Insurability of Drunk Driving Liability in China - From the Perspective of Public Function of Liability Insurance -

서지정보

· 발행기관 : 중국지역학회
· 수록지 정보 : 중국지역연구 / 8권 / 1호 / 137 ~ 166페이지
· 저자명 : 리커징, 루오칸

초록

The insurability of drunken driving liability, that is, whether insurance companies should pay for traffic accidents caused by the insured who is a drunk driver, has always been a controversial issue in China. Current legislation is conflicting. Insurance Law of the People’s Republic of China 1995 insists a negative view through the amendments in 2002, 2005, and 2013. Article 22 of Regulation on Compulsory Traffic Accident Liability Insurance for Motor Vehicles 2006 specifically this issue is believed to be ambiguous and still did not respond it in the 2019 revision. the Supreme people's Court in 2012 enacted the Interpretation on Several Issues Concerning the Application of Law in the Trial of Cases on Compensation for Damage in Road Traffic Accidents, which has established a supportive position in Article 18. These conflicts have been bringing difficulties to Judges in judicial practice. On the other hand, Judges have been increasingly inclined to support the insurability of drunk driving liability in judicial cases since more than a decade ago, as confirmed by the results of 168 cases between 2006 and 2012 and 262 sample cases between 2013 and 2019. However, these cases also show that the conclusions reached by judges in the application of the same provision are not uniform. From the perspective of the public function of liability insurance, the insurability of drunk driving liability should be supported, which is also the main reason why more and more Judges have been becoming supporters. Compared with others, the public function of liability insurance means that it can provide more protection both for the insured and victims, as a result, it would be a financial approach in governing risks of the State. And the practice and theoretical research in the US have proved that it is the fundamental driving force for the rapid development of liability insurance, including settling the problem of drunk driving, and the decline of moral hazard is also essential for the developing process. As far as the dispute, we should balance the relationship between public function and the commercial nature of liability insurance in the development, improve Chinese law by learning from the reform achievements of the UK in recent years. Accordingly, this article is divided into four parts. First of all, conflicts in current Chinese legislation are sorted out; secondly, there comes an analysis of the supporting views by Judges in judicial cases; thirdly, a key argument is demonstrated, that is, the insurability of drunk driving risk should be affirmed from the perspective of the public function of liability insurance; finally, the focus is how to balance the public function and commercial nature of liability insurance.

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