［摘要］当前，判断责任保险人是否应承担抗辩义务成为保险诉讼案件中的焦点问题。本文基于立法理论和具体实践，提出了通过据诉讼内容而定、据事实情况而定与合理化推测三项原则，对责任保险人是否承担抗辩义务进行判断。

［关键词］责任保险; 抗辩义务; 成立要件

一、责任保险人抗辩义务的内涵

责任保险人的抗辩义务是指当第三人受到损害时，以被保险人为诉讼对象要求损害赔偿，保险人就应该承担起维护被保险人利益、承担索赔抗辩的义务。［1］抗辩义务是责任保险人对被保险人所承担的一种基本义务，它不受保险给付义务制约。由于保险人在经济实力上具有得天独厚的优势，保险人利用抗辩义务势必大大减轻被保险人的抗辩任务。

(一) 承担抗辩义务

保险人代替被保险人实施抗辩行为，被保险人将全部的抗辩权利赋予保险人。在实施抗辩的过程中，一般都不可避免地选择抗辩律师作为诉讼代理，由于保险人对保险领域的法律业务非常了解和熟悉，保险人与被保险人相比，天然具有一定的律师资源，他们对律师的优缺点和行业能力特点了如指掌，能以更敏锐的眼光发现与选择抗辩能力超群、费用适中的律师。对于一般的抗辩任务，保险公司内设的法律机构或者法务人员，也可以实施抗辩行为。责任保险人承担抗辩义务后，被保险人就无须再在诉讼抗辩中绞尽脑汁。被保险人投保责任保险，除了抱有能在出险后获得金钱的补偿这个最为单一的心理期望外，也希望能在出险及后续处理过程中不受影响，能照常工作生活。而抗辩义务就是脱胎于这个心理预期，被保险人在购买保险时大多不愿接受出险后自己聘请律师的行为，对于普通被保险人而言，此过程可能令人身心俱疲。保险人承担抗辩义务也不意味着被保险人所有义务的全部转让，对于公平交易的默示义务不能转移，这是为了维护被保险人的利益。一旦保险人聘请的抗辩律师的失职行为伤害到被保险人，责任由保险人自身承担。当然，在保险人实施抗辩行为时，被保险人不能跃出圈外，还承担着全力协助保险人实施抗辩策略、提交证据协助、参与庭审和出证等合作义务。

(二) 承担抗辩费用

《中华人民共和国保险法》第六十六条指出: 责任保险的被保险人因给第三者造成损害的保险事故而被提起仲裁或者诉讼的，被保险人支付的仲裁或者诉讼费用以及其他必要的、合理的费用，除合同另有约定外，由保险人承担。［2］这里存在着合同另有约定的例外，从具体的司法实践分析，这种例外并不是凤毛麟角，特别是在机动车保险条款中，往往都有合同另外约定。从国外来看，涉及诉讼抗辩的费用往往不是一小笔，有些案例甚至是天文数字，即便是常见案例的抗辩费用，在额度上超过约定的保险金额的情况也普遍存在，基于这一点，要保险人全部承担抗辩费用在法理上存在不公平性，若加以强制，势必会提高保险费的数额，将风险转移到被保险人身上。因此，保险人承担的抗辩费用，从公正的角度来讲，应该是负担必要的费用。也就是说，在出险后，被保险人及时通知保险人，保险人对抗辩律师进行选择，这部分的抗辩费用支出，应由保险人承担。若是出险后，被保险人在通知保险人的同时自我选定和雇佣律师行使抗辩权利，只要被保险人提供的理由正当合理，抗辩费用理应由保险人承担。当然，保险人的抗辩义务是基于诚实信用而生的，是为了保护被保险人利益不受侵害，以及平衡保险人与被保险人之间的利益。若是保险人能证明自己不承担抗辩义务或认为抗辩理由不成立，保险人已经支出的抗辩费用，应该向被保险人索取。

二、保险人抗辩义务成立要件

在责任保险中，保险人履行抗辩义务是对被保险人莫大的帮助。通常认为，在第三人以诉讼方式提出赔偿请求时，保险人对被保险人负有抗辩义务，但这不是保险人承担抗辩义务的唯一条件，核心的要件是第三人诉讼的权利主张和责任保险的承保范围两者之间有法定的关系，具体而言，有三项原则可循。

(一) 据诉讼内容而定

从法理上分析，只要第三人( 通常是指受伤害者)要求赔偿请求的诉状内容在事实上含纳在责任保险条款的承保范围内，无论这种赔偿请求真实或是虚假、理由是否充足，保险人都应承担抗辩义务。也即，保险人是否要承担抗辩义务，据第三人起诉被保险人的具体内容和承保合同中的具体保险条款而定。若赔偿请求的确符合具体保险条款，保险人的抗辩义务就成立。这就是所谓的据诉状内容而定的原则，采取这个原则的理由有三: 一是此原则使操作过程简化，将诉状之外的因素排除掉，只需要将诉状主张和具体保险条款进行对比，就能对抗辩义务下定论; 二是明确了是否承担抗辩义务的时间点———在第三人提出赔偿之后，但此时又没有能证明请求赔偿与是否属于具体承保条款的事实证据; 三是在司法没有介入的前提下，保险人单方面对自身所承担的合同义务作出认定，司法机关显然不会认可的。而据诉状内容而定的原则据有明显的优点，在责任保险中，保险人履行抗辩义务能让被保险人受益。但这往往会走向另外一个极端，抗辩服务是为了保护被保险人的利益，若保险人的抗辩义务成为一种惯例模式，保险人承担的风险明显加大，后果自然不会良好。首先，加大了被保险人被诉的几率。保险公司与被保险人相比，保障性更高，这就可能导致第三人诉讼代表更愿意倾向将保险公司列为起诉目标。其次，即便是被保险人在保险人提供抗辩义务的过程中受惠，然而，由于在承保范围之外增加量抗辩次数和被诉讼次数，保险人的抗辩成本也水涨船高。保险公司极有可能将这部分的支出转化为投保成本，转嫁到被保险人身上，被保险者的保费必然上调。此外，保险抗辩利益纷争的几率也大大提升。因为保险人是否承担抗辩义务最终由法院依据上诉内容与责任保险条款是否形成关联而定，若无关联，则可以免除保险人的抗辩义务。对于保险人而言，为摆脱为被保险人提供抗辩的义务，总是想方设法证明诉讼内容与保险条款无关联; 但对于被保险人来说，情况必然相反，被保险人总是千方百计证明诉讼内容与承保条款相关联。

(二) 据事实情况而定

视诉讼内容规则来判断保险人是否应承担抗辩义务只是充分条件之一，诉讼内容与保险条件不相关联，并不意味着保险人可以不承担抗辩义务。据事实情况而定就是指保险人本应该知道的诉讼内容之外的相关事实，而当诉讼内容与未诉讼的事实情况有出入时，保险人就应该承担抗辩义务。第三者以伤害赔偿上诉后，保险人应该对诉状内容有全面的了解，开始调查与之有关联的各种信息，当调查的事实与保险条款构成关联，就必须担负起抗辩义务。采用据事实情况而定的原则是为了弥补据诉讼内容而定的原则存在的缺陷。第三人或其诉讼代理在起草诉状时，为了让自己在庭审阶段掌握主动权，诉讼用词往往偏于宽泛，期间更改诉讼请求的情况也可能出现。为此，保险人要在足够的诉讼内容中确定自身是否要承担抗辩义务。在这样的诉讼条件下，保险人就难以通过阅读诉讼内容明确第三人诉讼请求的事实，凭诉讼内容来判断是否担负抗辩义务显然对被保险人不利。这方面美国的经验值得借鉴，美国在保险实务上，责任保险合同一般约定，被保险人应该将索赔的事实通知保险人。［3］美国法院认为，在当前诉讼体系下，诉讼送达法院后，保险人不得以难以从诉讼内容中找到明确的抗辩义务为由而剥夺责任保险人的抗辩义务。为此，应该将这种单一的视诉讼内容为判断要件进行扩充，考虑具体事实，才能避免可能产生的错误判决。

(三) 据合理推测而定

当诉状内容或者事实情况都不能确定时，就可能导致保险人不承担抗辩义务，这对被保险人是极为不利的; 从法理角度而言，也是不合法的。所以，确定保险人有没有义务提供抗辩服务还应该综合考虑其他因素，只要确定诉讼内容与承保条款间存在某种合理推测性关联，就应当责成保险人承担抗辩义务。然而，此项原则虽然大大拓宽了保险人提供抗辩义务的概率，但却将须提供抗辩义务的要件模糊化。因为合理推测本身的准确性并不高，让保险人承担这种不确定的风险，将会导致保险人为本不应该承担的诉讼提供抗辩。在这样的情形下，保险人就会在设计保险条款上大做文章，如通过设立免责条款来免除抗辩义务，或者提高保费来保证收益。这方面西方的判例较多，可以借鉴: 例如在瓦特诉好事达保险公司案中，原告瓦特指责被保险人拉莫斯对其进行了故意伤害，向纽约州法院提起诉讼，要求拉莫斯给与赔偿，在庭审过程中，拉莫斯代理律师对瓦特的指控一一否认，表示保单内容中没有涵盖这种故意侵权责任，拉莫斯的保险人好事达保险公司当然是不能为此负责买单，也不可能为拉莫斯提供抗辩服务，但最终法院判决好事达保险公司败诉，赔偿瓦特1. 2 万美金。事后，拉莫斯将好事达保险公司诉至法院，指控好事达保险公司未履行抗辩义务。纽约州最高法院在庭审中指出，若是受到侵害的第三者所提出的赔偿请求经过合理推测，能涵盖在保单内容内，那么保险人就不能拒绝或者逃避为被保险人提供抗辩服务。这个判例在美国已经是作为一种标准而推行。然而，对于合理推测还存在着一些值得商榷的地方，比如，在责任确定的审理过程中，若发现责任源于承保范围之外的事实，保险人就不应承担提供抗辩的服务。综上，据诉讼内容而定最简单明了，但可能出现偏差; 据事实情况而定是对这种偏差的纠正，但事实认定过程复杂，时间跨度也很大; 为突破这两种原则带来的困境，据合理推测而定的原则应运而生。但如何对合理定性成为又一难题。为此，笔者认为，在具体的司法实践中，必须要纵览全局，全盘考虑，保险人是否承担抗辩义务应该以事实情况为基础，将诉讼内容作为重要的衡量标准，再结合限制性后的合理推测，从而更加科学合理地判定责任保险人是否要承担起抗辩义务。

三、结语

抗辩义务起源于西方国家，我国的保险法对责任保险人的抗辩义务并没有做出具体而清晰的规定，保险人没有义务为被保险人提供抗辩费用或为其抗辩。但是，自法理进化的角度而言，明确责任保险人的抗辩义务是大势所趋。从我国现状来看，此举尤为迫切，保险人与被保险人之间的力量相差悬殊，这导致保险人在设计保险合同时，始终处于有利位置，而弱化自身的抗辩义务。因此，在立法上，在明确保险人利益的同时，要最大限度保障被保险人的利益，将保险人承担抗辩义务的成立条件进一步细化、具体化，对保险人违反抗辩义务的法律后果作出明确规定。

［参考文献］

［1］宋志华． 保险法评论( 第五卷) ［M］． 北京: 法律出版社，2013．

［2］樊启荣． 保险法［M］． 北京: 北京大学出版社，2011．

［3］Malcolm A． Clarke． 保险合同法［M］． 何美欢，译，北京: 北京大学出版社，2002．

[Currently] determining whether the liability insurer should bear the defense obligation has become a focus issue in insurance litigation cases. Based on legislative theory and specific practice, this article proposes three principles: based on the content of the lawsuit, based on the facts, and reasonable speculation, to determine whether the liability insurer bears the defense obligation.

[Keywords] Liability insurance; Defense obligation; Establishment requirements

1、 The connotation of the defense obligation of the liability insurer

The defense obligation of a liability insurer refers to the obligation of the insurer to protect the interests of the insured and assume the defense of claims when a third party suffers damage and claims compensation with the insured as the object of litigation The defense obligation is a basic obligation that the liability insurer assumes towards the insured, and it is not subject to the obligation to pay insurance benefits. Due to the advantageous economic strength of the insurer, the use of defense obligations by the insurer is bound to greatly reduce the defense task of the insured.

（1） Assume defense obligations

The insurer replaces the insured in carrying out defense actions, and the insured grants all defense rights to the insurer. In the process of implementing defenses, it is generally inevitable to choose defense lawyers as litigation agents. Due to the insurer's strong understanding and familiarity with the legal business in the insurance field, compared to the insured, the insurer naturally has a certain amount of lawyer resources. They have a clear understanding of the strengths and weaknesses of lawyers and the characteristics of industry capabilities, and can discover and choose lawyers with superior defense capabilities and moderate costs with a sharper perspective. For general defense tasks, the legal institutions or legal personnel established within the insurance company can also implement defense actions. After the liability insurer assumes the defense obligation, the insured no longer needs to rack their brains in the litigation defense. The insured, when applying for liability insurance, not only has the single psychological expectation of receiving monetary compensation after the accident, but also hopes to be unaffected during the accident and subsequent processing, and to continue working and living as usual. The obligation to defend arises from this psychological expectation, and most insured individuals are unwilling to accept the act of hiring a lawyer after the accident when purchasing insurance. For ordinary insured individuals, this process may be physically and mentally exhausting. The insurer's assumption of defense obligations does not necessarily mean the complete transfer of all obligations of the insured, and the implied obligation of fair dealing cannot be transferred, in order to safeguard the interests of the insured. Once the insured is injured by the Malpractice of the defense lawyer employed by the insurer, the insurer shall bear the responsibility. Of course, when the insurer implements defense actions, the insured cannot jump out of the circle and also bears the obligation to fully assist the insurer in implementing defense strategies, submitting evidence to assist, participating in court hearings, and issuing evidence.

（2） Bear defense costs

Article 66 of the Insurance Law of the China points out that if the insured of liability insurance is brought for arbitration or litigation due to an insured event that causes damage to a third party, the insurer shall bear the arbitration or litigation costs and other necessary and reasonable costs paid by the insured, unless otherwise agreed in the contract 2] There are exceptions that are otherwise agreed upon in the contract. From the perspective of specific judicial practice, such exceptions are not uncommon, especially in motor vehicle insurance clauses where there are often separate agreements in the contract. From abroad, the costs involved in litigation defense are often not a small sum, and some cases are even astronomical. Even the defense costs of common cases are generally more than the agreed amount of insurance. Based on this, it is unfair in legal principle to require the insurer to bear all defense costs. If forced, it is bound to increase the amount of insurance premiums and transfer the risk to the insured. Therefore, from a fair perspective, the defense costs borne by the insurer should be the necessary costs. That is to say, after the accident, the insured shall promptly notify the insurer, and the insurer shall choose the defense lawyer. The defense expenses for this part shall be borne by the insurer. If, after the accident, the insured chooses and hires a lawyer to exercise the right of defense while notifying the insurer, as long as the reasons provided by the insured are legitimate and reasonable, the defense costs should be borne by the insurer. Of course, the insurer's defense obligation is based on honesty and credibility, in order to protect the interests of the insured from infringement and balance the interests between the insurer and the insured. If the insurer can prove that they do not assume the defense obligation or believe that the defense reason is not valid, the insurer should demand the defense fees already paid from the insured.

2、 Elements for Establishing the Obligation of Insurers to Defense

In liability insurance, the insurer's obligation to defend is of great help to the insured. It is generally believed that when a third party requests compensation through litigation, the insurer has a defense obligation towards the insured, but this is not the only condition for the insurer to assume the defense obligation. The core requirement is that there is a legal relationship between the claims of the third party litigation and the coverage of liability insurance. Specifically, there are three principles to follow.

（1） Based on the content of the lawsuit

From a legal perspective, as long as the content of the petition for compensation requested by a third party (usually the injured person) is actually included in the coverage of the liability insurance clause, regardless of whether the compensation request is true or false, and whether the reasons are sufficient, the insurer should bear the defense responsibility. That is to say, whether the insurer should bear the defense obligation depends on the specific content of the third-party lawsuit against the insured and the specific insurance clauses in the underwriting contract. If the claim for compensation does indeed comply with the specific insurance terms, the insurer's defense obligation is established. This is the so-called principle of determining based on the content of the complaint. There are three reasons for adopting this principle: firstly, this principle simplifies the operation process, excludes factors outside the complaint, and only needs to compare the claim of the complaint with specific insurance clauses to make a conclusion on the defense obligation; The second is to clarify the time point for assuming the defense obligation - after a third party claims compensation, but at this time there is no factual evidence to prove whether the claim for compensation belongs to a specific underwriting clause; Thirdly, without judicial intervention, the insurer unilaterally makes a determination of its contractual obligations, which is clearly not recognized by the judicial authorities. The principle based on the content of the complaint has obvious advantages. In liability insurance, the insurer's performance of the defense obligation can benefit the insured. But this often leads to the other extreme, where defense services are designed to protect the interests of the insured. If the insurer's defense obligations become a customary mode, the risk borne by the insurer will significantly increase, and the consequences will naturally not be good. Firstly, it increases the probability of the insured being sued. Compared to the insured, insurance companies have higher protection, which may lead to third-party litigation representatives being more willing to list insurance companies as litigation targets. Secondly, even if the insured benefits from the insurer's provision of defense obligations, the cost of defense for the insurer increases due to the increase in the number of defenses and lawsuits outside of the insurance coverage. Insurance companies are highly likely to convert this part of the expenditure into insurance costs and pass it on to the insured, resulting in an inevitable increase in the insured's premium. In addition, the probability of insurance defending interest disputes has greatly increased. Because whether the insurer bears the defense obligation is ultimately determined by the court based on whether the appeal content is related to the liability insurance terms. If there is no connection, the insurer's defense obligation can be exempted. For insurers, in order to break free from the obligation to provide defense for the insured, they always try to prove that the litigation content is not related to the insurance terms; But for the insured, the situation is inevitably the opposite, as they always try their best to prove that the litigation content is related to the underwriting terms.

（2） Based on the facts and circumstances

Judging whether the insurer should assume the defense obligation based on the rules of the litigation content is only one of the sufficient conditions. The fact that the litigation content is not related to the insurance conditions does not mean that the insurer may not assume the defense obligation. According to the factual situation, it refers to the relevant facts beyond the litigation content that the insurer should have known, and when there is a discrepancy between the litigation content and the non litigation facts, the insurer should bear the defense obligation. After a third party appeals for injury compensation, the insurer should have a comprehensive understanding of the content of the complaint and begin investigating various information related to it. When the facts of the investigation are related to the insurance terms, the insurer must assume the defense obligation. The adoption of the principle based on factual circumstances is to compensate for the shortcomings of the principle based on the content of the lawsuit. When a third party or their litigation representative drafts a lawsuit, in order to give themselves the initiative during the trial stage, the wording of the lawsuit is often too broad, and there may also be situations where the litigation request is changed during this period. To this end, the insurer needs to determine whether they have to assume the defense obligation in sufficient litigation content. Under such litigation conditions, it is difficult for the insurer to clarify the facts of third-party litigation claims by reading the litigation content. Judging whether to assume defense obligations based on the litigation content is obviously detrimental to the insured. The experience of the United States in this regard is worth learning from. In insurance practice, liability insurance contracts in the United States generally stipulate that the insured should notify the insurer of the fact of the claim 3) The List of courts of the United States held that under the current litigation system, after the litigation has reached the court, the insurer should not deprive the liability insurer of its defense obligation on the ground that it is difficult to find a clear defense obligation from the litigation content. Therefore, this single view of litigation content as a criterion for judgment should be expanded, taking into account specific facts in order to avoid possible erroneous judgments.

（3） Based on reasonable speculation

When the content of the complaint or the factual situation cannot be determined, it may lead to the insurer not bearing the defense obligation, which is extremely detrimental to the insured; From a legal perspective, it is also illegal. Therefore, determining whether the insurer has an obligation to provide defense services should also consider other factors comprehensively. As long as there is a reasonable speculative correlation between the litigation content and the underwriting terms, the insurer should be obligated to assume defense obligations. However, although this principle greatly expands the probability of insurers providing defense obligations, it blurs out the requirements for providing defense obligations. Because the accuracy of reasonable speculation itself is not high, allowing the insurer to bear this uncertain risk will lead to the insurer providing a defense for litigation that should not have been borne. In such a situation, the insurer will make a big fuss about designing insurance clauses, such as setting up exemption clauses to exempt defense obligations, or increasing premiums to ensure profits. There are many precedents in the West in this regard, which can be used for reference. For example, in the case of Watt v. Good State Insurance Company, the plaintiff Watt accused the insured Ramos of intentional harm and filed a lawsuit in a New York state court, demanding compensation from Ramos. During the trial, Ramos' lawyer denied Watt's accusations one by one, stating that the policy did not cover such intentional infringement liability, Of course, the insurer of Ramos, Haoda Insurance Company, cannot be responsible for paying for this and cannot provide defense services for Ramos. However, the court ultimately ruled that Haoda Insurance Company lost the lawsuit and compensated Watt 1 20000 US dollars. Afterwards, Ramos filed a lawsuit against Good State Insurance Company in court, accusing it of not fulfilling its defense obligations. The New York Supreme Court pointed out in the trial that if the claim made by the aggrieved third party can be included in the policy through reasonable speculation, then the insurer cannot refuse or evade providing defense services for the insured. This precedent has already been implemented as a standard in the United States. However, there are still some areas for reasonable speculation that are worth discussing. For example, in the process of determining liability, if it is found that the liability originates from facts outside the insurance coverage, the insurer should not be responsible for providing defense services. In summary, based on the content of the lawsuit, it is the simplest and most clear, but there may be deviations; Based on the facts, it is necessary to correct this deviation, but the process of determining the facts is complex and the time span is also large; In order to overcome the difficulties brought about by these two principles, principles based on reasonable speculation have emerged. But how to determine the reasonable nature has become another challenge. Therefore, the author believes that in specific judicial practice, it is necessary to comprehensively consider the overall situation, and whether the insurer should assume the defense obligation should be based on the factual situation, with the litigation content as an important measurement standard, and combined with reasonable speculation after limitations, in order to more scientifically and reasonably determine whether the liability insurer should assume the defense obligation.

3、 Conclusion

The defense obligation originated in Western countries, but China's insurance law does not provide specific and clear provisions for the defense obligation of the liability insurer. The insurer is not obligated to provide defense fees or defend for the insured. However, from the perspective of legal evolution, it is a trend to clarify the defense obligation of liability insurers. From the current situation in our country, this is particularly urgent. There is a significant difference in power between the insurer and the insured, which leads to the insurer always being in a favorable position when designing insurance contracts and weakening their defense obligations. Therefore, in legislation, while clarifying the interests of the insurer, it is necessary to maximize the protection of the interests of the insured, further refine and concretize the conditions for the insurer to assume defense obligations, and make clear provisions on the legal consequences of the insurer's breach of defense obligations.

[Reference]

Song Zhihua. Commentary on Insurance Law (Volume 5). Beijing: Law Press, 2013

Fan Qirong. Insurance Law. Beijing: Peking University Press, 2011

Malcolm A. Clarke. Insurance Contract Law. Translated by He Meihuan. Beijing: Peking University Press, 2002