【作者】 马楠；

【导师】 赵新华；

【作者基本信息】 吉林大学 ， 民商法学， 2009， 博士

【摘要】 本文以责任保险制度的应然功能为理论基础及分析工具,对责任保险第三人请求权制度的相关问题进行了分析与论述。就写作思路而言,本文首先界定了作为责任保险第三人请求权理论基础与立法取向的责任保险应然功能,并进一步说明了合同相对性原理的基本内涵及其与责任保险第三人请求权的关系,为责任保险第三人请求权在理论上的建构排除了障碍,进而以责任保险应然功能为理论尺度对责任保险第三人请求权的内涵、对应及制约等进行了梳理与界定。具体而言,本文的主体分为五个部分:第一部分从理论与实证两个视角界定了一般意义上保险制度的应然功能,并从历史的启示与现实的需要出发、以责任保险的标的与本质为基点论述了保险制度应然功能在责任保险制度中的延伸;第二部分在论述了合同相对性原理的基本涵义、法理基础及其实践发展轨迹的基础上,阐明了责任保险保护第三人利益的立法精神,并对责任保险第三人请求权超越合同相对性原理进行了深入分析;第三部分从民事请求权一般理论出发,对责任保险第三人请求权的内涵进行了界定,进一步了阐释了责任保险第三人直接请求权的基本问题。第四部分论述了责任保险第三人请求权的对应即责任保险人给付义务的相关问题,包括义务范围、具体规制等。第五部分则论述了对责任保险第三人请求权的制约即责任保险人的抗辩义务、抗辩与和解的控制等问题。更多还原

【Abstract】 The development of society and economy makes unexpected accidents take place widely in the society, accordingly, damage liability occurs more and more frequently. With the development of civil liability, the area of damage liability is expanding and the effectiveness of damage liability is reinforced. So people need a mechanism to distract liability danger, liability insurance comes into being accordingly. This mechanism is able to detract damage liabilities of the public and compensate the expense because of unexpected accidents which the third party affords. Liability insurance has so much potential, but the research on liability insurance in our country is in the beginning, especially in the basic theory. So, the study on the basic theory of liability insurance is very significant in theory and practice. In the basic theory of liability insurance, the function of liability insurance on protecting the third party who suffers injury is powerful, so the request right of the third party of liability insurance is an important subject. The right is beneficial for the public and favorable for justice and equity. With the function of liability insurance on protecting the third party is attached great importance by the legislator and public, the request right of the third party of liability insurance aiming at compensate the expense because of unexpected accidents which the third party affords should be of great concern in theory and practice. And this paper is a study on request right of the third party of liability insurance.In structure and content, this paper is composed of five chapters. The first chapter explains and defines the function of liability insurance as theory basic and analyzing tool. The other chapters all make this as research point of view and theory scale. The first chapter explains the function of insurance above all, defines it on theory and practice angle, and according to the need of history and realism, elaborates the extension of function of insurance in liability insurance. In conclusion, the function of liability insurance includes: distracting insurant’s damage liability or damage liability danger, and protecting the third party’s benefit. And the second function is more and more powerful.The second chapter explains the doctrine of privity of contract theory which is the handicap of request right of the third party of liability insurance, elaborates and the relationship between the doctrine of privity of contract theory and the request right of the third party of liability insurance, removing the handicap for the request right of the third party of liability insurance. In the beginning of the establish of the doctrine of privity of contract theory, there are some exceptional regulation for amendment, exerting different function and restricting this doctrine’s disadvantage. And with the development of society and economy, this restricting is more and more powerful. The expanding of effectiveness of contract comes into being. This legislation trend is on behalf of protecting the third party’s and public benefit. The request right of the third party of liability insurance, especially the direct request right of the third party of liability insurance, emphasizes protecting the third party’s and public benefit, except distracting insurant’s damage liability or damage liability danger. On surpassing the doctrine of privity of contract theory, we can do research from theory basic and legislation spirit, collision and settlement of value, displace of obligation.The third chapter begins from the basic theory of civil request right, explains the meaning and theory basic of the request right of the third party of liability insurance and the problems of the direct request right of the third party of liability insurance. After analyzing and defining the basic meaning of civil request right, this paper deduces the common character of request right of the third party of liability insurance. Making a comprehensive view on legislation and prejudication all over the world about request right of the third party of liability insurance, the request right basic of request right of the third party of liability insurance includes: the request right basic in law, the request right basic in contract, right succession from insurant, expanding of effectiveness of enforcement and replacement right of creditor. And the doctrines on basic of the direct request right of the third party of liability insurance includes: the theory of legal right, the theory of original acquirement, the theory of right displacement and the theory of liability deviated, and the theory of original acquirement and the theory of right displacement are more reasonable.The fourth chapter’s subject is about insurance obligation of liability insurer as the corresponding obligation of request right of the third party of liability insurance. On the coverage of liability insurance, its content is based on contract. Policy holder and liability insurer have right to negotiate about kind of liability, time limit, compensate fee and exceptional liability. If the promise in contract is not clear, the explaining should be beneficial to insurant and the third party. But they all must not go against legislation and contract. Liability insurer’s obligation includes: the obligation of reserving liability insurance compensation before insurant pays to the third party, the obligation of directly pay liability insurance compensation to the third party of liability insurance while being asked by insurant, the obligation of directly pay liability insurance compensation to the third party of liability insurance according to contract and the obligation of directly pay liability insurance compensation to the third party of liability insurance according to regulation.The fifth chapter’s subject is about liability insurer’s participating right in counterclaim as the indirect restricting factor of request rights of the third party of liability insurance, including the control of deraignment and compromise, the obligation of direct deraignment. The meaning of liability insurer’s participating right in counterclaim is that liability insurer’s participating right in the process of negotiation between insurant and the third party after the liability insurance accident in the contract takes place. Making a comprehensive view on legislation and theory all over the world about liability insurer’s participating right in counterclaim, there are two modes: the first mode is to control deraignment and compromise and the second mode is to establish direct deraignment obligation. And the second mode is more beneficial to insurant and the third party. As a whole, this paper is from basic theory to material system in logic. The function of liability insurance defined in the first chapter is the whole paper’s theory guidance and analyzing scale. The second chapter removes the handicap of the request right of the third party of liability insurance in theory, and it becomes the basic theory part of this paper with the first chapter. And the first chapter is from obverse theory angle, the second chapter is from reversed theory angle. The third chapter is based on the anterior parts, defines the meaning of the request right of the third party of liability insurance. The fourth chapter and the fifth chapter is bout material system, the fourth chapter is obverse corresponding content and the fifth chapter is reversed restricting content.更多还原