Comparative Law of Limitation of Actions in Insurance in England, Germany and Taiwan: A Step for Harmonization

英國、德國及台灣之保險法時效規範的比較研究:整合之趨向

本文試圖建立英美法系與大陸法系對於保險契約時效規範之最低程度的調和標準。作者選擇英國法、德國法和台灣法為比較對象,主要是考量英國與德國分別在英美法系與大陸法系於保險法制上之代表地位,以及台灣之混合法例特質。本文第一部分扼要敘述研究目的、研究範圍、研究方法,並對於時效制度加以簡介。第二到第四部分為主文,分別論述英國法、德國法與台灣法,並於論述過程,使用微觀之比較法,將保險契約義務區分為主給付義務(primary obligation)與從給付義務(secondary obligation),並將時效規定於保險契約之適用區分損失補償保險與定額給付保險,進而確認各法例差異之背景與理由。本文探求時效制度之源起與實益,並確認各法例制度之缺點及其解決方案,並據此找出調和的最佳方案,以擬訂本文第五部分之模範法例。

The aim of this work is to try to fix a minimum level of standard of harmonization between common law and civilian traditions with respect to the rules of limitation of actions in insurance. England and Germany have been chosen as comparators representing respectively a common law system and a civil law system, resting on distinct grounds, while Taiwan has been selected for her hybrid nature in the law of insurance contract. The reader's journey will begin with Chapter 1 Introduction, which sets out the author's objectives, the scope of the work, methodology and some brief observations on the function of the rules of limitation of actions, followed by the main text, that is, Chapters 2 to 4, dealing respectively with English law, German law and Taiwanese law. The first step in each chapter has been to identify convergence and divergence between the comparators by taking a microcomparison approach, while contractual obligations have been separated into primary obligation and secondary ones, and the rules of limitation of actions applied to the context of indemnity policy and contingency policy. The backgrounds sustaining those divergences and the values and origins of the legal institutions have also been looked at. More importantly, defects have been identified and remedies formed. By doing so, the best solution for harmonization, referred by the author as the Model Code, has been figured out or created in Chapter 5.