Study on Loss Indemnity Principle under Insurance Laws across Taiwan Strait-Focus on Insurable Interest,Double Insurance and Insurance Subrogation

• Main Authors: Shu-pao Lee, 李淑寶
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/82298536395053207520

碩士 === 東吳大學 === 法律學系 === 99 === Principle of Indemnity is a basic but indispensable principle of Insurance Law. It follows the concept of “no damage, no indemnity”; focus on the relationship between the damage and the indemnity and the restriction of insurance amount. Means that while the insured can have their right of insurance, they will not gain more than how much they deserved. Insurable Interest, Double Insurance and Insurance Subrogation, all of them can realize the spirit of Principle of Indemnity. However, countries have different explanation and applications about the scope where the principle can be applied, the validity and the relationships between the parties. China issued the Insurance Law of the People’s Republic of China which cooperates with the Insurance Contracts Act and the Insurance Business Law and has been repaired on Oct 28 2002 and Feb 28 2009. Insurance Law in Taiwan separates Insurance Contract into Property Insurance and Personal Insurance according to the 13th, while the Insurance Law of the People’s Republic of China did not write it clearly, we can still know that its Insurance Low has divide into Property Insurance and Personal Insurance according to the 12th Ch2 of Insurance Contract and the classification of 2nd and 3rd in Ch2. Property Insurance and Personal Insurance are classified by the Insurance Object, and it is possible to take this standard as basis of classification of the business scope. But if take this as the basic of rights and duty of Insurance Contract, the goal of restriction will be failed because of the differences and conflicts between the character of rights and duty of Insurance Contract. The Insurance Law of Taiwan and China are dividing the Insurance Contract into Property Insurance and Personal Insurance, and since the Insurance Contract is not divided into Indemnity Insurance and Fixed Benefit Insurance, there are conflicts between implication and researches. Taiwan’s Supreme Court announced a verdict to the No.1166 case, which considers that it is appropriate for Personal Insurance to apply to Double Insurance. Though it is not accepted by most of the scholars, this verdict had influenced the implication in this field for more than ten years. And till Apr 23 2004, this inappropriate was overthrow by the No.576 explanation in Council of Grand Justice. Taiwan’s Supreme Court announced a verdict No.495 deliver clearly that the Personal Insurance is not belong to Indemnity, except Health Insurance, Accident Insurance, Disability Benefit and Medical Benefit are belong to Indemnity. It is praised since most of them are Block Insurance and are not Excess Insurance. Though China arranged Double Insurance and Insurance Subrogation in Property Insurance Contract, it is not appropriate to use it in Personal Insurance Contract. While there are some types of Insurance of Personal Insurance are belonging to Indemnity, it is not good to make them a clear boundary. This article is trying to give some advice to improve the low of Taiwan and China based on the result of the researches.