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1、论文提要机动车和机动车保险与人们的生活息息相关 目前 我国借鉴外国的立法经验 正在不断完善机动车第三者责任保险的法律体系 并在 道路交通安全法 中明确了其为法定保险 但与之相关的机动车第三者责任强制保险条例尚在国务院的审议之中存在不少立法难点本文以民法总则 合同法及保险法的基本理论为指导 参考国内外有关责任保险第三者直接请求权的理论研究和立法实践 从我国国情出发 对于机动车责任保险第三者直接请求权的一些基本问题 如 机动车责任保险的概念以及其所具有的独特特征 机动车责任保险第三者的界定如何根据法律规定和保险合同的约定来确定第三者的范围 机动车责任保险第三者直接请求权的定义和国内外有关机动车责任
2、保险的立法现状和趋势 机动车责任保险第三者直接请求权的取得的四种方式 法定权利说 原始取得说 权利转移说和责任免脱给付说机动车责任保险第三者直接请求权存在的基础第三者直接请求权的扩张 机动车责任保险第三者行使直接请求权的内容 第三者直接请求权行使的条件 索赔的金额和当保险人恶意拒绝和解时应承担超额赔偿责任 机动车责任保险的责任范围和所适用的归责原则及对第三者直接请求权的影响 第三者直接请求权所遭遇的抗辩 赋予第三者直接请求权所带来的负面影响等进行了初步的探讨和分析 并在此基础上提出了有关的建议全文除引言和结语外共分为五个部分IAbstractMotor vehicle is one of th
3、e means of transport motivated by machine, and plays anactive role in social economy and daily life. In the meantime, as the means of riskmanagement of motor vehicle, the third party liability insurance also plays an important rolein social management. China constantly improves the legal system of t
4、he third party liabilityinsurance on the basis of using international experiences, and the Law of Traffic Safetyprovided that the third party liability insurance is the compulsory insurance.Motor vehicle third party liability insurance is one of the insurances that thecompensation liability of the i
5、nsured transferred to the insurer, namely the insured or thedriver authorized caused damage to the third party in course of driving, the insurer shall beresponsible for the compensation liability of the insured in accordance with relevantstipulations. The motor vehicle third party liability insuranc
6、e has its own characteristics. Itssubject-matter is the potential compensation liability of the insured, including the personaldamage and property damage of the third party. In Chinas stipulations, the scope of the thirdparty is narrow as compared with stipulations of other countries, the family mem
7、bers of theinsured, other persons and goods in the motor vehicle insured are not included in the scope ofthe insured party. It is not favorable to the third partys interest.The scope of motor vehicle third party liability insurance is the direct damage of thethird party, the indirect damage is not i
8、ncluded in it. The insured compensates for the damageof the third party in accordance with the insurance contract. Both the parties are restricted bythe insurance contract. Firstly, the insurer shall be responsible for the compensation damageof the injured party acknowledged by the public security b
9、ureau. Secondly, the exclusoryparts of the liability shall be excluded. In developed countries, the principle of no-faultliability is applicable to compulsory insurance. Its basis derives from liability of dangerousactivity and retaliation liability. The basis criterion of liability in newly issued
10、Traffic SafetyLaw is the principle of no-fault, and the principle of fault liability is applicable to the motorvehicles. We hold that it is an important progress in insurance law.IIThe third party beyond the contractual partied is the compensation object, so the legalstatus of the third party and it
11、s rights and obligations become the core of insurance contract.In accordance with the insurance law and the basis theory of motor vehicle liability insurance,when the motor vehicle liability insurance accident happens, the insured may pay for thedamage of the third party, and the third party ay also
12、 ask the insured to pay the insuredamount. This is the breakthrough of the relativism of contract. As the developed countriesprovides that the third party of liability insurance has the direct claim for the damage, wehold that Chinas law con also authorize the third party to have the direct claim fo
13、r thedamage caused.Chinas laws and statutes of motor vehicle third party liability insurance are notperfect, the regional stipulations lace compatibility. We hold that China shall draw lessonsfrom international experiences and issue Regulation on Motor vehicle Third Party LiabilityInsurance as soon
14、as possible on the basis of Traffic Safety Law and national conditions.China shall also gradually improve the legal system of motor vehicle conditions. China shallalso gradually improve the legal system of motor vehicle third party liability insurance inaccordance with the characteristics of compulsory insurance and the principle of commercialoperation ,non-profit, ensuring the lawful rights and interests of the injured parties.
