【作者】 孙长江；

【导师】 徐卫东；

【作者基本信息】 吉林大学 ， 法律， 2005， 硕士

【摘要】 汽车消费贷款保证保险合同到底是保险合同还是保证合同,其法律性质如何界定,我国法律缺乏相关规定,造成司法实践中存在诸多争议,由于合同性质不同,适用的法律也就不同,保险人的追偿方式及诉讼主体的确定都会因此不同。本文通过借鉴比较研究的方法,结合司法实践,分三个章节对汽车消费贷款保证保险的许多难点、热点问题提出了解决方法和立法建议。首先,分析了汽车消费贷款保证保险的基本内容和性质,认为该合同属于保险合同,应当适用《保险法》。其次,论证了汽车消费贷款保证保险代位求偿过程中存在的法律问题,分析了这些问题可能带来的法律后果,提出了这些问题的解决方法。最后,论证了汽车消费贷款保证保险合同纠纷的诉讼主体和管辖问题。更多还原

【Abstract】 There are no relevant regulations on how to define legal nature of guaranty issuance contract, whether it is issuance contract or guaranty contract, in laws of our country. This results in a lot of controversy in judicial practice. With different contract natures, it applies to different laws and therefore determination of recovery method and litigation subject of insurer is different. This paper proposes solutions and legislative suggestions for many difficulties and hot points in guaranty insurance contract of automobile consumer credit through referring to method of comparative study and combining judicial practice. There are three chapters in this paper: The first chapter mainly elaborates basic contents and nature of guaranty insurance contract of automobile consumer credit. It demonstrates nature of guaranty insurance contract of automobile consumer credit, points out deficiencies in The Supreme People’s Court’s Interpretations of Certain Issues Concerning Trial of Insurance Dispute Cases (Exposure Draft) and correspondingly proposes suggestion for modification, through analysis of definition, basic contents and features of guaranty insurance contract of automobile consumer credit, comparison between features of guaranty contract and guaranty insurance contract and analysis on whether guaranty insurance contract of automobile consumer credit is dependent contract or independent contract. The author considers guaranty insurance contract, in nature, as a kind of insurance contract, which has guaranty function with insurance products as manifestation. The essential attribute of guaranty insurance is a kind of insurance in terms of subject of concluding a contract, property of responsibility, method of responsibility, scope of responsibility and concrete contents of contract. Car purchase contract and loan contract are basic contracts for guaranty insurance contract of automobile consumer credit. However, guaranty insurance contract of automobile consumer credit is not void because basic contracts are void, revoked or not established. Guaranty insurance contract of automobile consumer credit is relatively independent. When dealing with this kind of contract disputes, we shall apply general regulations concerning insurance contract in Insurance Law. The author suggests that Article 34 of The Supreme People’s Court’s Interpretations of Certain Issues Concerning Trial of Insurance Dispute Cases (Exposure Draft) be modified as: “(nature and party concerned of guaranty insurance) guaranty insurance contract is insurance contract concluded to guarantee contractual obligation to be carried out. It has guaranty function.”Article 36 as: “(legal application) people’s court shall apply Insurance Law when hearing guaranty insurance contract disputes to determine rights and obligations of party concerned; apply principle of justice and good faith where there is no regulation in Insurance Law.”The second chapter mainly elaborates problem of right of subrogation in recovery process of guaranty insurance contract of automobile consumer credit. It analyzes legal problems in subrogation process of insurer and proposes methods and suggestions to solve these problems in six aspects, that is, insurable interest, target of right of subrogation, letter of subrogation, name of executing right of subrogation of insurance, offence of insurant, amount of subrogation of insurer and distribution of its interests. Concerning problem of insurable interest, the author probes into reasons for the insured having no insurable interest, makes a comparative study on various views of insurable interest and distinguishes insurable interest from insurance contract interest. The author thinks, in guaranty insurance contract of automobile consumer credit, insurance contract interest refers to that the insurer shall guarantee the insurant (financial institutions) to recall principal of loan and interests when the insured does not carry out his obligation of repayment; insurable interest of the insured refers to that the insured obtains loans from financial institutions through guaranty of the insurer. Thereby, the insured has insurable interest and guaranty insurance contract of automobile consumer credit is legal and valid. Concerning target of right of subrogation, the author analyzes status of the insured of guaranty insurance contract of automobile consumer credit and combining with provisions of Article 45 of Insurance Law, considers that thethird party who causes damage of insurance object shall not be the third party outside of two parties that conclude insurance contract or the third party outside of the insured and insurer, but the third party outside of insurer and insurant. Insurer has right of recovery when the insured causes damage to insurance object, as the third party outside of insurer and insurant. Concerning letter of subrogation, the author analyzes definition of letter of subrogation and thereby elaborates force of letter of subrogation in three aspects, that is, contradiction between recorded contents of letter of subrogation and objective reality, methods of obtaining right of subrogation of insurance and influence of letter of subrogation on right of subrogation. The author thinks, whether letter of subrogation is signed does not influence insurer to obtain right of subrogation under the circumstance that legal subrogation carries out “legal transferee”. Concerning name of executing right of subrogation, the author analyzes the insured’s disputes in name of insurer’s subrogation in judicial practice, compares various views about under which name the insurer executes recovery in theoretical fields and elaborates that our country shall establish subrogating name with insurer as priority and insurant as supplement. The author thinks, as long as insurer of guaranty insurance contract of automobile consumer credit carries out obligation of payment of claims and obtains legal right of subrogation, name of recovery shall be change to name of insurer, whichever stage of recovery by the insured who causes damage. After insurer obtains right of subrogation, insurer still has 10% of excess, therefore, it is necessary to consider name of insurer as priority and insurant as supplement when executing right of subrogation. The author suggests, the following shall be explicated through judicial explanations: when people’s court deals with cases concerning right of subrogation, as long as insurer possesses conditions for legal right of subrogation, he can apply to people’s court to change subject within the line of subrogation at any time in any stage. After people’s court informs the insured of matters concerned change of subject in written form, it still proceeds according to procedures of litigation under name of insurant.Concerning offence of insurant, the author analyzes two offences that cause right of subrogation not to be realized when insurant gives up recovery for guarantor of the insured or insurant exceeds limitation of actions and elaborates influence of insurant’s two offences on insurer’s execution of right of subrogation. The author thinks, insurer’s right of subrogation not only includes common guarantor’s right of recourse to debtor after he assumes guaranty responsibility, but also right of recovery to other guarantors and mortgage (pledge) that are contained in the same debt credit that guarantor does not possess. Insurant has serious offence when he gives up recovery to guarantor of the insured. Negligence of insurant makes him lose of time limitation interest, causes the insured or guarantor of the insured to propose defense to insurer and therefore insurer cannot carries out recovery to the insured or guarantor of the insured. Thereby, insurer has the right to request insurant to reduce and remit repayment amount of insurance. Concerning amount of subrogation of insurer and distribution of its interests, the author analyzes theoretical controversy in whether insurer can carry out recovery to his total amount of damage along with all the others and elaborates the principle of interest distribution of fund that insurer gains by subrogation through combining calculation of amount of subrogation in judicial practice. The author thinks, fund that insurer recovers from payment of claims shall not be distributed in proportion by insurer and insurant, but make up real losses of insurant first. The remaining part after compensating total amount of insurant’s losses can be owned by insurer. The third chapter mainly elaborates subject of litigation and jurisdiction of disputes of guaranty insurance contract of automobile consumer credit. The author proposes deficiencies in Article 39 in The Supreme People’s Court’s Interpretations of Certain Issues Concerning Trial of Insurance Dispute Cases (Exposure Draft) and considers “where obligee prosecutes against the insured according to his contract with debtor (the insured), he shall not list insurer as the third party or codefendant.”The situation that obligee (financial institutions) and debtor (the insured) confront each other in court will appear. They will cover up and conceal problems whether the loan更多还原