保險利益相關規範之研究─以我國法與英國法為比較核心

Abstract

作為為數眾多國家中保險契約之生效要件，保險利益制度向來有著兩個面象之重要目的：從消極面向切入，可防止賭博行為與道德危險之發生；從積極面向觀察，可貫徹保險契約填補損害之功能。在比較法上，或有視之為保險契約存續正當性之依據，並且不因財產保險或人身保險而有差異。 然而，在保險利益制度仍繼續存在之情況下，保險犯罪仍然是層出不窮；另一方面，亦有認為既有保險利益要件太過嚴苛，過於限制契約自由而主張應鬆綁現行制度之呼聲與批判。在我國法中，不論是損害保險或是非損害保險，均將保險利益制度纳入契約合法有效性之一環；惟我國作為保險契約法之繼受國，除了同樣遭遇保險利益制度存廢與否之根本質疑以外，具體地關於法律條文中要件之解讀、個案中保險利益之認定，在比較法研究上可發現有諸多相似爭議之處。 英國作為保險利益制度之發祥地，且我國保險利益要件之建立與詮釋，與英國之保險利益概念有許多共通特徵。是故，本文擬先回顧英國保險利益制度深厚的發展歷史，研究諸如1745年海事保險法(Marine Insurance Act 1745)及1774年人身保險法(Life Assurance Act 1774)等相關制定法及判例，掌握原先之規制對象與目的，釐清要件、後續效果具體內容，以及衍生之爭議與見解。其後再回到我國法之中，區分非損害保險與損害保險之體系架構，分別確立保險利益制度有無繼續存在之必要，重行定位保險利益功能，並構思如何與其他同樣防道德危險之制度，例如得被保險人同意之要件，使兩者得以適當銜接。進一步在要件解釋適用方面，借鏡相關見解並加以評析；在立法論方面，亦提出具體建議，作為我國法將來修正之參考。 保險利益制度有著悠久的歷史發展與正當目的，但也因為保險契約與時俱進的發展，而使舊有制度不斷受到質疑或挑戰。本文大膽地以為，純粹從存續或廢除之觀點，未必得以澄清制度之面貌，也未必得以回應現實中契約多樣變化。因此，不論是在制度存續或是要件解讀方面，本文擬在「契約自由、促進保險契約制度之發展」與「防範賭博行為與道德危險」之間，儘可能取得兩者之平衡點；並且在不同的對立見解中，試圖找出最能兼容共存的作法。

As an effective element of insurance contracts in many of the countries, there are two aspects of the important purpose about the doctrine of insurable interest: from the passive side, it is used to prevent moral hazard and distinguished insurance contracts from wagers; from the active side, it can ensure that the purpose of insurance contracts is to indemnify someone’s own damages. When it comes to the comparative law about the requirement, some of perspectives took it as a legitimacy reason of insurance contracts in both indemnity insurance and non-indemnity insurance. However, under the circumstances that requirement of insurable interest still exists, insurance crimes continue to occur. Moreover, some of perspectives pointed that the current requirement was too strict for various insurance contracts to develop and claimed that the requirement should be loosened. In our country, the Insurance Law regards possessing an insurable interest as an effective requirement, either in indemnity insurance or non-indemnity insurance. Therefore, with the adopted law from other countries, whether to keep it or not to keep it, is the question that we also encounter about the requirement. Meanwhile, while doing the research on concrete questions, such as the interpretation of the article and recognition of the insurable interest in cases, we can find there are similar controversies for both comparative law and our law. The United Kingdom (especially in the England and Wales) is where the doctrine of insurable interest originated. Additionally, many concepts of the requirement of insurable interest in our law are the same with the law in UK. First, I would like to flash back to the legislative history of insurable interest in UK. Second, I will try to look over the statute such as Marine Insurance Act 1745 and Life Assurance Act 1774 and other case law, and grasp the exact applied object and the purpose of the law, which can help us to clarify the following consequences and the derivative disputes. Third, after the research in the comparative law, I will divide indemnity insurance and non-indemnity insurance into two different parts to seek out the necessities and reasons of the requirement separately, in order to solve the problems in our Insurance Law. Also, I will also try to coordinate with other parallel requirements in our present law, like the consent of the life insured for example. Some of the associated points will be invited and criticized to understand our law. Finally, I will provide our parliament men with several suggestions about how to revise our law. The doctrine of insurable interest has both honorable goals and a well-established tradition in ages but it has also inevitably faced many queries and challenges. In my opinion, either abolishing or sustaining it simply could not solve all of the problems and could not handle with the emerging types of insurance contracts as well. Accordingly, to deal with all of the problems above properly, I will try my best to find out the way which might strike the balance between encouraging the development of insurance contract and preventing the moral hazard and gambling, and also the way containing most benefits from different opinions.