再論我國保險人請求權代位之性質

Abstract

本文係在討論保險人請求權代位之性質與相關問題。對於保險人請求權代位之性質，我國通說將其定位為「法定債之移轉」，但是否完全妥適，立法政策上應仍有討論之空間。而除了原有的爭議外，近來學說亦漸有不同見解提出，故更應有加以探討之必要。藉由立法例與學說的歸納，本文整理三種主要的代位模式，並著重較多學說所主張的英美保險代位理論，由學說上的爭議點切入，以探討其與法定移轉理論之差異與處理相關問題時的優劣。本文以為，法定移轉理論與英美保險代位理論運作之模式不同，亦各有特點，立法政策上的修改亦當需要更為審慎的評估；惟從現狀下的許多問題而言，英美保險代位理論應能提供一參考與修正的方向。對於學說與實務適用法定移轉理論之疑義，本文亦將提出相關建議，以供未來之參酌。

This paper examines the nature of insurers’ right of subrogation and related issues. In Taiwan, an insurer’s right of subrogation is generally defined as legal assignment; however, there would appear to be considerable room for debate as to whether this is a wholly appropriate way of dealing with the issue. In addition to the long-standing debate over the appropriateness of this definition, in recent years several new views on the subject have been put forward; these views also need to be considered. Examining both legal precedent and juristic theory, this paper analyzes the three main subrogation models, focusing in particular on common law insurance subrogation theory, which has the most support from legal scholars. By concentrating on the juristic aspects, the paper explores the differences between common law subrogation theory and legal assignment theory, and on their ability to explain the relevant problems. The paper concludes that models based on common law subrogation theory and those on legal assignment theory demonstrate significant differences, and that careful evaluation is needed when making revisions to legislative policy. It is suggested that, when tackling the various problems that exist in this area, common law subrogation theory may be able to offer useful insights. The paper also offers recommendations regarding the doubts–both theoretical and practical–that have been raised with respect to the adoption of legal assignment theory.