商業保證保險化之適法性探討

The Research of Lawfulness for Surety Bond Considered As Insurance

商業化找保衍生自保證制度，係源自英美兩國且流行於美國特有之商業擔保制度，其諸多特性與保險不同，本不宜予相提並論，惟其早期發展過程中意外地可由保險業經營並沿襲至今，詎因我國保險業不察其與保險之差異，率爾以保險型態引進，引起保險適法性之爭議多時。本文透過歷史追源、制度與特性分析，指出其保險化適法性有困難之處，並歸納出產生問題之根源，在於兩種契約主、客體有根本差異，以致於商業化找保難相容於保險法律規範。

Surety bond is a kind of corporate suretyship, which originated from England and existed in the United States since eighteenth century. Since its properties are obviously different from those of insurance, no one can discuss it in parallel with insurance. Due to historical accident, the insurers in the States were chartered to operate it with other insurance lines about one hundred and fifty years ago. Unfortunately, the insurers in Taiwan learned it from those of the States and nominally operate it as an insurance line, so called 'bond insurance'. Such an operation has been against Insurance Law of Taiwan when the insurers issue the policies. In this paper, we will figure out the points where the bond insurance is disqualified as an insurance line from the viewpoint of insurance law, through historical retrospect and analysis of system, properties of surety bond, and also insurance principles. Further, we also will point out the reasons that the surety bond is disqualified as an insurance basically from the differences of subject and object of a contract between bond and insurance.