探索保險代位－藉比較研究建構模範法

摘要
本文之目的在於確定保險代位制度於英美法系與大陸法系調和之最低標準，以建構國際通用之模範法。居於特殊理由，作者選擇英格蘭與德國作為英美法系與大陸法系之代表性比較標的。至於選擇台灣，則居於其混合法例特質。
本文研究方法主要繫於比較標的法域間之「微比較法」(microcomparison approach)，藉以探求最佳解決方案。英格蘭法係英美法系之母，因其成熟、可預測之保險法制和於首都倫敦之活絡保險市場而享有崇高之聲譽。德國法為除法國法外大陸法系之代表，如同英格蘭法般對其法系家族具相當影響力。作者選擇其為英格蘭法之相對比較組，因為德國法在其法制上多與英格蘭法具高度之差異，深具比較性。就台灣法而言，台灣之保險法典與海商法典之海上保險章，於1929年立法之初係部份來自英格蘭法與德國法之混合，此混合法例之特質造就其成為於融合英美法與大陸法時尋求解決方案之重要資源。
關鍵字：保險契約、代位、債權讓與、委付、比較法
A Quest for Subrogation in Insurance:
To Formulate a Model Statute by Comparative Study
Abstract
The aim of this work is to fix a minimum level of standard of harmonization between common law and civilian traditions with respect to subrogation in insurance, in order to formulate a model statute for international follow-up. England and Germany have been chosen as comparators representing respectively common law system and civilian system, resting on distinctive grounds, while Taiwan has been selected for her hybrid nature in insurance contract law.
This work roots primarily on comparative law study between the comparators through microcomparison approach to enable to find out the best solution. English law, the mother of the common law families, has a good reputation for her mature and predictable insurance law system and for her dynamic insurance market situated in her capital, London. German law, apart from French law, is the representative system of civil law families, which probably have equal influence as English law does, which is selected as a opposite comparator, as German legal system is, in most of its attributes, diametrically opposed to common law system. As to Taiwanese law is concerned, the Taiwanese Insurance Code and the Marine Insurance Chapter in the Maritime Code, were the product of the partial mixture of German and English laws from their very initial legislation in 1929, the hybrid nature of which has made her a great source of solutions in harmonizing civil law and common law.
Keywords: insurance contract, subrogation, assignment, abandonment, comparative law