The Feature of Insurance Solicitor Service Contract and Regulations Governing the Supervision of Insurance Solicitors -- Comment on Taiwan Administrative Supreme Court Judgement Pan Zi No. 2117 (2011)

Abstract

保險業務員與保險公司間之契約關係，究屬勞動、委任、抑或承攬契約，將嚴重影響保險公司是否應提撥勞工退休金。事實上保險業務員與保險公司間契約關係，並非僅限勞動、委任或承攬關係中之一種，其係依照不同業務員之需求而設計不同法律關係。本文所評釋的最高行政法院100年度判字第2117號判決，以保險業務員管理規則作為論斷保險業務員與保險公司間之契約關係屬性。蓋保險業務員管理規則係主管機關對保險公司之行政管理規範，其主體為主管機關與保險公司，不同於保險業務員與保險公司間契約關係，其主體乃為保險業務員與保險公司，該判決未注意保險監理與私法自治原則之差異，並不妥當。

What’s kind of contract relationship between insurance solicitor and insurance company? Is belonged to employment contract, retainer contract or Independent contractor? The contract relationship between insurance solicitor and insurance company will determine whether insurance company prepares to save pension before hiring. In fact, the contract relationship between insurance solicitor and insurance company is not limited to one type of contract which has been mentioned (employment contract, retainer contract or Independent contractor). The contract relationship may be designed to every insurance solicitor’s need. Taiwan Administrative Supreme Court Judgement Pan Zi No. 2117 (2011) which commented by this article, recognizing the contract relationship between insurance solicitor and insurance company by Regulations Governing the Supervision of Insurance Solicitors (hereafter GSIS). However, GSIS is belong to an administrative management regulation, and competent authority use GSIS to supervise insurance company. The subjects of GSIS relationship are competent authority and insurance company. In contrast to GSIS relationship, the contract relationship between insurance solicitor and insurance company, their subject is belonged to insurance solicitor and insurance company. Taiwan Administrative Supreme Court Judgement Pan Zi No. 2117 (2011) obviously doesn’t recognize the difference between insurance supervisory and autonomy principle.