Viewpoint | Analysis of the prerequisites for the continued implementation of liability insurance liability

Published:

2023-02-21

Basic case In 2021, the insured (application executor) company a enforced a case due to a private loan dispute with the executed person Guo mou. during the execution process, the outsider Cao mou claimed ownership of the property and garage located in a residential area of wenshang county under the name of the executed person Guo mou and filed an objection to the execution, resulting in the suspension of the execution of the case. on June 2, 2021, the insured (application executor) company a applied to the court for continued execution, and purchase continuing liability insurance from the insurance company. In the case of Cao's objection to the execution of the application, the court made a civil judgment on September 10, 2021, and the house involved in the case was not allowed to be executed. The intermediate court made a final judgment to reject the appeal and uphold the original judgment. On September 2, 2021, the court made an enforcement ruling that the ownership of the property in question under Guo's name belonged to the buyer, Fan. The ownership of the property involved is irreversible. Cao sued the court and requested the insurance company and the executor to compensate for his losses. Court decision results Defendant A Company shall compensate Cao for the loss of XX yuan within 10 days after the judgment comes into effect. The defendant's insurance company shall be liable to Cao for the debts determined in the first item of this judgment, within the scope of XX yuan for the part that cannot be performed in the legal enforcement of the property of defendant a company. Referee Points 1. In this case, Cao raised an objection to the execution of the property involved. During the trial of the outsider's execution of the objection, after Company A insured with a qualified insurance company, the insurance company issued a policy guarantee to the court, and the court continued to execute the property involved in the case in accordance with the law, and the property involved in the case has now been executed. According to the final judgment of the outsider's execution of the objection, Company A applied to continue to execute the house mistake involved in the case. Company A requested the court to continue to execute the mistake and caused losses to Cao, and should be liable for compensation for Cao's losses. 2. Judging from the guarantee letter of the continued execution of the liability insurance policy issued by the insurance company and the compensation conditions specified in the policy, the insurance company shall judge the economic compensation liability of the insured in the people's court for the loss of the continued execution error in accordance with the law. If the insured fails to make compensation, the insurance company shall be liable for compensation within the compensation limit according to the agreement of the insurance contract. Legal basis The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation of Several Issues in the Implementation Procedure Article 16 During the trial of a lawsuit against an outsider's objection to execution, the people's court shall not punish the subject matter of execution. Where the executor of the application requests the people's court to continue the execution and provide a corresponding guarantee, the people's court may grant permission. If an outsider requests the lifting of the seizure, seizure or freezing, or if there is an error in the application for execution, causing losses to the other party, compensation shall be made. Lawyer's opinion The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Extended reading Litigation property preservation liability insurance means that the applicant signs an insurance product contract with the insurance company (insurer), and the insurance company uses the insurance product as collateral to guarantee the property preservation behavior of the litigant (insured). When the insured applies for error and should bear the economic compensation liability according to law, the insurer shall be responsible for compensation or advance payment according to the agreed compensation limit, Then realize the purpose of litigation preservation guarantee. Continued enforcement liability insurance is an insurance that specifically provides service protection for the executor in an enforcement case to continue to enforce the liability. The applicant for enforcement shall provide a policy guarantee issued by an insurance company approved by the court, and after examination by the court, the outsider shall continue to dispose of the property without suspending the execution procedure at the same time as the execution objection or the execution objection, so as to ensure that the legitimate rights and interests of the parties are fulfilled in a timely manner. The insurance is a new type of insurance, which was first born in Beijing Haidian Court on May 24, 2019. This is Beijing's first and the first insurance industry to prevent delays in the implementation of judicial liability insurance products. Litigation property preservation liability insurance and continued execution liability insurance are both an insurance contract signed between the policyholder and the insurance company, and then the two sides establish an insurance contract relationship. They are insurance companies to the court to provide policies or letters of guarantee as proof of security, from the form of the policy guarantee, with some of the characteristics of the guarantee guarantee, but in essence is not a guarantee guarantee relationship. First, the insurer does not appear as a guarantor, and the nature of the insurance policy guarantee payment expenses belongs to insurance claims; second, the insurance contract of this kind of insurance generally has a large number of exemption clauses, which conflict with the promise of unconditional liability in the insurance policy guarantee and do not meet the basic requirements of guarantee guarantee; third, if the insurance policy guarantee is regarded as the guarantee provided by the insurance company, however, if the guarantee does not comply with the current law, because according to the law, the provision of the guarantee requires the authorization or resolution of the shareholders' meeting or the board of directors, but in reality, there are no relevant documents authorized or resolved by the shareholders' meeting or the board of directors in the relevant cases. The insurance liability of litigation property preservation liability insurance is that during the insurance period, if the respondent suffers losses due to the wrong application of the insured's litigation property preservation, the compensation liability borne by the insured according to the judgment of the court shall satisfy at the same time: 1. The property preservation respondent has indeed suffered losses; 2. There is a causal relationship between the loss of the property preservation respondent and the error of the insured's litigation preservation application; 3. The loss of the property preservation respondent was confirmed by the court judgment in force to confirm the specific amount of the loss. In this case, the insurer is responsible for compensation in accordance with the insurance contract. The insurance liability for the continued execution of liability insurance is that during the insurance period, due to the insured's error in requesting the people's court to continue the execution, causing losses to the person subject to execution, interested parties or outsiders, the people's court shall be in accordance with the People's Republic of China laws (excluding Hong Kong, Macao and Taiwan Regional laws, the same below) determine that the insured shall bear the economic compensation liability, and the insurer shall be responsible for compensation in accordance with the insurance contract. Continued enforcement of liability insurance In the policy guarantee submitted to the court, it is further clarified that the insurance liability is that during the enforcement process, the objector files an objection to the enforcement of the subject matter, resulting in the suspension of the enforcement. The insured applies to the people's court for continued enforcement and requests The people's court continues to execute the subject matter. If there is an error in the insured's request to the people's court to continue execution, causing losses to the objector, if the people's court decides in accordance with the law that the insured shall bear the economic compensation liability and the insured fails to pay compensation, the insurer shall be responsible for compensation in accordance with the insurance contract. Litigation property preservation liability insurance liability is based on the principle of attribution of fault liability of the insured, that is, the insurer's liability needs to have at the same time the subjective fault of the insured, the illegality of the insured's behavior, the existence of the fact of damage, the insured's illegal behavior and the damage consequences of the causal relationship between the four constituent elements. In practice, the case of the court after searching shows that the compensation for the liability of property preservation in litigation is based on the causal relationship between the insured's preservation behavior and the loss and the subjective intention or gross negligence of the insured to the property preservation as the elements and premise of the insurer's liability for damages. In the course of litigation, the parties submit an application for property preservation in accordance with the provisions of the Civil procedure Law, which is a manifestation of exercising their litigation rights granted by the law. It is not appropriate to simply judge whether the application is wrong on the basis of the final trial result of the case. The key is to see whether the insured has fulfilled the reasonable duty of care and whether the litigation request filed by the insured is legal and reasonable. The continued implementation of liability insurance does not reflect the premise of the principle of attribution of fault liability of the insured. Not only the terms of the insurance contract signed between the insurer and the insured do not reflect the principle of this rule, but after searching the court case, there is only one case involving the continued implementation of liability insurance at this stage, and the judgment made by the court is also based on the premise of execution error, regardless of whether the insured has subjective fault. Therefore, once the execution is wrong, the insured is very likely to bear the liability. In this case, is the insurer bound to bear the liability? According to the continued execution of the liability insurance clause and the continued execution of the liability insurance policy guarantee issued by the insurer to the court, the insurer must have the insurance liability at the same time: 1. The insured requests the court to continue the execution with errors, causing losses to the objector; 2. There should be an effective legal document to determine that the insured shall bear the economic compensation liability for the objector; 3. The insured fails to perform the compensation liability or fails to perform the compensation liability after the compensation liability after the execution procedure, at this time, the insurance talent is responsible for compensation within the compensation limit according to the insurance contract. Because the continued implementation of liability insurance is a new type of liability insurance, the time is short, the judicial jurisprudence is also very few, therefore, the liability insurance liability preconditions should be based on the principle of fault liability attribution, there is a lot of controversy, to be further discussed with the increase in the number of cases.</中华人民共和国民事诉讼法>

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