A Study on Whether the Insurance Contract (Cash Surrender Value) can be Attached and Executed - From the Perspective of American Law

Abstract

保險契約之強制執行所指者，乃對未到期、未發生保險事故之保險契約即保單現金價值之執行。關於保險契約可否強制執行問題，學說與司法實務界長期未有定論。我國學界通說採肯定說，惟司法實務則肯定說與否定說皆有之。為解決此一爭議，本文擬先就台灣學說及司法實務關於保險契約，即保單現金價值得否強制執行問題與探討，再對照美國關於保單現金價值及保險金可否強制執行之法制，最末，提出立法建議，冀對爭議之弭平有綿薄助益。

Attachment and execution of insurance contract refers to seizing and garnishing from the cash surrender value of an unmatured life insurance contract. Whether the cash surrender value of an unmatured life insurance contract is subject to the writ of attachment and execution has long time been a highly controversial issue amongst both the academia and court decisions in Taiwan. While prevailing arguments of academia provide an affirmative answer to this issue, court decisions remain split. For the purpose of resolving this puzzle, Part II of this article will first review contentions of legal scholarship and representative court opinions in Taiwan. Part III will probe into U.S. Bankruptcy Code and statutory laws provided for this issue in all fifty states as well as case laws in the U.S. Part III will compare the American laws to current Taiwanese law, and present proposal of amendment to Taiwanese law in accordance with the American model which, this article consider, may help to address the above-mentioned issue.