| Summary: | 碩士 === 國立臺北大學 === 法律學系一般生組 === 101 ===
Article 94-2 of the Insurance Act providing for indemnification through right of claim on insurer’s by third persons injured in consequence of illegal acts by the insured, permitting direct claims to be made on the insurer for compensation, and such a right represents a breakthrough in third party beneficiary law. The legislative purpose underlying this amendment is widely regarded as being designed to serve to protect the rights of third parties. But the Insurance Act provides for optional commercial insurance, which differs in character from mandatory liability insurance contracts which may not reflect voluntariness on the part of the insured, so such remains different in kind from the mandatory liability insurance. This practice relies on the notion of “liability insurance protects victims”, as for any optional liability insurance it is merely reflective as an incidental effect of liability insurance which from the beginning undertakes this important obligation. From the perspective of the social utility of liability insurance, the allowance of third-party beneficiary right in optional liability insurance serves to protect such persons, which neither can be deemed to violate any principles of law nor to increase the burdens on either the insurer or insured, and thus is wholly reasonable.
In addition to direct claims representing a breakthrough in the exceptional principle of separation, from the contractual principle of relativity and compatible with contract law theory, but in terms of the controversial issue of the nature of direct claims, regardless of whichever jurisprudential theory one adopts, one is hard-pressed to obtain a satisfactory conclusion. This paper argues that since the right of direct claim for third-party beneficiaries represents the result of public policy considerations, and given that mandatory liability insurance aims to protect victims, and thus in terms of the applicable contractual theory and insurance system design, it becomes imperative to accept the principle of broadly protecting victims’ rights to compensation; and conversely, for optional liability insurance where the objective is not primarily to protect victims, but rather focuses on “protecting the insured” as the core calculation, thus the role and status of the third-party is distinguishable, and this difference sufficiently explicates the controversy in terms of the treatment of victims in liability insurance systems both as regards design and academic arguments.
Therefore, in mandatory liability insurance policies the third party beneficiary direct right of compensation may help to achieve the important public policy goals of expeditiously compensating victims, which is certainly reasonable; but in terms of optional liability insurance, this paper argues that provision of third party beneficiary status is an excessive measure to protect victims which lacks sufficient justification, and also vitiates the insured’s rights of volition and the legal principle of proportionality. Moreover, in consequence of the ambiguity surrounding the third party right of direct claim, and the inadequate nature of the diverse academic disputations on the subject, along with the lack of a complete set of complementary policy measures, it is difficult in practice for adequate practical interpretations of Article 94-2 of the Insurance Act to emerge to resolve difficulties. Thus, the lack of stability of the law in practice, and impossibility to foresee resolution soon, signifies that the law is hardly a blessing to the society and our peoples.
As it may be, this paper argues that optional liability insurance ought not be deemed to provide direct claim rights for third party beneficiaries, and Article 94-2 of the Insurance Act ought to be amended to delete such provision, with concomitant amendment of Article 95 thereof, to provide for full realization of that additional Article in the first place. As for other matters such as providing for protection of victims by prohibiting penalties to insureds, providing superior right in claim of insurance proceeds for victims, these remain open to further legislation. Prior to amendment of this Article, this paper argues that Article 94-2 should be interpreted as an optional provision, and in nature should be deemed as if a statutory right.
Keywords:Direct Action Statute;Mandatory Liability Insurance;Optional Liability
Insurance;Liability Insurance Protects Victims;Separation
Principle;Doctrine of Liability Fixation
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