保險人惡意不當理賠的責任建構

The Construction of insurer's Liability for Bad-faith and Unfair Claim Settlement

在理賠難這一保險行業頑疾日益凸顯的背景下，針對保險人在理賠中的惡意違約行為設置相應的責任規制，應當成為首要之策。多數保險消費者購買保險的目的是經由保險賠付獲得經濟保障以及內心安寧，保險人所承擔的不只是簡單賠付的結果性義務，而是一個兼具主觀善意和客觀誠信之理賠的過程性義務。保險人惡意責任構成的核心惡意不當理賠也應分別從主觀惡意與客觀不當兩個方面予以界定。在主觀方面應將保險人的機會主義傾向及其歸責性與我國現行的主觀過錯形態進行匹配；在客觀方面需要結合我國保險人不當理賠的實際類型來對理賠的不當性予以界定。既有的違約責任難以達成充分補償和有效懲罰的目標。為此，有必要將保險人的惡意不當理賠責任放置于違約責任與侵權責任交叉的中間地帶，採取以規制效果為核心的責任統合進路，保證索賠人就其履行利益和固有利益獲得全面賠償，確保懲罰性賠償發揮懲罰和威懾的功能。

Due to the increasingly prominent difficulty in insurance claims settlement, setting up the liability regulation for had faith breach of contract by insurers should be an important option to deal with this problem'' The purpose of most insurance consumers to buy insurance is to obtain economic security and peace of mind through insurance payment after an insurance accident occurs. What the insurer undertakes is not just a consequential obligation of simple payment, but a procedural obligation that has both the characteristics of subjective and objective good faith. Therefore, the core of insurer's liability for bad-faith and unfair claim settlement should be defined from both subjective and objective aspects. in the subjective aspect, we should match the opportunistic tendency and subjective imputation of the insurer with the current subjective fault pattern in our country so as to clarify the basic scope of insurer's subjective bad faith; in the objective aspect, we need to define the unreasonableness according to the actual types of the insurer's unjust claims settlement. The present liability for breach of contract is difficult to achieve the two goals of liability regulation: full compensation and effective punishment. it is necessary to place insurer's liability for bad-faith and unfair claim settlement in the overlapping area between liability for breach of contract and liability for tort, and adopt the approach of integration of liabilities centered on the regulation effect. Under this path, the claimant will be able to obtain full compensation for its performance and inherent benefits, and punitive damages can also serve as a punishment and deterrence.