保险标的转让规范模式之检讨

保险标的转让对保险合同的影响,有"对人主义"与"对物主义"两模式。前者以"诚信"为核心价值,在逻辑上更为严密;后者在一定程度上忽视了保险利益的复合性,存在冲击民事法律基础理论、损失法律效益的缺陷。因旧《保险法》规定过于简陋而造成法律实践上的缺陷,新法则摒弃"对人"转而改用"对物"模式,但这并非理想的立法选择。理想选择是,坚持"对人"模式并辅以平衡双方当事人利益关系修正有关规则。

Analysis of the Normal Model of Insurance Subject Transfer

The impact on the contract caused by insurance subject transfer has ＂jus in rein＂ and ＂jus in personam＂ two models. The former takes honesty as the core value, and becomes more rigorous in logic; the latter is more closely in some complexity of insured interest, conflicts with the basic theory of civil law, and leads to the loss of law. Because the old Insurance Law is so humble that it has caused some practical flaws, the new rules determine to adapt the ＂in rem＂ model instead of the ＂in personam＂ model, but this is not ideal legislative choice. The best choice is to adhere to the＂ in personam ＂model and to balance the interest relationship between the parties concerned.