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Notice of the Higher People's Court of Shanghai Municipality on Distributing the “Answers to Some Questions concerning the Trial of Cases Involving the Indemnity for Injuries from Road Traffic Accidents”
[Effective]
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上海市高级人民法院关于下发《关于审理道路交通事故损害赔偿案件若干问题的解答》的通知
[现行有效]
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【法宝引证码】
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Notice of the Higher People's Court of Shanghai Municipality on Distributing the “Answers to Some Questions concerning the Trial of Cases Involving the Indemnity for Injuries from Road Traffic Accidents”
(No. 21 [2005])
The No. 1 civil divisions of the No. 1 and No. 2 Intermediate People's Courts, the No. 1 civil divisions of all district or county courts, the No. 4 Civil Divisions of Pudong New Area Court and Huangpu Court, the Rapid Ruling Tribunal of Baoshan Court, all people's tribunals:
Since the “Road Traffic Safety Law of the People's Republic of China ” was promulgated and came into force, many new issues have arisen out the application of laws concerning the cases involving the indemnity for injuries from road traffic accidents. In order to timely regulate the application of laws concerning the cases involving indemnity for injuries from road traffic accidents, we have summed up relevant issues, and put forward some regulatory opinions for reference for the civil judges of each court. In case any question arises out of the application, please timely report them to the No. 1 Civil Division of the Higher Court.
December 31, 2005
Answers to Some Questions concerning the Trial of Cases Involving the Indemnity for Injuries from Road Traffic Accidents
| | 上海市高级人民法院关于下发《关于审理道路交通事故损害赔偿案件若干问题的解答》的通知
（沪高法民一[2005]21号）
第一、二中级人民法院民一庭，区县法院民一庭，浦东新区法院、黄浦法院民四庭，宝山法院速裁庭，各人民法庭：
《中华人民共和国道路交通安全法》颁布实施以来，道路交通事故损害赔偿案件的法律适用出现了诸多新问题。为及时规范道路交通事故损害赔偿案件的法律适用，我们归纳了相关问题，提出一些规范性意见，供各法院民事法官参照适用。适用中如有问题，请及时向高院民一庭反映。
二OO五年十二月三十一日
关于审理道路交通事故损害赔偿案件若干问题的解答
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I.In the disputes over road traffic accidents, how to determine the liability nature and litigation status of the insurance companies?
Answer: In terms of the nature of the liability of the insurance companies in the disputes over the indemnity for injuries incurred from traffic accidents, there are divergences in judicial practices on advance payment and direct liability. As for the litigation status, it is not uniformly determined in the current judicial practices (It is either listed as a joint defendant or a third person, or does not participate in the litigation).
We hold that, what the insurance company bears is the liability of paying insurance money, so the third person out of the insurance contract has no right to deem the insurance company as a defendant and to claim against it for the insurance money, and the litigation status of the insurance company shall be a third person. The ground is as follows: Road traffic accident is merely a ground for making indemnities under the insurance contract, thus what the insurance company bears is the liabilities under the insurance contract. Therefore, the litigation status of the insurance company depends on whether the petitioner has the right to request payment of the insurance money. The right to request payment of the insurance money is based on the Insurance Law and the insurance contract, so if neither the legal norms nor the insurance contract prescribes any other beneficiary, the insured shall certainly be the only obligee to request the insurance money. No one else has the right to directly request the insurance company to pay the insurance money, instead, he may only get the insurance money indirectly from the insured; the third party liability insurance is no exception, either. Paragraph 1 of Article 50 of the “Insurance Law” prescribes: “The insurer shall, according to the provisions of law or the contract, directly pay insurance money to the third party if injuries are caused by the insured who is covered by the liability insurance.” Hence, the insurance company may, according to this clause, directly pay the insurance money to the third party, but this clause does not entitle the third party to directly request the insurance company for payment. According to Articles 75 and 76 of the “Road Traffic Safety Law ”, it is only prescribed that the insurance company shall bear indemnity liabilities within the coverage of insurance liabilities, and do not entitle the third party to request payment of the insurance money. Moreover, presently, for the contracts on the third party liability insurance for motor vehicles, there is no provision in China on direct payment of the insurance money to the aggrieved third party; hence, unless otherwise agreed upon in the insurance contract in question, the aggrieved third party has no right to directly request the insurer for payment of the insurance money. In consideration of the nature of the third party liability insurance for motor vehicles, the said insurance is for the insured to transfer his risk of indemnity, thus the insurer's payment of the insurance money shall be based on the proportion of the liability of the insured for the accident and the amount of bearable indemnity. The settlement result of a dispute over indemnity of injuries for a traffic accident has an interest relationship with the insurance company. In order to prevent the third party from maliciously colluding with the insured, and to safeguard the lawful rights and interests of insurance companies, the insurance company may apply for taking part in the litigation as a third person or be notified by the people's court to do so.
．．．．．． | | 一、 在道路交通事故纠纷中，保险公司的责任性质与诉讼地位如何确定？
答：保险公司在交通事故损害赔偿纠纷中的责任性质，司法实践中存在垫付与直接责任的争议。至于其诉讼地位，当前司法实践亦做法不一（列为共同被告、列为第三人、不参加诉讼等做法均存在）。
我们认为，保险公司承担的是保险金的赔付责任，故保险合同外第三人无权以保险公司为被告诉请赔付保险金，保险公司的诉讼地位以第三人为宜。理由如下：道路交通事故仅系保险合同的理赔事由，故保险公司承担的是保险合同责任。因此，保险公司的诉讼地位取决于请求方是否享有保险金之赔付请求权。保险金赔付请求权系基于保险法与保险合同产生，如法律规范与保险合同均未规定另外受益人，被保险人应为当然且唯一的保险金请求权人，他人无权直接向保险公司请求给付保险金，只能从被保险人处间接获得；第三者责任保险亦不例外。《保险法》第五十条第一款规定：“保险人对责任保险的被保险人给第三者造成的损害，可以依照法律的规定或者合同的约定，直接向该第三者赔偿保险金。”故保险公司依此规定，可直接向第三者给付保险金，但该条款并未授予第三者直接向保险公司请求给付的权利。综观《道路交通安全法》第七十五条、第七十六条文意，亦只是规定保险公司应于保险责任范围之内承担赔偿责任，并未赋予第三者就保险金的赔付请求权。且我国目前的机动车第三者责任保险合同并无直接赔付保险金于受害第三者的规定；故除涉案保险合同另有特别约定外，受害第三者并无直接向保险人请求给付保险金的权利。鉴于机动车辆第三者责任保险的性质，系被保险人转嫁其赔偿风险的险种，故保险人保险金的赔付应建立在被保险人事故责任比例大小和应负赔偿责任多少的基础之上。交通事故损害赔偿纠纷的处理结果与保险公司具有利害关系。为防止第三者与被保险人恶意串通，保障保险公司的合法权益，保险公司可经申请或由人民法院通知作为第三人参加诉讼。
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