論保險代位與自願給付──評最高法院106年度台上字第411號等判決

Abstract

保險代位為保險法中之重要原則，一般認為保險代位之成立以保險人應負理賠責任為要件。如保險人不須負理賠責任而仍為給付，則屬於自願給付而保險人則無保險代位權。但理賠與自願給付應如何認定，我國法尚欠缺具體標準。最高法院 106 年度台上字第 411 號等判決即涉及此一爭議，前歷審見解未盡相同，而更需要進一步之研究。本文認為可參考英美法之誠實合理原則，如保險人之給付出於善意與合理之確信，即屬於保險理賠。且英美法採取實質標準，保險理賠之認定並不以完全符合契約為必要。就本案而言，保險人已盡相當調查，且給付金額與應理賠之額度相同，可認為具善意與合理性，故應為保險理賠而保險代位仍可能成立。但解除保險契約之約定，實際上將根本規避保險代位，故應違反強制規定而為無效。

As an important principle in insurance law, the insurer’s liability under an insurance contract is generally regarded as the prerequisite to subrogation. If the insurer’s payment is voluntary and not based on contract, then insurer will have no right to subrogation. However, Taiwan has no specific rule for voluntary payment. The Taiwan Supreme Court Civil Judgment 106 Tai Shang Tzu No. 411 and other relevant cases have reached different conclusions regarding this issue; thus, it demands further research. This paper suggests that Taiwan may consider the honest and reasonable rule in common law. If an insurer’s payment is based on good faith and a reasonable belief, then it is a decent payment, not voluntary. Moreover, common law employs a substantial rule, under which an insurance contract does not dictate the form of the insurer’s payments. If the insurer has done its due diligence and the resultant payment is the same as the amount of liability under contract. In such case, the payment is deemed honest and reasonable and thus constitutes a decent payment. Consequently, subrogation is still possible. However, a settlement that rescinds the insurance contract will substantially and fundamentally exclude subrogation, which is a violation of the mandatory rule and should be void.