论重复保险责任的非真正连带性

尽管重复保险的各保险人均对保险期间发生的保险事故向被保险人承担赔付保险金的责任,但是各保险人对被保险人的责任是相互独立的,被保险人有权按照投保人与各保险人订立的保险合同在保险金额的范围内选择各保险人进行索赔。基于公平原则,法律规定各保险人之间按比例分摊保险责任,但这种责任份额不得对抗被保险人。重复保险的责任既非连带责任,也非按份责任,而应当属于非真正连带责任。建议《保险法》作适当修改,以切实保障投保人、被保险人的正当权益。

A Discussion on Non-Authentic Joint and Several Liabilities in Double Insurance

Though each insurer of double insurance should pay insurance benefits to the insured for the occurrence of the insured event during the period of validity of insurance contracts, the liability of each insurer to the insured is mutually independent and the insured is entitled to make a claim for indemnity of insurance benefits to each insurer within the scope of the sum insured according to the insurance contracts concluded respectively by the applicant and each insurer. Based on the principle of fairness, legislation provides that each insurer undertakes the insurance liability in proportion. However, each insurer is forbidden to use this kind of proportional liability to set up defenses against the insured. The liability of double insurance is neither the joint and several liabilities nor the liability on the basis of portion. It belongs to non-authentic joint and several liabilities. This paper suggests that the insurance law be amended properly so as to really protect the legitimate rights and interests of the applicant and the insured.