摘要
机动车第三者责任商业保险(商业三责险)中比例赔付条款效力争议的实质是保险人能否借此排除被保险人的连带责任。机动车第三者责任强制保险(交强险)之中也存在相似问题。对此,应依据诉争保险类型的属性差异确定答案。由于交强险系属准公共物品,因而合理期待原则应作为评价规范正当性的核心原理,这决定了连带责任风险应被强制分配给保险人,即交强险保险人不得以任何方式排除连带责任;商业三责险的基本属性为私法上的合同,因而决定条款效力的核心原理为意思自治与对价平衡。与车辆损失险中的比例赔付条款不同,商业三责险中的此类条款并不违反对价平衡原则。但由于现行条款的表述存在歧义,因而依据不利解释规则,商业三责险保险人仍需承担连带责任。但这也同时意味着,其有通过明确条款含义来排除连带责任的空间。立法者若希望在未来实现对被保险人更高程度的保护,也应考虑消费者保险与商业保险的差异,在前者中设定包含连带责任的标准承保范围(最低保障标准),同时允许保险人相应提升保费。对于后者则宜给予更多的自治空间。
The core of the disputes about the effectiveness of proportional compensation clause in motor vehicle commercial liability insurance lies in the different attitudes towards whether the insurer can exclude the joint and several liability of the insured. This problem also exists in the compulsory traffic accident insurance. In this regard, we should distinguish the different attributes of all kinds of insurance to design rules. As compulsory traffic insurance is a quasi-public goods, the principle of reasonable expectation should be regarded as the core principle of evaluating the legitimacy of compulsory traffic insurance norms, which determines that joint and several liability risks should be compulsorily allocated to insurers, that is to say, the insurer of compulsory traffic insurance cannot exclude joint and several liability in any way;the basic attribute of commercial liability insurance is contracts in private law, so the core principle of determining the validity of terms is autonomy of will and balance of payment. Unlike the proportional clause in vehicle loss insurance, the proportional clause in commercial liability insurance does not violate the principle of payment balance. However, due to the ambiguity in the expression of the current clauses, according to the unfavorable interpretation rules, motor vehicle commercial liability insurers still have to bear joint and several liability. But at the same time, it also means that insurers can exclude joint and several liability by clear defining the meaning of the clause. If legislators want to achieve a higher degree of protection for the insured, they should also consider the differences between consumer insurance and commercial insurance, set standard coverage(minimum protection standard) in the former, and include joint and several liability in the coverage, while allowing the insurer to increase the premium accordingly. For the latter, more autonomous space should be given.
出处
《法律科学（西北政法大学学报）》
CSSCI
北大核心
2022年第3期123-136,共14页
Science of Law：Journal of Northwest University of Political Science and Law
关键词
机动车责任保险
比例赔付
合理期待原则
对价平衡原则
消费者保险法
automobile liability insurance
proportional compensation
principle of reasonable expectation
principle of balanced payment
consumer insurance law
