論保險代位之被保險人優先受償模式（下）

Abstract

本文係在探討，在保險代位原則下，特別是於不足額保險、而應負責之第三人資力不足時，保險人與被保險人之間受償順序之問題。此一問題不僅於實務上具有重要性，多數見解所採取的「被保險人優先受償模式」，近年也逐漸受到不同見解、不同研究方法的質疑與挑戰，在學理上亦饒富探究之價值。對此，本文將由傳統的法釋義學方法出發，藉由對立法例、實務與學說見解的分析，以重新思考相關的法理基礎。本文也將使用法律經濟分析的方法，以經濟模型重新考量代位求償過程中可能的因素，重新驗證被保險人優先受償模式對於被保險人的效用。就結論而言，在損失填補原則的架構下，被保險人優先受償模式仍應為最適的解決方案。但此原則應有以法規或嚴格意定予以排除、修正之空間。在判斷順序上，可依三階段判斷：先檢視法規有無特別規定，再檢視當事人間是否有特別約定，若均無再適用被保險人優先受償模式以分配之。

The aim of this paper is to explore, in light of the principles of insurance subrogation, the problems that can arise with regard to payment priority between the insurer and the insured, particularly in cases of underinsurance and when the responsible third party has insufficient funds to make up the difference. Not only is this issue of great importance in practical terms; it is also well worth exploring from an academic point of view, given the increased questioning of the insured-whole doctrine (which had for many years been the majority opinion) using a variety of research methods and interpretations. The present study takes the traditional rechtsdogmatik approach as its starting point, analyzing legislative precedents, practical aspects and academic theories to re-examine the underlying legal principles. The paper also makes use of economic analysis of law techniques, employing economic models to reconsider the factors that may be involved in the subrogation process, and re-examining the efficacy of the insured-whole doctrine from the point of view of the insured. The main conclusions reached are that, within the framework created by the principle of indemnity, the insured-whole doctrine is still the optimal solution; however, there may be situations in which the insured-whole doctrine must be rejected or modified in light of legal or regulatory requirements or strict interpretation. Determination can be made in three stages. Firstly, the relevant laws and regulations should be examined to determine whether any special provisions apply. Then, an examination should be made to determine whether any special agreements exist between the parties concerned. If no special legal or regulatory provisions apply and no special agreements exist, then the insured-whole doctrine can be applied.