims of the third and the insurer, the relativity of creditor's rights and the relativity of contract is based on the principle of the direct claim right of the third victim, No. To think that certainly, seventy-six shall be understood to give the injured third party direct claim right, cross strong insurance for the purpose of timely, reasonably protect the injured third people loss, give the victims of the third party direct claim right, is the core value of the law of the place.

Although the theory and practice circles controversial, but based on the court can not refuse the request, in the trial practice for how to master the third party the right to request, is particularly urgent and important. The author holds the affirmative theory, will have discussed below. At the same time, we should be aware that, legislation and the system of automobile liability insurance in different countries around the world, area has existed for a long time, before the analysis of the above problems, we may briefly to understand it.

The legislation about the compulsory insurance of the 2 world and practice experience

1) protection of victim of changing the concept of motor vehicle third party liability compulsory insurance system originated in Britain, most modern recognition system is developed in japan. In the compulsory automobile liability insurance in the history, there is a protection for victims from harsh to the priority of the process, development of imputation and road traffic accidents this progress principle has a certain degree of similar. Accordingly, victims of the third party direct claim to the insurer the right to change, and development of the theory and legislation. The modern law to protect the victim, and then consider the more early of liability insurance benefit of the insured.

Early liability insurance, liability insurance for the insured to transfer the liability to pay compensation, the basic purpose is to prevent the insured in a difficult position economy because of the large amount of liability. As for the benefit of the third, was not parties to the contract, directly to request the compensation claims the insurer cannot, but can only request the insured shall bear civil liability for compensation. The insured only in actual compensation for victims, to require the insurance liabilities. Before 1930, the court held that liability insurance only exists between the insurer and the insured, nature, no third party interests therefore, third people can not be directly to the insurance claim. This idea is obviously unfair, the insured loss of liquidity and the third party can not pay, if the insurer to the insured fails to pay the damages on the grounds, refused to undertake the insurance liability, the insurer to become beneficiaries, i.e. not pay and insurance premium, and the insured and the injured third people did not derive any benefit from the liability insurance. The choice of legislation make the interests of balance tilted to the underwriters. The implementation of compulsory insurance in 1930 promulgated the "third at the same time, people Jing from the insurance law", although limited to the insured becomes bankrupt or insolvent when it can direct claim, but no direct request right than previously, has progressive significance. The victims' direct claim legislation.

Germany: "specified in the first paragraph of article third automobile compulsory liability insurance law": "third people in...... Range, third people to exercise its damage to the insurance claim for compensation".

Japan: "provisions of article sixteenth of the first automobile liability protection law": "have occurred in third of the provision of damage compensation liability, the victim may have fixed according to the decree, to limit the insured amount, the insurance company for the damage compensation payment request".

Italy: "Italy civil code" 1917th paragraph second: in advance notice to the insured under the condition, the insurer may direct payments due to loss of third compensation, and in the insured's request, bear the direct payment obligations.

Belgium: the "Supplementary Provisions Article twenty-ninth of motor vehicle compulsory liability insurance law" (29b) requirements: in addition to material loss...... All the losses caused by motor vehicle traffic accident due to physical injury or death to the victim or his legal heir caused...... In the motor vehicle owner or holder insurance within the scope of the insurer must compensate, no insurance by the joint guarantee fund....... In 1992 the Supreme Court decision in Belgium, because the pedestrian negligence does not meet the "degree unforgivable mistake", his own personal injury can also get all the compensation insurance companies, even car drivers because of the lack of negligence and does not need to assume the liability of compensation. The choice of legislation for the victim to special protection. Compulsory automobile liability insurance "Belgium" model is the most "completely" liability insurance model, but this model in the implementation process of future, cause insurance costs and traffic accident rate has climbed, finally had to be modified.

EU: EU Member States issued automobile third party liability compulsory insurance, including the members regardless of where the civil liability accident. If the motor vehicle accidents, a green card or certificate of insurance proof of ownership for the compulsory third party liability insurance, the insurance company allow victims to obtain compensation. But all the owners have done must be notified to the insurance company.

Taiwan area of our country: "article fifth of the compulsory automobile liability insurance law" chapter one general provisions: "because of an automobile traffic accident victims of human injury, disability or death, the offender with or without fault, in the insurance is equivalent to the provisions of this law within the scope of the amount, the victim may request compensation from insurance payment", to exercise the power of the second chapter third request section twenty-eighth stipulates that: "the insured automobile accident occurring, the beneficiary in the insurance of the provisions of this law within the scope of the amount, to directly request the insurer to pay insurance gold".

So now the world's 70% countries have implemented the compulsory automobile insurance, and in these countries, the vast majority of and admit the victim to underwriter (insurance company) the direct request right.

Analysis of the legislative situation of our country and the existing 3

Our insurance system is on the basis of relevant institutions worldwide are set up. Whether the law gives the benefit of the third party direct claim right of insurance problems, the author holds the opinion. But the provisions of existing laws and regulations are not clear enough, and gives a brief analysis of the existing and foreseen below with related theory, the trial practice, realistic problem.

1) the main provisions on the direct claim right of victim in China: "traffic law" stipulated in the first paragraph of article seventy-sixth: "motor vehicle traffic accidents caused casualties, property loss, the insurance company in motor vehicle compulsory third party liability insurance liability limit range to compensation......." Motor vehicle liability insurance regulations ";" twenty-first ": the insured motor vehicle road traffic accidents caused by the vehicle, is the victim casualties, property loss than the insured, the insurance companies according to law in the compulsory motor vehicle traffic accident liability limits the scope of compensation......." , twenty-eighth: "the insured motor vehicle traffic accidents, by the insured to the insurance company for compensation insurance......." Article thirty-first: ", the insurance company may apply to the insurer to pay the insurance money, can also be compensation insurance to the victim.......".

2) "traffic law" seventy-six article: theoretical understanding of many scholars think it literally don't get injured third people enjoy the rules give the insurance claim, but the author thinks that this kind of understanding is not. The provisions of article seventy-six accident victims to third personal and property loss by the insurance company "compensation", who is the "compensation" is not specified, but from a legal perspective, a form of "compensation" to bear civil liability, the general applicable mainly include: first, the common infringement behavior for example, the wounded, Party A Party B, Party B to spend 5000 yuan for medical expenses, a from the infringement, tort legal relationship between the formation and the B, Party A Party B may be required "compensation" the medical expenses; second, breach of contract and tort, for example, a contract for the sale of goods is set between Party A and Party B, according to the contract Party A Party B to provide 5000 yuan worth of goods, accordingly, Party B may request the party to pay the price for the goods is 5000 yuan, which cannot be expressed as Party B party "compensation" price of 5000 yuan; if Party B is not in accordance with the contract to deliver the goods within a specified period of Party A, a can not lead to deliver the goods caused by the loss of C circumstances, Party B's breach violated the rights and interests of Party A, according to the principles and provisions of the contract law, the party may "Compensation" for the losses to Party B. Compulsory insurance is a compulsory insurance contract between the insured and the insurer, the insured and the insurer. There is a contract between rights and responsibilities, the formation of the debt of the contract. If the specified in section seventy-six of the insurance company "compensation" understanding object for the insured, the insured to the benefit of the third words, you should not use "compensation" a legal term, but should use the "payment" or "bear" and other statements. Therefore, for the seventy-six section, the author thinks, it is actually the third party direct claim gives the right to insurance company.

3) "problems of cross strong insurance regulations" on the injured third party direct claim right subject

"Cross strong insurance regulations" is the National People's Congress Standing Committee on the "traffic law", through delegated legislation, the State Council authorized the development of. But the regulation made provisions for victims in the direct request right problem, but is not clear enough, mainly in the following aspects:

First, I understand, the ordinance of twenty-eighth and thirty-first in practice will lead to the following problems:

First of all, if the insured died in accidents or loss of meaning expression ability, then, in accordance with the provisions of rule twenty-eighth, you can estimate the request rights of victims will be unable to "start" insurance money is paid, resulting in a liability insurance relief, and the victim can not use.

Secondly, the insured negative or deliberately evade liability. Faced with the huge costs of compensation (especially the accident victim death or severe disability), in practice, we often meet with the infringer (the insured) negative or deliberately evade liability of third party, except in the face of the moral risks, have to face to the implementation of risk. If you don't give the victims of the third party direct claim, the same can lead to the problem.

Once again, the transfer problem of consumption. There is two reports in network news: a traffic incident, the victims died in the accident, the infringer (the insured) in no case of compensation, in accordance with the contract of insurance from the insurance company for $160000 in compensation, for gambling, the full light; another is, tort in a huge insurance, no compensation for accident victims, but deliberately escape compensation responsible, then cannot be contacted, the victim compensation request despite most support the court, but can not find the infringer's property in the implementation process, and ultimately can not get compensation.

Finally, insurance is insurance the creditor performs allocation problem. If in accordance with the "cross strong insurance regulations" twenty-eighth implementation, the insurer to pay the insured (tort) insurance, are likely to be insured "informed" creditors as the insured claims to be preserved even enforced.

Second, "cross strong insurance regulations" for insurance are not clear qualitative problem. Rule twenty-eighth stipulation "by the insured to the insurance company for compensation insurance", "insurance companies should be in receipt of the application for compensation......" The provisions of article thirty-first, "the insurance company can be paid indemnities to the insured, or directly to the victim compensation insurance", these two provisions, no matter who is the insurance company pays insurance gold objects, using "compensation" a legal term. The author thinks, if that the right to request the third party is not, the insured (insurance company) in the absence of the implementation of the infringement or breach of contract case, where the insured "compensation" insurance, the insured where the "compensation" to apply to the insurer.

Summary: the core value of compulsory automobile liability insurance is to "use" the responsibility of the accident, based on "people-oriented", protect the accident injured third person view, to provide timely, the basic financial guarantee for the traffic accident victims. The face of frequent traffic accident and liability insurance has become the main means of the victim compensation situation, many legislatures and practice circle have to find countermeasures, trying to make the relationship between third people and the insurer from the insurer and the insured, insurer and is between third people. One of the main ways is to give the motor vehicle third party liability compulsory insurance of the third party to claim, when the place within the insurance accident, can claim for compensation insurance insurance. Give the victims of the third party direct claim, is hundred years automobile liability insurance experience, is also the lawmakers for real social problems and response.

The litigation status of the three, the insurance company

Litigation is not injured third people filled the most economic loss, the most efficient means, is not the only or even the most effective means, where many traffic accidents can be resolved through consultation way to reach a compensation agreement, but because the accident victim deliberately escape liability, lack of capacity of compensation and litigation threshold further reduction etc. reason, action is becoming one of the main means of the injured third people. The third victim in the prosecution of the infringer. At the same time, in order to timely, sufficiently to obtain compensation, often listed insurance compulsory insurance and third party insurance insurance company as the parties to participate in the lawsuit, the insurance company in the lawsuit process is able to participate in the proceedings as a party? What is in the process of lawsuit main body status? Below I will start from the actual case, makes a brief comment on this issue.

Case: in January 24, 2007, B A driving motor vehicles and pedestrians crossing the road leading to the pedestrian collision, B died of traffic accidents. The main responsibility of the accident A negative, B negative secondary liability accident. A car at the time of the accident has been in C insurance company insurance compulsory insurance, commercial insurance company insured in D. As the successor of the A and B failed to reach agreement on accident compensation issues, the heir of B compensation for traffic accident damage lawsuit to the court.

Problem a: B's heirs can request that C damages in the insurance limits?

Through the above analysis, the author thinks, the law of our country is endowed with third party direct claim to insurance company, therefore, the answer to this question is in the affirmative.

Question two: B's heirs can in the case, asked C to compensation for the loss in the insurance limits? If you can, what is C's main body status? Is the accused or third people?

For B's heirs can in the case of C company liability problems, academic circles and judicial practice circles there are two opposite opinions. The first view, should be listed company C as a co defendant, the core of the problem lies in whether the heir of B has a direct claim on the insurance company, in recognition of the right to exist, the heir of B certainly requires C to be compensation for the loss in the insurance limit. Second kinds of opinions, a case, a case is applicable, handling a legal relationship, but in the above case, formed between A and B is the civil legal relationship, between A and C is the insurance contract relationship, even admitting that injured third people on the insurance company direct petition right, but the the claim is based on the insurance contract exists, the right is the nature of the contract, therefore, can not be heard in the tort action, C company also cannot be used as the defendant in litigation.

The author thinks, to solve the above problems, the properties of the direct request right positioning. The nature of the direct right of claim, there are two kinds of theories:

1 legal liabilities assumed jointly said

Think the compulsory automobile liability insurance, the insurance liability insurance to be the negative common responsibility if debt insurance in accordance with the law, the share of debt in accordance with the law, it is the common responsibility, it is the insurer for the tort damage on the negative compensatory obligations.

Construction of 2 on the law of insurance that the direct request right is automobile liability insurance contract by the legal interests of the third person of the right to live, the victim is in "common creditor exemption right of claim" position, the insurer is the insured from its obligations, only this, request insurance payment direction has been transformed into the victim to.

All of the cross strong insurance mostly through the form of legislation on the victim, the rights and obligations between the insurer and the insured may be specified (including China), between the insured and the insurer's contract relation is the "dilution" law, change the relationship between the above three as the rights and obligations statutory. For the victim, the direct request right is based on the law and the presence of the original rights, not attached to the insurer and the insurance contract is the contract. Regarding the insurer, the negative to the victims of the third party direct compensation obligation, is negative for the tort compensation obligation; on the insured, insurance liability insurance liability assumed that without damage, the insurer pays insurance gold is the third party liability for the damage the mean. To sum up, the author believes that, the dual nature of the third party victim direct request right of request right of claim damages and insurance rights, property insurance claim to be "on", the nature of right of claim damages are clear and "strengthen". The German Federal Supreme Court that: "the right of direct claim responsibility for a legal claim, is independent of the insurance relationship born of contractual rights, but are subject to underwriting risk and insurance amount limit". Germany "as prescribed in the first paragraph of Compulsory Automobile Liability Insurance Law" third article: "third people ...... Range, third people to exercise its damage to the insurance claim for compensation".

To sum up, the author believes that, for these cases, the heir of B listed C company as a defendant, request C company in the insurance limits the scope of compensation is not a problem. The main reasons are as follows:

First of all, the heir of B direct requests to the A and C company has the nature of right of claim for damage compensation, C company as a co defendant in the case, does not violate a case of a case by the principle, can also cause for traffic accident damage compensation lawsuit.

Secondly, the after the accident, the victim, the infringer (the insured) relationship of rights and obligations between the and the insurer, especially the relationship of rights and obligations of the victim and the insurer, has to be clearly defined by law, shall be regarded as the rights and obligations of a "whole". The heir of B C company as a defendant is not in breach of a case handling a legal relationship principle in the case of column.

Finally, "traffic law" article seventy-sixth above should be dealt with as core of the case law, the provision: "motor vehicle traffic accident caused personal injury, property loss, the insurance companies in motor vehicle compulsory third party liability insurance liability limits the scope of compensation. More than some of the limits of liability, shall bear the liability for compensation in accordance with the following methods: (a) the traffic accidents between motor vehicles, the faulty party shall bear the responsibility for compensation; if both parties are at fault, in accordance with their respective proportion of fault responsibility. (two) the traffic accidents between motor vehicles and non motor vehicles, pedestrians, a motor vehicle shall bear the liability; however, there is evidence of non motor vehicles, pedestrians in violation of road traffic safety laws and regulations, motor vehicle drivers have to take the necessary measures, reduce motor vehicle liability side.......". The heir of B listed C company as a defendant, by B company in the insurance within the limits of liability, the remaining losses according to the proportion should assume responsibility, in accordance with legal logic of the article.

Of course, the heir of B is a kind of civil rights for the direct request rights of company C, if B's successor is not listed company C as the co defendant in the litigation, in this case, I think, the court may exercise the right of "show". But if the heir of B insist not to prosecute the case of C company, because C company on the trial of the case has a direct stake (mainly as follows: for the victim's loss of insurance amount, relates to the victim or the insured to the C request, therefore, C company and the trial results interested), the court should actively additional or in accordance with the infringer or C's request, C company as the case of "no independent claim" third people to participate in the proceedings. However, in the case of the referee, shall indicate the heir of B loss in the insurance amount by C company to undertake.

Question three: B's heirs can in the case, asked D to compensation for the loss in the insurance limits? What is D's lawsuit main body status?

The victims can directly request the underwriting business of third party insurance the insurance company pays insurance gold, more unified theory circles and judicial practice circles. Because of the direct request rights law has no provisions of insurance, insurance contract is not agreed or the victim to insurance underwriting business risk of the third insurance companies, therefore, in the suit, B heir does not request compensation for the loss of D company in the insurance limit. But due to the insurance company to the insured pays insurance gold based on proportional liability accident compensation insurance size and amount, so as to guarantee the D company's legitimate rights, the court should take the initiative to or according to the victim, the insured, insurance company's application, additional D companies to participate in the proceedings as "without independent claim third".

In the example above, C company as a joint defendant, listed company D as the third people, not only has its legal basis, but also the existence of its rationality, mainly as follows:

First of all, C company as a joint defendant, according to B's heirs sue, ordered the C company compensation in the insurance limits, can make the victim's loss has been rapidly, the basic compensation.

Second, increase the possibility of mediation closed cases. The author in the trial practice, has been successfully mediate many similar cases.

Finally, the parties' litigation involving claims reduce saving cost. The accident victim compensation litigation activities belong to the consumption of social movements, from the value of social life, each link claim process needs to cost, the "cost" includes not only the parties to pay the cost of litigation, hire a lawyer agency costs, including time, energy inputs. Column cover the insurance company as a defendant, any insurance company compensation insurance to the victims, to avoid the risks and costs of the insurer "transmitting" insurance investment. Column third underwriting commercial insurance company as third people, in the insured according to insurance contract claim to the insurance benefits, or the victim in the insured "fails to perform the obligation of compensation" to the insurer of insurance contract lawsuit filed on behalf of the process, can avoid the insured or the court responsible for the accident and accident the loss of the two review, effectively save the cost, reduce the parties v.tired.

Summary: the realization of the right, not the lack of appropriate procedures. Protection from the right point of view, since the sixty or seventy's of last century, the world's major countries under the rule of law in the process has been developed, also carried out a series of security to judicial reform, justice, "the interests of the weak and develop a number of laws and regulations is the most prominent feature of" welfare state, the formation in order to protect the facilitation, inexpensive, rapid target relief to the judicial lawsuit system reform which in the global scope. In the formulation and implementation of the system, we should as far as possible on how to guarantee the right of the third person accident victims and provide the "convenience" of points.

Compulsory insurance system four, China on the existence of the insurer of the exemption of confusion: the offenders punishment and execution risk selection

Chinese "cross strong insurance regulations" on the insurance exemption provisions include the following five kinds of circumstances:

First, the accident was due to intentionally cause the victim: for example Dutch act act;

Second, did not obtain a driver's driving qualifications: including, without a driver's license, driving a vehicle with the quasi driving type inconsistent, other non effective driving conditions;

Third, drunk driving: the difference here to distinguish between drinking and driving, drunk driving and drunk driving, drunk, drunk on the regulations of national standard, no unified. Application of the article should pay attention to drinking and drunk driving is not part of the exemption of insurance company;

Fourth, motor vehicle traffic accident robbed stolen during the;

Fifth, the insured deliberately causes a traffic accident;

Above the first case "cross strong insurance regulations" provisions of the insurance company shall not compensate (total exemption); second to fifth kinds of circumstances stipulated by the insurance companies only in medical expense insurance limits pays rescue expenses, and have the right to recover the injurer (conditional all exemption).

Problems:

More than 1 of the first case the insurance company all exemption is the international regulations, there is no problem, but there is also a legal "blind spot", also is the victim and the insured intentionally collude when accidents, the insurance company is applicable to all the exemption rules, or apply conditional all free liability provisions? This problem, requiring lawmakers to further clarify the.

2 second to fifth kinds of circumstances specified conditions attached with all the exemption of insurance.

Driving second to fifth cases belonging to the driver "malicious", conditional regulations insurance people all the purpose of exemption, think: first, by allowing the compensation liability exemption of the insurer, let "malicious" driving people to take on more economic compensation, strengthen the penalties for the illegal, according to the economic constraints, improve the road passing through the law, maintain the order of traffic safety; secondly, to avoid the insured intentionally seek insurance gold that traffic accident, endanger personal and property safety. The author thinks, the rationality of the intention of the legislation is justified, but the above regulations will actually to "malicious" driving punishment on the indirect to the victim, the author through an actual case analysis.

Real case: in January 24, 2007, A drunk driving and B driving motorcycle collision, guide B injured in traffic accidents. The main responsibility of the accident A negative, B negative secondary liability accident. A car at the time of the accident has been in C insurance company insurance compulsory insurance and third party insurance.

The case after the trial, the court ordered B A to pay compensation totaling 200000 yuan, the insurance company does not assume liability compulsory insurance. After the entry into force of the A cases, unable to compensate for the loss, B then apply to the court for compulsory execution, but after verification A in addition to the accident vehicle, and no other property available for enforcement. Finally, the B can only get involved in the accident vehicle performs a money 8000 multivariate. The author thinks, the regulations in the "malicious" driving economic punishment on human to law-abiding third people, is not conducive to reflect the principle of fairness, but also caused negative social effects. Trial practice, such cases occur frequently,

In many countries and regions including Taiwan of China, the driver drunk, drug or no driving of driving behavior belongs to the insurer disclaimer reason. But most of the countries and regions, exemptions can't fight insurance more injured third people, only through the design of the system involved, keep driving the economic punishment for "malicious".

Japan: the Japanese Commercial Law Article Six four one stipulates that, due to the applicant (the insured) or the insured's malicious or gross negligence of the traffic accident occurred, the insurer is not liable to fill the responsibility, however, exemption from the, can not directly refuse to claim the compensation of the victims, but after the payment of damages then, in accordance with the provisions of the fourth paragraph of self compensation act sixteenth, request compensation from the government. While the government is based on the self compensation provisions of law seventy-sixth of second, on the insured claims.

Taiwan area: "Compulsory Automobile Liability Insurance Law" twenty-seventh stipulation: the insured vehicle traffic accidents, the offender commits any of the following circumstances, the insurer is according to provisions of this law, the payment of the insurance benefits, but in a payment from the range, the offender: A, drunk or drugged, psychedelic drugs while the driver; two, engaged in criminal behavior or evade arrest; three, Dutch act or intentional behavior; four, in violation of road traffic management regulations of the provisions of article twenty-first while the driver; five, not driving the insured and are allowed.

Summary: the insured person (the driver) intentionally or by other malicious acts insurance accident, from general insurance, is the moral risk, the insurer shall not be liable for. However, the third victim of security, not the victim because the insured intentionally or other important reasons, they lose their insurance indemnity guarantee, at the same time, the insurer in compensation, and then to the insured claims, by the insured to this kind of case negative final responsibility, there is no unfair. Insurance experts said, such a system design, increase will lead to the liability of the insurer. But the author thinks, care and the law on "human" life and health value, insurance companies, this burden is not particularly heavy, in addition to the insurance company's human, experience, resources, undertake claims trouble does not matter, it can be obtained by adjusting the insurance premium to no profit and no loss of balance. The insurance company to earn high profits at the same time, we should take to alleviate social contradictions, safeguard the victim's damage to fill the social responsibility and mission. If we can fight, will make the purpose of law liability insurance to protect the interests of victims in vain.

Five, some problems existing in the practical calculation of insurance compensation limit

(Note: due to traffic accident social relief in China "traffic law" stipulates that the seventy-fifth basic has not been established, therefore, the following discussion, were not on the fund's disbursements obligations into account)

1 vehicles do not have a strong risk of the insured to pay compensation calculation

The vehicle without insurance compulsory insurance, tort (the insured) should be what kind of liability for compensation? "Traffic law" and "cross strong insurance regulations" are not clearly defined, the problem that our country compulsory automobile liability insurance system in one of the "loopholes". This situation, in the implementation of automobile liability insurance system of countries and regions, the majority of prescribed by the special rescue fund (such as: Germany, South Korea, and China's Taiwan region) or government special parts (such as: Japan) in insurance scope is in advance, and has the right to recover the infringer. The above countries and regions actually provisions, the tortfeasor in insurance scope is in part responsible for the accident, the infringer shall assume all the liabilities for compensation. But in order to avoid the victim is moral and executing risk, by the special fund or government departments to advance. The author thinks, countries and regions over the system "arrangement", can effectively ensure the victims to obtain timely, basic safeguard, also reflected on the liability for breach of the obligation to insure economic punishment. January 18, 2006 promulgated the "Guangdong Province, the road safety regulations" provisions of the fourth paragraph: forty-eighth did not participate in the compulsory motor vehicle third party liability insurance, compensation by the vehicle in the car should be the minimum insurance liability limit,.......

Claims more victims of the traffic accident insurance plan 2

The insured vehicle traffic accidents caused 2 people suffered casualties or property losses, the insurer is liable for compensation in each accident insurance limits, or each of the victims in the insurance within the limits of liability? For this, "cross strong insurance regulations" does not explicitly, "cross strong insurance regulations" twenty-third article: motor vehicle traffic accident liability compulsory insurance liability limit by the CIRC jointly with the public security department, health department under the State Council and the competent department of agriculture regulations, but the regulations since July 1, 2006 promulgated, the Department has not yet formulated the corresponding liability limit. Only by Chinese insurance association produced by the "motor vehicle traffic accident liability compulsory insurance clause" (hereinafter referred to as: "cross strong insurance clause") which makes provision. As everyone knows, China Insurance Association and belongs to industry associations, and not to the State Council departments or institutions directly under the terms, universal questions about the validity and rationality of the theory circle and judicial practice circle. "Cross strong insurance clause" provisions, the insurer's liability is limited to "time" the accident liability limit of indemnity of 122000 yuan (death and disability compensation limit for 110000 yuan, the medical fee compensation limit for 10000 yuan, property damage compensation limit for 2000 yuan). The author thinks, the above provisions according to "time" the accident insurance in insurance within the limits of liability to bear against compulsory insurance system and China's legislative spirit, and is not consistent with the international prevailing rules, should be revised, the main reasons are as follows:

1) traffic regulations on International: compulsory insurance system international implementation of automobile liability of countries and regions, the insurer according to the number of accident victims, the insurance limits, shall bear the liability for compensation for each victim, is the traffic regulations. Including these countries and regions: South Korea, Japan, Pennsylvania, USA, Massachusetts, Chinese Taiwan area etc..

2) our country to pay high insurance protection was not very high, if heavy, serious traffic accident casualties, each victim get insurance gold treatment amount will be decreasing geometrically, the spirit of the legislation which provides the basic guarantee obviously and compulsory insurance system for the traffic accident victims is contrary to the.

3) the scholar thinks, the above provisions of the "arrangement" is formulated on the basis of considering the situation of our country and the affordability of consumers on the. If the insurer shall bear the liability for compensation for each victim in the insurance limits, this "burden" will indirectly increase the insurance fee in the form of transfer to the whole of the insured, the insured's burden heavier. The author thinks, this kind of understanding is not proper, the reasons are as follows: first, what is the Chinese condition? Chinese situation is the rapid economic growth, people's consumption ability gradually improve; China national death toll pedestrians fail to enjoy the convenience brought by motor vehicles and non motor vehicle drivers accounted for the overall traffic accident death toll of 43%, the driver's death rate was 13.4%, while in a foreign country, the traffic accident death the main driver, 63.50% in France, Italy, Germany 61.40%, 55.50% American is 52.40%; secondly, on the basis of socialist philosophy theory, cognitive problems and develop solutions, first of all to the main contradiction and problems. The traffic accident, the main contradiction of its existence is to be filled with the loss of the insurer and the insured promptly, reasonable (tort) the contradiction between the liability and compensation capacity, between the insurer and the insured on the contradictions between the insurance cost is only the secondary contradiction of the problem. We in the development of compulsory insurance system, we should focus on the main contradiction to solve the problem, but should not "catch small amplification", the entanglement in the increase of dozens of yuan, hundreds of yuan of insurance cost; finally, the traffic accident is negligence form tort, compulsory insurance system in addition to fill the victim's damage effect, also to ensure the vehicle owner as soon as possible out of the economic plight, restore the normal order of life and production and management role, embodies the principles of efficiency and full compensation. If the insured is confined to "time" the traffic accident liability in the insurance limits, for heavy, heavy traffic matter, will greatly increase the economic burden of the insured.

The compensation deal 3 number of car accident

A traffic accident involving two cars in the car if the vehicle condition, the insurer should bear the insurance payment obligations? China's "road traffic law" and "cross strong insurance regulations" are not to be clear, the practice of trial, understanding and processing method all over the court did not unified, worthy of further discussion. More than two vehicle accident, according to each vehicle insurance situation, can be divided into three types: first, the vehicle has the stronger risk; second, part of the vehicle insurance compulsory insurance; third, all vehicles are not strong risk of the insured to pay. Below the author to the actual cases, the above three kinds of circumstances are analyzed.

Case: in September 15, 2006, A in bad vision rainy day driving a B car, to an intersection, because the brake less collision by C driving illegal right turn D car, after the collision, the pedestrian E B car collision down side of the road, causing E seriously injured and two different damaged car traffic accident. B, D car in a and B, the insurance company insurance compulsory insurance. Bear the main responsibility for the accident A, C negative secondary responsibility. The accident loss of E include medical fees totalling 120000 yuan.

The first case: B, D have insurance compulsory insurance.

The E can also request payment of the insurance money to the company a and B, the insurance, then a and B, the insurance company to assume the insurance payment obligations? Here China's laws and regulations are not clearly defined, there are mainly two kinds of theories:

First, an insurance guarantee

This said that the number of vehicles, the common accident, digital insured the burden of liability to the victim, whether the damage to some, only by the compulsory liability insurance in a insurance amount insurance, not because of the offender (the insured) most people are different, therefore, the insurer of the victim as an insurance guarantee. This kind of theory with China's Taiwan region, "Compulsory Automobile Liability Insurance Law" thirty-fourth stipulates: "the automobile traffic accident by a number of cars symbiosis or involves several cars, according to the following provisions; an automobile accident, all or part of the insured vehicle, the victim or the beneficiary in the insurance provisions of this law, the amount of within the scope of the insured, the request and the payment of the insurance benefits.......".

Second, the number of copies insurance guarantee

According to this theory, the liability insurance is the insured liability burden may seek security, so when the accident occurred, if the insured has the all digital responsibility to victims, because the insured person may obtain a copy of the amount of insurance compensation liability waiver. The victim, in "the insured amount multiplied by the joint tort is the scope of insurance car number", to pay the loss of accident each insurer. In this way, the victim can not obtain unjust enrichment, but also try to obtain guarantee. The insured shall receive the relief liability amount should remain, so favorable to the insured person. Germany, Japan legislation, using the theory of.

(1) the German legislation: the victim can get loss compensation, is in the range of damage, the insured in accordance with its responsibility compensation, therefore, the victim can guarantee is not limited to an insurance gold, but in the loss range to obtain the safeguard.

(2) the Japanese legislation: the provisions of compensation for security law of twelfth Japanese auto damage: "liability insurance contract, shall each vehicle individual concluded." Each vehicle has a copy of the insurance amount of security, therefore, treatment of joint illegal act complex Vehicle Association, is the loss of more than one insurance gold, "scope of contract number" insurance gold is multiplied by the joint illegal act of the vehicle to pay the amount of loss.

The above two kinds of theory or a system, each has its reason and legal basis, but the return of our insurance system, in the end the one? The problem is Different people, different views., I prefer a "insurance", in addition to the above the first the doctrine of justification, more to the following considerations: first, compulsory insurance system in China aims to certain limits for the victims of "basic" relief; secondly, whether compulsory insurance, or business third party insurance, belong to the liability insurance. Liability insurance system is to acknowledge the need for car use, must base its importance to the economic development of the developed. Liability insurance system can effectively resolve conflicts between the infringer and victim, the victim's loss to be filled, the compensation liability of people not to "overweight", but also criticized the liability insurance has its system "". Mainly displays in the tort liability system plays the role of "negative". The tort system is to make the infringer implementation of tort bear corresponding civil liability (here mainly in the civil compensation responsibility), through economic sanctions, the infringers to improve risk behavior prevention awareness, so as to improve the similar behavior to occur again. Liability insurance system, which shall bear civil liability offenders have liability insurance share, violations of economic sanctions, passed a law, the dangerous offenders failed to effectively improve awareness. Regression of traffic accidents, the number of copies insurance security said, in addition to compulsory liability insurance, civil compensation liability is easier to full exemption, the social effect is one can imagine.

In recognition of an insurance protection under the premise of the above case, a and B, the insurance company to compensate the victim when E insurance, will appear the following problems, a and B, insurance in the insurance limit (limit; compensation for loss compensation project assumptions E exceeded the same below) range, whether to undertake insurance gold payment obligations according to respective vehicle accident liability insurance? Or part of the responsibility proportional fairness?

Assume that responsibility in accordance with the proportion, then a insurance company needs to pay 60000 yuan (E × 70% main liability ratio) = 42000 yuan, company B to E claims 60000 yuan * 30% = 18000 yuan.

Suppose some percentage of the responsibility, a and B, respectively, to the E claims 60000 yuan * 50% = 30000 yuan.

This is often encountered in the practice of trial, I think we should adopt half meter compensate calculation method, the main reasons are as follows: "hold" accident liability, the liability insurance within the limits of liability, insurance company for the loss of the victim, it is a basic principle of automobile liability insurance system, multi car accident the case, in the insurance within the limits of liability if return system, in proportion to the accident liability insurance payment obligations to share, a violation of the system principle, put the cart before the horse.

On the basis of liability sharing: the special case, if all the A negative accident responsibility, B will not be held responsible for the accident, then in accordance with the provisions of our existing cross strong insurance, company B in an insurance (60000 yuan) range to bear 20% of the responsibility for payment, will bear the death and disability compensation for 10000 yuan + medical expenses allowance 1600 yuan + property restrictions 400 yuan = 12000 yuan, a company 80% of the compensation liability, death and disability compensation for medical expenses 40000 yuan + + property restrictions limit of 6400 yuan 1600 yuan = 48000 yuan.

Second cases: B insurance compulsory insurance, D does not have a strong risk of the insured to pay

The above situation, E can to a company at the request of insurance (60000 yuan) within the scope of compensation for the losses, according to an insurance guarantee processing, E the remainder of the accident loss can only request B, E bear in accordance with the proportion of accident, namely B, D to E respectively compensation 60000 yuan (total loss of 120000 yuan - limit 60000 yuan) * 70% = 42000 yuan, 60000 yuan * 30% = 18000 yuan.

This will produce a problem, D vehicles driving without insurance compulsory insurance, the need to take responsibility? Assume what responsibility? In accordance with the "provisions of traffic law" ninety-eighth article: administrative department of the public security organ shall detain the vehicle, until the required strong risk of the insured to pay the insurance premium, and impose a fine of two times the. For the above case, D can be detained vehicle and insurance costs two times the fine, the punishment of administrative punishment.

Third cases: B, D are not insured to pay strong risk

For this kind of situation, according to an insurance guarantee processing, by B, D bear direct responsibility for E in the limit range of 60000 yuan, the remaining part according to the percentage of the responsibility. For 60000 yuan compensation limit, according to the above discussion, by B, D equally, that each person shall bear the liability for compensation, 30000 yuan and, the liability shall be joint and several liability.

4 the infringer (the insured) compensation problem

Insurance on the basis of compulsory liability insurance the insurance payment obligations, is due to the insured in the insurance premiums for the price will be the responsibility of risk on to the insurer, and the insured payment from the self and the insurer to pay compensation and calculation, in order to avoid the victim obtain double benefits or unjust enrichment. The insured prior to the victim compensation for losses, can be divided into three types: first, the insured to pay compensation to the victim not; second, the insured compensation for all losses, the third, by accident compensation part of the insurer.

In the first case, the scope of insurance limits the victim can request the insurer in compensation for the loss, if the loss exceeds the limit, to the insured requests in accordance with the proportion of accident liability undertake.

For the second case, because of all the loss of the victims have been compensated, the insured may, according to the insurance contract, the claim to the insured.

Third kinds of circumstances, more common in the trial practice, mainly two types: first, the victim of the injury situation, the insured to advance medical expenses; second, the victim died due to accident case, the insured to advance the funeral expenses, the relatives of the deceased to deal with the accident of traffic or accommodation expenses. This kind of situation, how to undertake the insurance payment obligations in the scope of compulsory insurance, compulsory insurance regulations of law of our country has not stipulated. Here, we may wish to the relevant provisions of international of the certain understanding.

Germany: Germany compulsory automobile liability insurance law article third paragraph second: "third people in the first request in accordance with the insured amount of compensation scope, the insurer and the insured liability." In the ninth paragraph, with the act of third: "the second paragraph of the joint and several liability of human, the scope of the insured amount, the insurer shall bear full responsibility; the scope of the insured amount, shall be paid by the insured person".

Japan: Japanese auto compensation insurance law fifteenth: "the insured for the victim to compensation, the amount of compensation scope, may request the payment of the insurance benefits to the insured," the sixteenth provisions of the second paragraph: "the insured has on victims for damage compensation, and insurance and has the insured for the payment of the insurance benefits, the insurer to pay range, from the obligation to pay for the victims.".

China's Taiwan region: Compulsory Automobile Liability Insurance Law twenty-ninth stipulation: "the insured vehicle automobile traffic accident, the offender or the insured has as a part of compensation, the insurer of insurance amount only to the provisions of this law, the compensation amount is deducted, obligated to pay. But the beneficiary and the offender or the insured shall deduct, from its agreement. The offender or the insured amount of insurance compensation, scope of the insured amount to the provisions of this law within the pad.......".

The compulsory automobile liability insurance legislation, although in the details are different, but all follow a principle, part of the loss is to compensate the insured, insurer in liability insurance within the scope of the victim "exemption", its purpose is to avoid the victim "repeated compensation double points". Whether it is obtained from the insured to obtain the compensation or the insurer of insurance, the premise is equivalent to the insurance protection in the protection of the victim, the victim beyond the limit part loss, regression of civil tort liability compensation system.

The author thinks, these institutional arrangements in addition to avoid the victim to obtain the unjust enrichment, also played the role in practice: first, on the basis of the above provisions, the insured in the first compensation for the loss of the victim of an accident, it is still possible to request payment of the insurance benefits to the insured to compensation; second, to avoid victims of unjust enrichment, leading to the insured against another lawsuit occurrence period rate, reduce the accident parties v.tired and claim the cost. But the insurer to the insured to pay the compensation range from to the victim compensation obligation, in practice there are some problems, the following through the analysis of a case.

Case: A vehicle driving and B driving collision, cause B injury and constitutes the four level disability accident, the main responsibilities of A negative accident, B negative secondary liability accident. B for the treatment of spent 30000 yuan for medical expenses, disability compensation for losses totaling 120000 yuan. A after the accident, to the B first pay 30000 yuan in compensation. A driving the vehicle in a company insurance compulsory insurance. Since then, for the two sides failed to reach a compensation agreement, B to the court request to resolve.

According to the above principles, because B would pay compensation 30000 yuan to B, a firm is likely to only be on the residual insurance limit of 30000 yuan (30000 yuan insurance 60000 yuan a payment in advance of its payment obligation) to B. The accident loss B the remaining 60000 yuan (30000 yuan to 30000 yuan, a total loss of 120000 yuan a paid payment), in accordance with the proportion of A should bear the responsibility, 70%, or 60000 yuan * 70% = 42000 yuan. A B is required to compensate for 42000 yuan, A in the absence of compensation capability, 30000 yuan compensation can only claim the advance to a company after gold, then to the B bear the responsibility for compensation. This method does not exist in theory, but in practice process, the presence of A necessary claims to a company, then the insurance money "to" to B. The increase "claim" + "to" link, delayed the victims deserve compensation time, increase the moral hazard. We might as well use processing method in Taiwan area, between the victim and the insured shall allow the insured to pay the compensation is not in the insurer of insurance amount deducted. Thus, for the above case, B can to a company in the insurance amount of compensation for the loss of 60000 yuan range, B the remainder of the accident loss of 60000 yuan, by A according to the proportion of accident liability for 42000 yuan, because A has paid the compensation funds 30000 yuan, then, A only need to pay B $12000. This approach is obviously good. Regarding the insurer, the insurance payment amount did not change; for the insured, reduction of their claim to the insurance people need complicated procedures and time to wait; for the victim, the deserved compensation get protection, avoid to be risk and cost insurance claim.

Conclusion: "conform to the liability insurance to protect the interests of the insured's liability insurance is increasingly weakening trend, the protection of the insured's objective, the result of the development of the liability insurance is to protect the victims of third people and the public." In our country, "road traffic safety law" the relevant provisions, the development direction and the international trend in liability insurance and the modern typed lawsuits are consistent. Compulsory automobile liability insurance is not only a liability insurance, it is a policy system, security policy for the victims of traffic accidents, countries from the legislative, judicial, insurance three aspects countermeasures. The responsibility can not give the benefit of the third party direct claim right of insurance, the insurance company against the third party, the accident every victim obtained a copy of insurance security, road accident social relief fund to the accident vehicle or no strong risk of the insured to pay the hurt Third People's relief, clear the parties lawsuit main body status and so on, is the compulsory automobile liability insurance system to avoid the protection system for the protection of victims, the loopholes in the policy function, which should be design.