A, problem

With the development of our market economy and road construction, more and more of the tractor trailer engaged in road transport. Because of the characteristics of the vehicle body length, weight, serious, serious traffic accidents in recent years because of the vehicle caused by repeatedly reported in the newspaper, the resulting loss is usually huge. But the damage should be relief, but the tractor and the trailer can be purchased separately, registration, belong to different kinds of civil subject, for the tractor trailer accident causing damages, tractor and trailer owners shall bear the liability for compensation? Such as tractor and trailer has an uninsured third party insurance another of the vehicle, the insurer should assume insurance responsibility? If the tractor and trailer are insured third party insurance, two car insurance people are dealing with injured third people assume insurance responsibility? In this regard, theoretical study of Chen visible, judicial practice is different, it is necessary to discuss it.

Two, understanding the differences and the reasons

(a) for the determination of the owner of the vehicle or trailer towing vehicle owners to assume liability to pay compensation, there are three kinds of views

By the tractor owner responsibility.

Reason: the trailer is no energy driven transport, itself should not be evaluated as "vehicle", the traction situations, the tractor should be regarded as one of the trailer, the owner should not bear the responsibility. Based on the "risk control" theory and "operation control and operation interests" theory, the tractor owners should bear the responsibility for compensation.

The collision site should be considered when the accident occurred is decided by the tractor trailer owners or owners of the responsibility.

Reason: the tractor and trailer with different plates, different vehicle. So as the collision site tractors, Tractor Owner shall bear the liability for compensation, such as the collision site is the trailer, the trailer owners shall bear the liability for compensation.

Tractor trailer owners and owners should bear the responsibility.

Reason: the tractor and trailer are motor vehicle. The tractor owner should bear responsibility for the. The trailer owner can choose the tractor and its driver, also have an effect on the increased risk, and trailer car owners can make internal from the tractor owners based on contractual relationship, so the trailer owner also shall bear the liability of compensation.

(two) for the insurance company should bear the responsibility for compensation problem should be divided into two kinds of situations are discussed:

1, traction has an uninsured third dangerous vehicles and trailers, another of the vehicle insurance should assume insurance responsibility? There are two kinds of views.

(1) the insurance company should not assume insurance responsibility.

Reason: in June 15, 2000, motor vehicle insurance terms and explain China issued by the China Insurance Regulatory Commission (hereinafter referred to as "" "explain") of article fifth (six): motor vehicle towing vehicle regulations (including Trailer) or other towing, and that at least one without insurance third party liability insurance, regardless of any reason caused the loss of vehicle insurance and third party liability insurance economy, per capita is not responsible for compensation. Legal basis of the interpretation of the dangerous degree of vehicle insurance is: now increases, beyond the scope of insurance liability for any loss of the normal, so the resulting, the insurer shall not compensate.

(2) the insurance company shall bear the liability for compensation in the third party insurance liability limits.

Reason: the law of the people's Republic of China road traffic safety, the May 1, 2004 implementation of the "" (hereinafter referred to as the "traffic law") specified 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 limits the scope of compensation." The legal basis is: the provisions of the insurance companies in motor vehicle compulsory third party insurance liability limits the scope of undertaking liability without fault and protect the injured third people to obtain the prompt relief.

2, the tractor and the trailer are insured third party insurance, two car insurance people are dealing with injured third people assume insurance responsibility? There are three kinds of views.

(1) the traction vehicle insurance in the towing vehicle third party insurance liability limit shall bear the responsibility for compensation for the victims of third people, injured third Trailer insurer does not assume liability to pay compensation.

Reason: the "interpretation" of article ninth (three) provides: trailer after the insured and the main engine as a whole. When insurance accident happens, the liability for compensation liability for damages caused by the main trailer as caused by vehicle. The insured amount of compensation and negative to the trailer liability and liability shall be limited to the main vehicle, the main vehicle limit of indemnity. According to the regulations, the tractor and trailer are insured third party insurance conditions, insurance accident, limited liability limit compensation for the total two car insurer to tractor, a tractor the insurer shall bear the responsibility for compensation. Then the tractor and trailer insurer insurance in accordance with the state of their insurance policy on the third party liability insurance premium in proportion to indemnity. And vehicle trailer is not the usual sense, the insurer should not bear the insurance liability in accordance with the provisions of the "traffic law". Yantian District People's Court of Shenzhen City Guangdong Province judgment is fully embodies the idea. The court holds that: Although insurance companies underwriting the hanging frame for comprehensive insurance motor vehicles including third party liability insurance, and the "motor vehicles" the words used in the insurance contract, but as everyone knows, there is no power device frame does not belong to the motor vehicle, the "traffic law" provisions of article seventy-sixth does not apply to hang carriage insurance belongs to the non motor vehicle, Third Party advocated by the hanging frame in the third party liability insurance within the limits of liability claims there is no legal basis, no support.

(2) two car insurance per capita shall bear the liability of compensation for victims of the third people in their third party insurance liability limits.

Reason: the trailer is also insured motor vehicle, motor vehicle third party insurance, in full compliance with the "traffic law" provisions of article seventy-sixth of the applicable elements. The trailer for the insurer should be the same with the traction vehicle insurance, shall bear the liability for compensation for victims of the third in their respective liability limits. The people's Court of Zengcheng City Guangdong Province judgment is fully embodies the idea. The court holds that: in the traffic before the accident, tractor driver driving the tractor and trailer accident has been talking to an insurance company insured amount respectively 50000 yuan and 200000 yuan third party liability insurance, the third party liability insurance is the compulsory insurance, the case should be applied "traffic law". The insurance company should be in 250000 yuan (total tractor and trailer of the third party liability insurance limit) to limit the scope of liability.

(3) should be considered the collision site traffic accident is decided by tractor or trailer the insurer shall bear the responsibility for compensation.

Reason to see above owners responsibility 2 point of view, this is not superfluous.

Three, the paper analysis

The author thinks, in answer to the tractor and the trailer car owners and their insurers should be liable before, we first need to clarify the following concept:

Trailer

A trailer is motor vehicle problems, China's "traffic law" and "Regulations for the implementation of the" Regulations are as follows.

"Traffic law" 119th article: motor vehicle, refers to the power device drives or traction, running on road for use by staff or for the wheeled vehicle for the delivery of goods and special engineering operations. Non motor vehicle, refers to the human or animal driven, on road transport, and although the power device to drive but the designed maximum speed, empty quality, dimensions in line with national standards for the disabled wheelchair motor vehicles, electric bicycles and other modes of transport. Although the definition of motor vehicle is quite vague, but the author thinks, from the "power traction device" and "on the road" and "for the delivery of goods" and other conditions into consideration, trailer should belong to the category of a motor vehicle. The implementation of the "Regulations for the implementation of the law on road traffic" trailer, trailer carrying such management specification are also under the provisions of motor vehicle. According to the method of interpretation system interpretation of the law, we can draw the trailer vehicle belonging to the category of the conclusion.

The author thinks, in our country, trailer should belong to the motor vehicle.

About liability insurance

1, the concept of

Liability insurance (Liability insurance), i.e. the insured in accordance with the law of third people liable for compensation, the compensation liability of the insurer negative. China's "insurance law" forty-ninth paragraph second: liability insurance refers to the compensation liability of the insured to third party according to law to be insurance mark insurance.

2, the basic principles

A liability insurance belongs to the property insurance, property insurance, the basic principle of insurance interests principles such as the principle of honesty and credit of course applies to liability insurance. But the liability insurance because of the particularity of the risk insured, and special from the general property insurance:

(1) the principle of compensation for the loss.

The basic principle for the entire field of property insurance this principle. Mainly refers to the insurance after the accident, the insured only according to their actual damage compensation to the insurer shall not request, thus obtaining more than damage the interests of the. This principle is decided by the economic compensation nature and function of the insurance, which can effectively prevent the occurrence of moral hazard, embodying social fairness. But the need to pay particular attention to is: "liability insurance in the insured person to fill the compensation liability of the loss of third people in the law, not to fill the insurance accident loss caused by the insured for their financial incurred." The insurer to pay the insurance money compensation only to the insured liability conditions, namely: ① the damage caused by the insurer shall be liable for compensation; compensation liability of the insured bear belongs to the scope of insurance liability. This is different from the pure fill damage insurance.

(2) give priority to the protection of the victim interests principle third

Liability insurance at the beginning, it is just as the insured to transfer a way of its liability, namely the insured risk, loss sharing. Therefore, according to the relativity of contract law, only the subject of insurance contract for liability insurance, to enjoy the right to request payment of the insurance money. If the insured person can not pay, the victim can't request the insurer to pay insurance gold, while the insured because no actual loss, also cannot request insurance to the insurer. This will cause the following dilemma: on the one hand, the insurance people collect insurance does not assume insurance responsibility; on the other hand, the victim can not get any compensation and relief. So the theory of liability insurance to keep pace with the times, has made a significant reform, to a certain extent, to break through "debt 'method lock'", give the victims of the third party direct claim payment of the insurance money. Its legal basis is: the third victim of the insured's claim for compensation, liability insurance contract is a foundation and basis of existence. Without the existence of the third person, be responsibility can't happen compensation insurer damage, when applied to non liability insurance. Common ground says, that is liability insurance contract to a considerable extent, is made for the benefit of third party insurance contract, so it is increasingly required insurance directly to the victims of the third party payment of the insurance benefits from the trends in legislation. Our country has adopted the liability insurance theoretical research results in the legislation: "traffic law" article seventy-sixth gives the third party has the right to claim compensation directly insurance; China in July 1, 2006 implementation of the "motor vehicle traffic accident liability compulsory insurance regulations" (hereinafter referred to as the "compulsory insurance regulations") is one of the important characteristics is the "outstanding people-oriented, will ensure the victim get timely and effective compensation as a primary objective."

(three) of the motor vehicle third party liability insurance

The motor vehicle third party insurance is a kind of liability insurance, universal and serious harm based on motor vehicle, based on the implementation of the motor vehicle third party liability insurance, management of public policy and social welfare considerations, and design the compulsory third party motor vehicle insurance, mandatory for every social member to enjoy the vehicle convenience, they must buy the insurance. Now, the world each developed country and area basically is the implementation of the compulsory third party motor vehicle insurance system.

But in China, although the "traffic law" provisions of compulsory third party liability insurance system, but the "compulsory insurance regulations" is later than the "traffic law" more than two years after the implementation of. For the "Regulations" before the implementation of compulsory insurance, the insurance company of the motor vehicle third party insurance should be regarded as mandatory insurance issues, there are differences in the circles of theory and practice. But the mainstream view is that: for this kind of insurance, the insured shall not enjoy the insured (buy) freedom, the insurer is not entitled to coverage (sell) free, so it is not the commercial insurance, is a kind of borrowing and commercial operation of the compulsory insurance. In addition, China CIRC also requires insurance companies in the "traffic law" after the implementation, the existing three clauses to perform "traffic law" the relevant provisions of the compulsory three party insurance and requirements. Based on the above analysis, the author believes that, in the "Regulations" before the implementation of compulsory insurance, the insurance companies underwriting the motor vehicle third party insurance shall be deemed to be the compulsory insurance regulations.

Four, the author's views and reasons

In the analysis of these three concepts, for this problem, the author thinks:

(a) in the tractor trailer occasions, trailer and tractor owners owners should be common to the victims of the third party liability

1, based on the "general principles of the civil law" in the "highly dangerous work" provisions, tractor and trailer owner shall bear the liability for compensation. China's "general principles of civil law" 123rd stipulation: a high-altitude, high pressure, flammable, explosive, toxic, radioactive, the high-speed transport on the environment is highly dangerous operation causes damage to others, shall bear civil liability; if they can prove that the damage was deliberately caused by the victim, he shall not bear civil liability. According to the provisions of this article, people the liability of motor vehicle damage, should be engaged in high-speed transport activity. Liability and other dangerous liability, to engage in high risk operations can not be mechanically understood as the specific legal operator, called to engage in dangerous activities, is refers to the organization, control the activity, and by engaging in the activity to obtain the relevant interests of owners, occupiers. Based on the analysis of this article, in our country, towing vehicles and trailers are motor vehicle, the owner should bear the responsibility for compensation for the victims of third people.

2, based on the common tort theory, tractor and trailer owner shall bear the liability for compensation. Although in the tractor trailer circumstances, trailer and tractor in operation is one of the owners, but the trailer and tractor owners have decisive effect to the mutual choice and selection of tractor driver. Therefore, although the vehicle or the trailer owners (under normal circumstances is Trailer owners) to the traffic accident no direct negligence, but also have indirect negligence choose other vehicles and drivers, between the fault and to the victims of the third party damage results in the logic of cause and effect, with accountability. Therefore, the tractor and the trailer owners should jointly assume responsibility.

3, broaden the scope for relief, suppression of damage occurs, the tractor and the trailer, the owner shall bear the liability for compensation. At present, China's large scale development of the auto industry, but in the construction of road and vehicle ratio gap, road traffic safety facilities is not perfect, the citizens of traffic safety consciousness and poor compliance with the traffic order, traffic accidents occur frequently, become one of the countries with the most serious traffic accident. At the same time, because of various reasons, the third victim compensation is difficult, the actual repayment rate lower. In order to strengthen the protection to the third person, the relevant laws in Germany have been modified, tractor and trailer owners require owners to victims of the third party bear the liability without fault. Our country should learn from the experience of developed countries, in order to make the relief for the victims of third people more timely and fully, at the same time by prompting the trailer owners choose carefully tractor and driver, restrain the damage extent.

In short, claims that the only Tractor Owners of the responsibility, the trailer as non motor vehicles, in accordance with law of our country does not match; as the vehicle collision location compensation liability subject, ignores the intrinsic link trailer and tractor operation one, and the owners also have to work for the increased risk, the the equivalent of two different vehicles, machinery too. Based on the above analysis, the author thinks, trailer and tractor owners require owners jointly liable for damages to the victims of the third person, has the legal basis and social justice, but also conforms to the development trend of tort law guarantee the victim to obtain relief.

(two) as long as the tractor, trailer against the third party liability insurance, the insurer shall bear the liability of compensation for the victims of third people in the insurance limit

"Interpretation" of the insurer of liability in the tractor trailer accident made regulations -- namely insurance company claim insurance practice. Its legal basis is: tractor trailer can not operate independently, in the case of a trailer, the probability of an accident that the degree of risk will increase the 10%-30%, as the tractor trailer towing trailers whether and when is uncertain, so the towing vehicle insurance is insurance third party liability of the vehicle, for the risk of towing Trailer increase after the balance through the dangerous, with trailer insurer to offset the increased allocation of insurance indemnity. But the rationality is the insurance practices puzzling:

1, and the law of our country does not match

"Traffic law" provisions of article seventy-sixth of the liability without fault and give the victims of the third party direct claim compensation insurance companies in motor vehicle third party liability compulsory insurance limits, so as long as the insured had a traffic accident compulsory motor vehicle third party liability insurance, and caused third casualties loss of or damage to property, the insurance company shall be liable for the no fault liability in the motor vehicle third party liability compulsory insurance limit. The tractor and trailer with the motor vehicle, the insurance is the motor vehicle third party compulsory insurance conditions, insurance company based on its so-called agreed insurance practices and accordingly signed insurance contract, compensation claims rejected or only in accordance with the towing vehicle compulsory third party insurance limit, is obviously not in conformity with the provisions of the method.

2, legal and liability insurance system contradiction

As mentioned above, the liability insurance system function through the form of insurance, risk insured, the insured loss sharing, the formation of "all for me, I for all" mutual situation. And the insurance company will by "the law of large numbers" and their operating costs as well as the state of the insurance policy to determine the appropriate fee, insurance premium. As for insurance premium to the price, the contract obligations of the insurer to fulfill is when the insurance accident occurs, the responsibility of insurance. As in a vehicle or the trailer uninsured risk of the third cases, another vehicle insurance exclusions, so, the insurer has the right to refuse to perform the contract, the obligations of the contract, a serious violation of the insurance contract bilateral paid character; and in the two car insurance third party insurance situation, the insurer only in accordance with the traction vehicle insurance compensation, trailer only into allocation of insurance insurance indemnity, balance of interests between the insurer on the basis of two. In this way, can appear the tractor and the trailer car mainly to the victims of the third party shall bear the responsibility for compensation, and the insurer is not liability situation. This is not the insured motor vehicle third party liability insurance insurance intention, and against legal liability insurance system.

3, ignoring the protection of the interest of the third party victim has been paid more attention to modern in liability insurance.

Now the liability insurance pay more and more attention to the victims of the third party protection and social order and stability. Insurance companies and the insurance practice, and only the insurer and the insured interests, ignoring the categories of third human nature, without consideration of the related party of the insurance contract that the interests of third parties. Because the outside between the insurer and the insured shall not against contract injured third people, so the insurer cannot be specified in a contract on the grounds, to waive or reduce the force on third party insurance liability insurance limits in motor vehicle third.

To sum up, the author believes that, in insurance practice on the grounds, advocated to reduce or exempt the liability insurance company point of view, it violates the principle of honesty and credit, and "traffic law" provisions of the conflict, and does not comply with the legal liability insurance and protection development interests of the third party victim tendency, should not be supported.