論保險法中的利得禁止原則

利得禁止原則與損失補償原則並非同義概念，不應混用。損失補償原則僅僅是財產保險合同當事人雙方合意內容的邏輯結果，要求的是保險人必須在約定的範圍內補償被保險人的損失。利得禁止原則則是對損失補償的界限予以規範，但絕非傳統觀點認為的限制補償，而是確定如何給予更進一步的、充分的補償。為此，其規範目的僅在於區別賭博及阻止道德風險，是一種政策性規定而非自然法原則，並不具有一般拘束力。但是，鑒於道德風險依然不容忽視，可將利得禁止原則分為廣義、狹義和最狹義三階，其中廣義、狹義利得禁止原則應具強行法規範性，而最狹義利得禁止原則僅為任意性規定。醫療費用保險是否可適用保險代位制度問題、重置價格保險中重置條件是否為效力要件問題等均可通過該三階論得到圓滿解決，財產定額保險這一形式據此原則上亦可有效成立，同時為今後不斷開發能夠化解社會經濟風險的新型險種提供了理論支撐。

The principle of prohibition of enrichment and the principle of compensation for losses are not synonymous and should not be conflated. The principle of compensation for losses is only the logical result of the agreement between the two parties of the property insurance contract, which requires the insurer to make up for the losses of the insured within the scope agreed upon. The principle of prohibition of enrichment regulates the boundaries of loss compensation, but it is not, as traditionally believed, a restriction on compensation. Instead, it clarifies how to provide further and adequate compensation. In this regard, its regulatory purpose is merely to distinguish gambling from insurance and to prevent moral hazards. It is a policy regulation rather than a principle of natural law and does not have general binding force. However, since moral hazard cannot be ignored, the principle of prohibition of enrichment can be divided into three levels: broad, narrow, and the narrowest sense. The principle of prohibition of enrichment in the broad and the narrow senses should be considered by nature as normative mandatory laws, while the narrowest sense should be only an optional rule. The issues such as whether insurance subrogation is applicable to medical expense insurance and whether the reinstatement condition in reinstatement value insurance is the validation essential can then be satisfactorily resolved under the three-level theory of prohibition of enrichment. Furthermore, on the premise of this three-level theory, property insurance of fixed sum can be validly tenable, while the exploitation of new varieties of insurance aimed at economic risk prevention can be theoretically justified.