論保險經紀人之義務：受託義務與我國保險法修正之再檢討

A Study on Insurance Broker's Duty: A Reexamination of Fiduciary Duty and Recent Amendments of Taiwan Insurance Law

本文之目的，在於以我國近年關於保險經紀人義務之修正與爭議為中心，就英美法制與我國進行比較分析，並提出立法建議。我國2015年修正保險法，揭示保險經紀人之忠實義務、注意義務與相關義務。但此一修正是否妥當，仍有疑義。本文先釐清受託義務之內涵，再針對保險經紀與其他事務、代收保費、佣金與其他利益之揭露之三個議題，逐一探討是否成立受託義務，並分析相關規範是否妥適，再進一步重新建構我國保險經紀人之義務體系。本文認為一般之保險經紀事務並不足以構成受託關係，僅在特殊情況時方會成立。保險法第163條之忠實義務應限縮於利益衝突之避免且不等於受託義務。又保險經紀人代收保險費並不構成意定信託或信賴關係。如為強化對保險費或相關債權之保護，可考慮修法準用信託法關於信託財產相關之規定。再者，主動書面報告義務與佣金揭露義務，則應適度修正並增訂法律效果。就收受或有佣金或其他利益而言，亦不足以成立受託義務。本文認為保險經紀人仍可收取利益但應有揭露義務，如有違反應負賠償責任。但如保險經紀人可舉證符合一般交易慣例，則可不負賠償責任。就結論而言，本文發現英美法就保險經紀人義務認定甚為謹慎，實值得似有強化保險經紀人義務趨勢之我國注意。

This paper aims to comparatively analyze the duty of insurance broker in Anglo-American law and Taiwanese law, with the focus on recent modifications and controversies in Taiwan, and then proposes draft amendment for Taiwan insurance law. Taiwan modified insurance law in 2015 to declare insurance broker's duty of loyalty, the duty of care, and relevant duties. But such modification is still subject to suspicion. The analysis firstly explores the content of fiduciary duty, and then examines three critical issues, including insurance brokerage business, transferring of premium, as well as disclosure of commission and other benefits, and finally reorganizes the duty system of insurance broker. This paper argues that except for special circumstances the regular insurance brokerage is not sufficient to establish fiduciary relation. The duty of loyalty of Article 163 should be constrained to avoid conflict of interests, and is not equivalent to fiduciary duty. Also, transferring of premium by insurance broker does not create express trust or fiduciary relation. For the purpose of enhancing the protection of premium and relevant obligation, Taiwan may consider to modify insurance law to apply mutatis mutandis to the rules concerning trust property in trust law. The duty of providing a written analysis report as well as expressly advising the standard of remuneration shall be modified and remedies shall be added. For receiving contingent commission and other benefits, they are not sufficient to establish fiduciary duty, either. This study argues that an insurance broker may receive that benefit but have the duty to disclose it. Violation of this duty will generate liability of damage. However, an insurance broker can prove receiving that benefit is in accordance with general business custom to overrule that liability. In conclusion, this study finds that Anglo-American law is cautious with establishing duties of insurance broker, and this experience shall be considered for Taiwan, which seems to aggravate the duty of insurance broker.