保险损害补偿原则研究——兼论我国保险合同立法分类之重构

保险损害补偿是保险合同法上诸多制度体系的一个基石。我国保险立法虽确立了该原则并初步构建了制度体系,但由于该原则在保险法理论研究上并未受到应有的重视,迄今学理解释上对该原则多“食而未化”,仍有诸多观念上的错误或认识上的误区。本文运用法解释学、法史学及比较法学等分析方法,从保险损害补偿的范畴分析入手,对该原则的内核、规范目的、适用范围及其例外等作了深入阐释,以正本清源。从保险损害补偿原则及其制度的适用角度来考量,主张摒弃我国现行保险法所采的“财产保险”与“人身保险”之“二分法”,代之以“补偿性保险”与“定额性保险”之“二分法”,以利于法律的正确适用。

A Research on the Doctrine of Insurance Damage

The principle of indemnity is the cornerstone of several policy systems in contract law for insurance. Though the legislation for insurance in China has established this principle and its initial policy system, what is lacked so far is a proper understanding of the principle in sense of a theoretical interpretation, which has led to some ideological errors or cognitive misunderstandings. For the theoretical research in insurance law does not attach enough importance to this principle. The methodology employed by the author of this article is using the theory of legal interpretation, legal history and comparative law to analyze the area of insurance indemnity and fully explain the essence of this principle, its regulating purpose, area of application and possible exceptions so as to thoroughly reform people's idea on this principle. The author also advocates in this article that the application of the Marxist law that "one divides into two" represented by "property insurance" and "life insurance" that is adopted by China's present insurance law should be replaced by that represented by "compensative insurance" and "quota insurance", which is advantageous to the correct application of law.