作者：陈新律师      2016-12-28

新的《道路交通安全法》已于2004年5月1日开始实施，该法取代了原有《道路交通事故处理办法》对人们的生活产生了重大影响，新法体现了以人为本的思想，明确了生命权大于路权的准则。立法思想发生了从偏重保护机动车到保护行人的变化。归责原则从过去所采用的过错原则到现在的无过错原则。无疑是一大进步。对交通事故发生的认定，加重了处于强势地位的机动车一方的责任，加强保护处于弱势地位的行人和非机动车驾驶员利益，并增强了保险公司在交通事故中的责任。但在司法实践中也引发也许多新的争议，其中对于保险公司先前推出的第三者责任险的性质认定问题具有一定的代表性。

《道路交通安全法》第七十六条第一款的规定：“机动车发生交通事故造成人身伤亡、财产损失的，由保险公司在机动车第三者责任强制保险责任限额范围内予以赔偿。” 根据本款规定，机动车发生交通事故造成人身伤亡、财产损失的，保险公司在机动车第三者责任强制保险的责任限额内承担赔偿责任，而不论当事人是否有过错，可见保险公司在机动车第三者责任强制保险责任限额范围内是应承担无过错责任。这一新的归责原则，充分体现了以人为本的思想，给与每个公民更多的人文关怀。而我国《机动车辆第三者责任强制保险条例》仍处于立法阶段，现行与第三者责任有关的保险是“机动车辆第三者的责任保险”，而此险是否就是《道路交通安全法》中所规定的“第三者责任强制保险”呢？笔者认为持否定态度，两者有较大差异：

一、现行的“机动车第三者责任保险”属商业保险。

（一）由于目前国务院尚未颁布《机动车第三者责任强制保险条例》和《交通事故社会救助基金管理办法》这二个与《道路交通安全法》相配套的行政法规。由于法律的超前，相关行政法规的滞后，导致《道路交通安全法》第七十五、七十六条在审判实践中存在不少法律适用上的缺陷。目前，我国许多省份实行的机动车第三者责任保险，虽带有一定强制性，但该强制性仅体现在针对不投保第三者责任保险的机动车管理上的制裁，与《道路交通安全法》规定的第三者强制保险制度性质不同。因此，保险人与被保险人所签订的保险合同在根本上还是属于商业保险合同，同时，保险人与被保险人签订的合同条款也无规定保险公司可直接向第三者赔偿保险金。所以，未经被保险人同意，保险人不对受害人直接承担赔偿责任，而仅依据保险合同的约定向被保险人承担赔偿责任。因为现在没有第三者责任强制保险，而将第三者责任保险就等同第三者责任强制保险，有张冠李戴之嫌。

（二）从商业保险与强制保险二者的区别分析：(1)前者是自愿的；后者是强制的，即法定的。（2）前者的目的集合危险，分散损失；后者不仅包括前者的功能，而且更重要的是为了填补受害人的损害，使其得到快捷、公正的赔偿。（3）前者，保险公司以赢利为目的；后者则不以赢利为目的，在保费与赔付之间总体上应做到保本微利。（4）前者属于自愿的保险，故保险人是否决定承保、如何承保或承保的多少均有选择余地；后者则属于强制或法定保险，保险人不得拒绝投保人投保，即属于强制缔约。(5)前者属于商业保险，保险公司可以其他保险捆绑销售；后者则属于法定责任保险，保险公司不得与其他保险捆绑销售。（6）前者的保险金额与保费，原则上由当事人协商确定；后者则由保监会做出指导性规定并随着经济发展适时调整。《道路交通安全法》规定的机动车第三者强制保险作为一种特殊的经济补偿制度，有其内在的特征，其作用不仅是有一般保险的转移风险功能，更重要的是实现了对受害人提供快捷、及时的经济补偿，体现了以人为本思想，实行“无过错责任赔付”的方式保护受害人的利益。保险公司受国务院委托开办强制保险不以营利为目的，在保费与赔付之间总体做到收支平衡。且对于如何投保，保险金额确定多少均有强制性规定，其费率由保鉴会统一制定，作为一种法定的责任保险，不得与其它保险捆绑销售，国家对该保险减免保险公司强制保险且免营业税，参加强制保险车辆须加贴“保险标贴”等，而目前保险公司经营的机动车第三者强制保险并不具备上述特征，其应属于商业保险。

二、目前我国尚未实行机动车第三者强制保险制度。

（1）从法律层面上看，《道路交通安全法》规定，“国家实行机动车第三者强制责任保险制度，设立道路交通社会救助基金。具体办法由国务院规定。”由此可见，法律将制定该制度的权力赋予了国务院，由国务院以行政法规形式对此进行规定。显然，国务院早已着手《机动车第三者责任强制保险条例》的制定工作，现已公布了草案。这说明我国的机动车第三者责任强制保险制度尚未真正建立，同时，也说明保险公司现行的第三者保险并非《道路交通安全法》所指的机动车第三者责任强制保险制度，否则就无需进行新的立法。

（2）从事实层面上分析。随着交通事故的大量增加，由于肇事者经济能力所限，许多受害者得不到有效的救治与赔偿，为此，许多地方以通过地方性行政法规形式实行强制机动车第三者责任保险，当地公安、车管部门刚通过年审措施来保证有关规定的执行。但是，不能因此就认为，这种形式的保险就是《道路交通安全法》中所指的机动车第三者责任强制保险制度，二者从性质和监督手段上均有区别。

综上所述，笔者认为现行的“机动车辆第三者的责任保险”与《道路交通安全法》规定的“第三者责任强制保险”有着本质的区别，如将两者混为一谈，表面上似乎能够体现了《道路交通安全法》以人为本的立法思想，但事实上却是偏离了立法本意，造成法律适用的混乱。也侵害了保险公司的合法权益，加重了保险公司的负担，而这种风险最终会转嫁到投保人身上，而要解决上述问题，关键是国家在立法上构造一个完整的“第三者责任强制保险”体系，当务之急，是希望国务院尽快出台《机动车第三者责任强制保险条例》。

       　　　　　　　　　　　　　　　　　　　       供稿 陈新律师

Author: Lawyer Chen Xin, December 28, 2016

The new "Road Traffic Safety Law" has been implemented since May 1, 2004, replacing the original "Measures for Handling Road Traffic Accidents" and has had a significant impact on people's lives. The new law embodies the people-oriented concept and clarifies the principle that the right to life is greater than the right to road. The legislative ideology has shifted from emphasizing the protection of motor vehicles to protecting pedestrians. The principle of liability has evolved from the principle of fault adopted in the past to the principle of no fault now. Undoubtedly, it is a great progress. The recognition of traffic accidents increases the responsibility of the dominant motor vehicle party, strengthens the protection of the interests of pedestrians and non motor vehicle drivers in a disadvantaged position, and enhances the responsibility of insurance companies in traffic accidents. However, in judicial practice, there have also been many new controversies, among which the issue of determining the nature of third-party liability insurance previously introduced by insurance companies has a certain representativeness.

According to the first paragraph of Article 76 of the Road Traffic Safety Law, "If a traffic accident occurs on a motor vehicle that causes personal injury or property damage, the insurance company shall compensate within the scope of the compulsory third-party liability insurance liability limit of the motor vehicle." According to this paragraph, if a traffic accident occurs on a motor vehicle that causes personal injury or property damage, Insurance companies bear compensation liability within the liability limit of compulsory third-party liability insurance for motor vehicles, regardless of whether the parties are at fault. It can be seen that insurance companies should bear no fault liability within the liability limit of compulsory third-party liability insurance for motor vehicles. This new principle of accountability fully embodies the people-oriented ideology and provides more humanistic care to every citizen. However, China's "Regulations on Compulsory Third Party Liability Insurance for Motor Vehicles" are still in the legislative stage. The current insurance related to third party liability is "Motor Vehicle Third Party Liability Insurance". Is this insurance the "Third Party Liability Compulsory Insurance" stipulated in the "Road Traffic Safety Law"? The author believes that there is a significant difference between holding a negative attitude:

1、 The current "third party liability insurance for motor vehicles" belongs to commercial insurance.

（1） Due to the fact that the State Council has not yet promulgated the "Regulations on Compulsory Third Party Liability Insurance for Motor Vehicles" and the "Measures for the Administration of Social Assistance Funds for Traffic Accidents", two administrative regulations that are in line with the "Road Traffic Safety Law". Due to the advancement of laws and the lag of relevant administrative regulations, there are many defects in the application of laws in the trial practice of Articles 75 and 76 of the Road Traffic Safety Law. At present, many provinces in China have implemented third-party liability insurance for motor vehicles, although it has certain mandatory measures, this mandatory measure is only reflected in the sanctions on the management of motor vehicles that do not purchase third-party liability insurance, which is different from the nature of the third-party mandatory insurance system stipulated in the Road Traffic Safety Law. Therefore, the insurance contract signed between the insurer and the insured is fundamentally a commercial insurance contract, and at the same time, the contract terms signed between the insurer and the insured do not stipulate that the insurance company can directly compensate insurance benefits to third parties. Therefore, without the consent of the insured, the insurer shall not be directly liable for compensation to the victim, but shall only be liable for compensation to the insured in accordance with the provisions of the insurance contract. Because there is currently no compulsory third-party liability insurance, and equating third-party liability insurance with compulsory third-party liability insurance is somewhat misleading.

（2） Analyzing the difference between commercial insurance and compulsory insurance: (1) the former is voluntary; The latter is mandatory, i.e. statutory. (2) The purpose of the former is to gather danger and disperse losses; The latter not only includes the functions of the former, but more importantly, it is to compensate for the damage suffered by the victim and enable them to receive prompt and fair compensation. (3) The former is aimed at profit by insurance companies; The latter, on the other hand, should not aim for profit and should generally achieve a minimum profit between premiums and compensation. (4) The former belongs to voluntary insurance, so the insurer has a choice whether to underwrite, how to underwrite, or how much to underwrite; The latter belongs to compulsory or statutory insurance, and the insurer cannot refuse the policyholder to purchase insurance, which is a compulsory contract. (5) The former belongs to commercial insurance, and insurance companies can bundle and sell other insurances; The latter belongs to statutory liability insurance, and insurance companies are not allowed to bundle sales with other insurances. (6) The insurance amount and premium of the former are generally determined through consultation between the parties involved; The latter is guided by the China Insurance Regulatory Commission and adjusted in a timely manner with economic development. The compulsory third-party insurance for motor vehicles stipulated in the Road Traffic Safety Law, as a special economic compensation system, has its inherent characteristics. Its function is not only to transfer risks as a general insurance, but also to provide quick and timely economic compensation to victims, reflecting the people-oriented concept and implementing a "no fault liability compensation" approach to protect the interests of victims. Insurance companies are commissioned by the State Council to establish compulsory insurance for non-profit purposes, and generally achieve a balance between premiums and compensation payments. And there are mandatory regulations on how to purchase insurance and how much to determine the insurance amount. The premium rate is uniformly formulated by the insurance appraisal committee. As a statutory liability insurance, it cannot be bundled with other insurances for sale. The state reduces or exempts the compulsory insurance of insurance companies from business tax, and vehicles participating in compulsory insurance must be labeled with "insurance labels". However, the third-party compulsory insurance of motor vehicles operated by insurance companies currently does not have the above characteristics, It should belong to commercial insurance.

2、 At present, China has not implemented a compulsory third-party insurance system for motor vehicles.

(1) From a legal perspective, the Road Traffic Safety Law stipulates that "the state implements a compulsory third-party liability insurance system for motor vehicles and establishes a road traffic social assistance fund. The specific measures shall be formulated by the State Council." It can be seen that the law grants the power to formulate this system to the State Council, which shall regulate it in the form of administrative regulations. Obviously, the State Council has already started the formulation of the "Regulations on Compulsory Third Party Liability Insurance for Motor Vehicles" and has now announced the draft. This indicates that the compulsory third-party liability insurance system for motor vehicles in China has not yet been truly established, and also indicates that the current third-party insurance system for insurance companies is not the compulsory third-party liability insurance system for motor vehicles referred to in the Road Traffic Safety Law, otherwise there is no need for new legislation.

(2) Analyze from a factual perspective. With the significant increase in traffic accidents, many victims are unable to receive effective treatment and compensation due to the limited economic capacity of the perpetrators. Therefore, many places have implemented mandatory third-party liability insurance for motor vehicles through local administrative regulations. Local public security and vehicle management departments have just passed annual review measures to ensure the implementation of relevant regulations. However, it cannot be assumed that this form of insurance is the compulsory third-party liability insurance system for motor vehicles referred to in the Road Traffic Safety Law, and the two differ in nature and supervision methods.

In summary, the author believes that there is a fundamental difference between the current "third-party liability insurance for motor vehicles" and the "compulsory third-party liability insurance" stipulated in the Road Traffic Safety Law. If the two are confused, it may seem that they reflect the people-oriented legislative idea of the Road Traffic Safety Law on the surface, but in fact, it deviates from the original intention of the legislation and causes confusion in the application of the law. It also infringes on the legitimate rights and interests of insurance companies, increasing the burden on insurance companies, and this risk will ultimately be passed on to policyholders. To solve the above problems, the key is for the country to construct a complete "third-party liability compulsory insurance" system in legislation. The urgent task is to hope that the State Council will introduce the "Regulations on Compulsory Third Party Liability Insurance for Motor Vehicles" as soon as possible.

Contributed by Lawyer Chen Xin