非保險業經營保險之修法及司法實務走向──聚焦保險要件於互助會案之具體操作

The Trend of Law Amendments and Judicial Practice for Non-Insurance Firms Operating an Insurance Business

法院就互助保險違反保險法第167條之案件，未曾有罪判決確定，然互助保險實為保險，法院之盲點在於誤解經營管理者需承擔危險，始符合危險承擔之要件，實則危險承擔本質是讓危險共同團體成員相互移轉危險， 此移轉除直接移轉外，亦可先移轉予經營管理者，再間接移轉，是不論有無移轉予經營管理人， 均已符合危險承擔之要件，經營管理人有無承擔危險，僅係經營保險之模式不同，故互助保險之經營管理者縱未承擔危險，然仍屬經營保險。

No rulings of guilty have been delivered by courts for mutual insurance firms violating Article 167 of the Insurance Act. But in effect, mutual insurance is insurance in nature. The courts mistakenly assume that mutual insurance operators need to take on risks so as to satisfy the conditions of risk assumption. However, the essence of risk assumption is allowing class members to transfer risks. The risks can be transferred directly, or in an indirect manner by firstly transferring them to operators and then onto others. Hence, whether the risks are transferred to the operators or not, the conditions of risk assumption are satisfied. Whether the operators assume risks is just a matter of different insurance management approaches. Accordingly, the operators are indeed running an insurance business even if they dont assume risks.