摘要
如机动车自愿责任险约定"按份赔付",而被保险人与其他侵权行为人对受害第三人承担连带责任时,保险人承担被保险人的份额责任还是连带责任,这在理论上和实务中产生了很大争议。基于对连带责任的可保性、"按份赔付"条款的性质、保险人对第三人的抗辩、条款的订入与效力、代位追偿是否可行以及自愿责任险与强制三责险差异的分析,认为"按份赔付"条款不应受到否定,而该得到认可。
Where the ＂ indemnity in accordance with the portio＂ is promised in the voluntary compulsory liability of motor vehicles and the insurer takes the portio liability or the joint and several liabilities of the insured, the great dispute between theory and practice is produced. Based on the analyses of the insurability of joint and several liability, the nature of the ＂indemnity for several liability＂ clause, the defenses of the insurer to the third party victim, the incorporation of the clause into the insurance contract and its validity, the system of subrogation, as well as the differences between voluntary liability insurance and compulsory automobile liability insurance, this article argues that the effect of the ＂indemnity for several liability＂ clause shall be recognized instead of being denied.
出处
《中国法学》
CSSCI
北大核心
2016年第3期265-281,共17页
China Legal Science
