消费贷款合同项下的履约保证保险研究

【作者】 禹欣；

【导师】 田土城；

【作者基本信息】 郑州大学 ， 法律， 2005， 硕士

【摘要】 履约保证保险,是指保险公司为合同项下的债务人向债权人提供保证保险,承诺如果债务人不按照合同约定或法律的规定履行义务,则由该保险公司承担赔偿责任的一种保险形式。 履约保证保险存在两大理论争议,保证保险的性质和保证保险合同的独立性。对此笔者均进行了深入的探讨并提出了自己的观点。就保证保险的性质问题,目前有三种主要的观点,即保证保险担保论、保证保险保险论、折衷论。本文通过将保证保险与担保、保险的对比,明确笔者的观点,即:保证保险是保险人以保险的形式提供的一种担保,或者说是以保险公司提供担保为内容的保险险种。这一险种是保险与担保两种法律制度的交叉。对于保证保险合同的独立性问题,由于保证保险法律关系中存在两个密切相关的合同,同时作为保证保险标的的贷款债权产生于消费贷款合同,从而使消费贷款合同与其保证保险合同之间呈现出彼此相伴相生的状态,甚至产生许多类似于主从合同关系的特点。但保证保险也仅仅是基于其保险标的的原因而受消费贷款合同的影响。除此之外并无必然联系。如:消费贷款合同的转让不能当然地引起保证保险合同的转让,这一点上,完全不同于“主合同转让,从合同随之转让”的主从合同原则。因此,二者之间并不是主从合同关系。 据此,结合实践中保证保险的运行情况,笔者进一步就以下几个争议问题提出自己的观点: 第一,保证保险合同与保证保险合作协议的关系问题。以汽车消费贷款保证保险为例,由银行、保险公司、汽车经销商三方签订的三方合作协议是保证保险业务中的一个重要合同。银行希望通过它而改变自己在保证保险合同中只能被动受益的地位。由于合同具有相对性,保险公司在三方协议内的承诺不能替代或成为保证保险合同的内容。保证保险合同是独立有效的,它不为三方协议所制约。银行只能基于三方协议要求保险公司承担违约责任而非保险责任。更多还原

【Abstract】 Fulfilling-agreement guarantee insurance means insurance company promises to the beneficiary that it will take on the obligation of compensation for loss if the insured hasn’t fulfilled the obligations in the contract. The text discusses the character of the insurance and relevant legal questions in the case of consuming credit.There are two controversial theories in the field of the guarantee insurance, which are the character of the guarantee insurance and the independence of the contract of guarantee insurance. As for the former, the text contrasts it with guarantee and insurance in details, and points out the author’s opinion. The author considers the guarantee insurance is a kind of guarantee the insurance company provides for people by the means of insurance. As for the latter, the author considers the contract of guarantee insurance is independent to the contract of consuming credit. It is because of the insurance target that the guarantee insurance contract is influenced by the contract of consuming credit. The insurance target of guarantee insurance, which comes from the contract of consuming credit, makes the guarantee insurance contract dependent more on the contract of consuming credit, and makes the relation of the two contracts more like principal and subordinate relationship. However, they have no other relations indeed.Basing these above opinions, the author carries out his own opinions hereinafter:1. The relationship of the two contracts of guarantee insurance and three parties’ cooperative contract.The three parties’ cooperative contract is an important contract signed by bank, insurance company, and motorcar agency. Because of the relativity of contract,insurance company’s promises in the contract of the three parties can’t substitute for them in the independent contract of guarantee insurance. Bank only has the right demanding insurance company fulfill its duty of contract but insurance comes from the three parties’ contract.2. Distinguishing the right and obligation from the target of guarantee insurance.The author considers this distinguishing means little. As the target of a special insurance, the target of guarantee insurance is a kind of valuable rights and interests. For borrowers, it means an obligation to return, and for banks, it means a right demanding return. The two can’t be separated.3. The insurance interest of the guarantee insurance.The destination of insurance interest is for definite the behavior of betting and moral danger. So it regulate the beneficial, and if the persons who building the insurance and who is benefited from the insurance are deference, the insurance interest is not dispensable for the former.4. The relationship of the guarantee insurance and the guarantee when they both happen at the same time.The author considers it is a question of the guarantee field. Whether the insurance company compensates or not has none business with the guarantee of the borrower or a third party, however, it is dependent on if the insurance accident happens, and if the insurance company has the duty to compensate.5. The applicable law of the guarantee insurance.According the author’s opinions, the guarantee insurance is a kind of guarantee the insurance company provides for people by the means of insurance. So the applicable law should be the insurance law and the guarantee law in the aspect of the insurance contract as well.6. The subrogation demanding in guarantee insurance.The subrogation right in guarantee insurance doesn’t have the same meaning inthe law of insurance..7. The transfer of the insurance target.Our insurance law prescribes that the transferring of the insurance target ought to be approved by the insurer in advance. The guarantee insurance target means right for the bank, that its transfer can’t damage to the insurer, while it means obligation for the borrower, that its transfer will damage to the insurer. We shouldn’t treat them coequally.Our legislation about guarantee insurance is insufficient, and we hope it will be better in the future.更多还原