According to Article 2 of the Measures for the Administration of Health Insurance issued by the China Insurance Regulatory Commission, medical expense insurance, referred to as medical insurance, refers to the insurance that pays the insurance premium on the condition that the medical behavior agreed in the insurance contract occurs, and provides protection for the medical expenses incurred by the insured in the medical process. For a long time, due to the unclear grasp of its nature, whether the principle of loss compensation can be applied to medical expense insurance has been puzzling the theoretical and judicial circles. Although scholars have developed new theories of "compensatory life insurance" and "intermediate insurance" at present, which have temporarily solved the problem, when we further ask what the insured object of medical expense insurance is, the preconceived personal attribute and the property attribute of the compensated object will make the logical premise of these theories contradict. In fact, a careful analysis of the relationship between medical expenses and personal injury facts shows that medical expenses insurance has obvious similarities with liability insurance in logical structure. Therefore, we can try to analyze the relevant theories of medical expense insurance from a new angle, so as to clarify the legal attributes of this kind of insurance and truly solve the application problem of the principle of loss compensation.
First, the traditional understanding of the legal nature of medical expense insurance
(A) preconceived personal attributes
According to the traditional insurance theory, medical expense insurance is usually considered as a kind of health insurance. The so-called health insurance refers to the insurance that the insurer is responsible for paying the insured amount when the insured is sick, gives birth and causes disability or death. It should be noted that in addition to illness and childbirth, medical behavior may also occur because of dealing with accidental injuries or treating concurrent diseases caused by accidental injuries. The medical expenses incurred in the latter case are generally considered to be covered by accident insurance. In other words, medical expense insurance also exists under the category of accidental injury insurance. According to the first paragraph of Article 95 of the Insurance Law, "Personal insurance business includes life insurance, health insurance, accident insurance and other insurance businesses", so whether medical expenses insurance belongs to health insurance or accident insurance, it is considered as a kind of personal insurance, and of course it is endowed with personal attributes.
(B) the dilemma caused by the application of the principle of loss compensation
Because the theoretical research of insurance law in China is relatively weak, people "position the application scope of insurance compensation principle in property insurance, and absolutely exclude the application of life insurance". The reason is that the purpose of life insurance is to protect the life and physical integrity of the insured from infringement. Because the person is priceless, it is impossible to determine the amount of loss in essence, so the principle of compensation for loss does not apply to life insurance. Therefore, medical expenses insurance, which is considered as personal property, is not bound by the rules such as prohibition of excess insurance, prohibition of double insurance and insurer's right of subrogation derived from the principle of loss compensation. However, from the perspective of insurance practice, the situation is not so simple.
In fact, as a rule, major insurance companies will stipulate the application of the principle of loss compensation in their medical expense insurance products. For example, Taikang Life Insurance has specially set up a section on "Compensation Principles" in its Taikang Supplementary E-Shun Accidental Injury Medical Insurance Clause, which stipulates: "When we pay insurance money to the insured, the medical expenses incurred by the insured within the scope of this supplementary contract have been compensated by other means, and the sum of the compensation amount from other means and the accidental medical compensation amount paid by us according to this supplementary contract exceeds the actual medical expenses incurred by the insured. We will pay accidental medical compensation to the beneficiary according to the balance of the actual medical expenses incurred by the insured after deducting the compensation amount from other channels, that is, the sum of all compensation amounts obtained from various channels including this supplementary contract shall not exceed the actual medical expenses incurred by the insured. " For another example, China Ping An limited the insurance liability in its Ping An Additional Accidental Injury Medical Insurance Clause: "If the insured has obtained compensation through other means, the insurer will only bear the insurance liability for the remaining reasonable medical expenses."
The theoretical root of the conventional principle of "agreed compensation" lies in that, for insurance companies, compared with life insurance actuaries who attach importance to time factors and the time value of capital use, the actuarial model and rate determination principle of medical expense insurance (especially "short-term" insurance) are more similar to non-life insurance actuaries who pay attention to risk measurement, loss frequency and severity. Therefore, the management mode of medical expense insurance is actually closer to property insurance. It is worth mentioning that this is also considered to be one of the reasons why legislators added the following contents to the restrictive provisions on the business scope of insurance companies when they revised the Insurance Law in 2002: "Insurance companies engaged in property insurance business can engage in short-term health insurance business and accidental injury insurance business with the approval of insurance supervision and management institutions."
Therefore, in this context, once a medical expense insurance dispute involving double insurance, insurer's right of subrogation and other issues related to the application of the principle of loss compensation occurs, the contradiction between theory and practice will naturally lead to confusion in judicial practice, resulting in some cases with similar basic facts, but the final judgment results may be completely opposite. In order to solve this problem, the theoretical circle of insurance law tries to make a new explanation on the nature of medical expense insurance.
New Understanding-Compensation and Neutrality
With the deepening of related research, the academic circles have gradually formed a new understanding that the applicable object of the principle of loss compensation should not be determined solely by the nature of the subject matter of insurance (property or person), but should depend on whether the loss compensated by insurance is concrete or abstract. The so-called specific loss refers to the loss that can be objectively measured by money; Abstract loss refers to the loss that cannot be measured by money objectively. Because the purpose of the principle of loss compensation is to prevent the insured from getting more insurance benefits than his property losses and forming unjust enrichment, the principle of loss compensation should be applied to the insurance that compensates for specific losses. However, the insurance to compensate for abstract losses cannot be applied because the amount of losses cannot be measured objectively. Then, scholars point out that the object of life insurance compensation is not limited to abstract losses, but specific losses can also be the content of life insurance compensation. For example, Professor Wen Shiyang believes that "abstract damage in personal insurance should refer to death and disability, that is, people's life and health cannot be measured by monetary value, so for the death and disability part of life insurance, health insurance and accident insurance, only fixed compensation can be implemented, and there are no restrictions on over-insurance and repeated insurance; Medical expenses are not abstract personal injuries, but concrete property losses. Therefore, the application of the principle of damages should not be ruled out. "
Therefore, under the influence of this understanding, academic circles have formed some new views on the nature of medical expense insurance, which can be summarized into two main types:
First of all, some scholars think that medical expense insurance is a kind of "compensatory life insurance". From the perspective of insurance classification, they think that in addition to the "subject matter of insurance" as the classification standard, insurance can also be divided into compensation insurance and quota insurance according to the different modes of insurance payment. The so-called compensation insurance, also known as "assessment insurance", means that when an insurance accident occurs, the insurer evaluates its actual loss and pays the insurance premium. The so-called fixed insurance, also known as "payment insurance", means that both parties to the contract agree on a certain amount of insurance in advance, and when an insurance accident occurs, the insurer shall bear the responsibility for payment according to the agreement. It must be noted that, on the one hand, property and people, compensation and quota are closely related in extension, that is, property insurance is compensation insurance, while life insurance is generally quota insurance, but because of their completely different connotations and classification standards, they cannot be confused. On the other hand, the fundamental reason for the different insurance payment modes lies in the different nature of the damages compensated by different types of insurance. Specifically, compensation insurance compensates for concrete damage, while fixed compensation insurance compensates for abstract damage. Because the part of life insurance involving medical expenses is considered as compensation for specific damage, the medical expenses insurance corresponding to this part of specific damage should be considered as compensatory life insurance. In fact, this view has been reflected in China's current legislation. For example, Article 4 of the Measures for the Administration of Health Insurance stipulates: "Medical insurance is divided into cost compensation medical insurance and fixed payment medical insurance according to the nature of insurance payment. Cost-compensated medical insurance refers to medical insurance that determines the amount of insurance money according to the actual medical expenses incurred by the insured and the agreed standards. Fixed payment medical insurance refers to medical insurance that pays insurance benefits according to the agreed amount. The payment amount of cost compensation medical insurance shall not exceed the amount of medical expenses actually incurred by the insured. "
In addition, some scholars further argue that medical expense insurance is an "intermediate insurance" independent of the third field of life insurance and property insurance. From the nature of insurance, this view holds that medical expenses insurance not only has the property of personal insurance with human body and life as the insurance object, but also has the property insurance property with the purpose of compensating the insured for the expenses (specific losses) that can be calculated in money because of treating diseases or injuries. In short, medical expense insurance, as an independent insurance form between traditional life insurance and property insurance, is called "intermediate insurance" (or "third insurance"). This view has actually been reflected in the theoretical development and legislative practice abroad. For example, in Japanese insurance law, insurance is divided into three categories. Among them, "personal insurance" is a "personal insurance" with life and death as the target, and "damage insurance" is a "property insurance" with damage other than life and death as the target. Because personal injury is related to both life insurance and damage insurance, but its nature is different from both, Japanese insurance industry divides injury-related insurance (namely health insurance and accidental injury insurance) into separate fields and applies the principle of independence, which is called "the third field insurance". To sum up, whether medical expense insurance is used as compensatory life insurance or intermediate insurance, it can be included in the scope of application of loss compensation principle, thus solving the application problems of rules such as double insurance and insurer's subrogation. Admittedly, from a pragmatic point of view, both views are very successful. However, once we take the scientific construction of the theoretical system of insurance law as the purpose and carefully examine the theoretical logic behind these viewpoints, some problems that cannot be ignored will surface.
Second, the traditional understanding of the problems and new perspectives
(A) the mystery of the nature of the subject matter of medical expenses insurance
It is not difficult to find that both "compensatory life insurance" and "intermediate insurance" are based on the premise that "medical expense insurance has personal attributes". The only difference between the two is that the former thinks that personal nature and compensation go hand in hand, while the latter combines personal nature and property to form an independent "intermediate". However, as mentioned at the beginning of this paper, the reason why medical expense insurance is recognized as a personal attribute is actually based on such a simple logical reasoning: medical expense insurance is a kind of health insurance, and health insurance is a kind of life insurance, so medical expense insurance is life insurance. In theory, life insurance and property insurance are divided according to the subject matter of insurance, so medical expenses insurance, as a kind of life insurance, seems to have personal attributes. However, in fact, when we try to determine what the subject matter of insurance is, the problem arises.
According to the theory of traditional insurance law, the subject matter of insurance refers to the life, body or property of the insured and its related interests. It is the material carrier to confirm the insurable interest in the insurance contract and the object of the damage caused by the insurance accident. From the insured's point of view, the subject matter of insurance is the object he seeks insurance protection, while for the insurer, the subject matter of insurance is the object he provides insurance protection. Now let's review the definition of medical expense insurance. Medical expense insurance is an insurance that provides protection for the insured's medical expenses during medical treatment. From the perspective of semantic analysis, it is not difficult to draw a conclusion that the direct object of the insured seeking insurance protection and the direct object of the insurer providing insurance protection in medical expense insurance is actually the expenditure of medical expenses, which is essentially a pure property. In other words, from the definition of the subject matter of insurance, the subject matter of medical expense insurance should be property.
For this contradiction, the solution of "compensatory" or "intermediate" theory is to admit that medical expenses are one of the many losses caused by personal injury. Specifically, when a disease or accidental injury occurs, the person who is the subject of insurance will suffer abstract losses such as pain and unhealthy state caused by the disease or injury on the one hand, and specific losses such as various medical expenses on the other hand. So from this perspective, providing protection for medical expenses is to provide protection for specific losses caused by personal injury, and ultimately to protect people. Therefore, the identification of the insured object of medical expense insurance as a person can also conform to the definition of the concept of the insured object.
If so, new problems come again. Can the specific loss of "medical expenses" be identified as the loss caused by personal injury?
(2) Analysis of the losses caused by the fact of personal injury
Obviously, the logical premise of the above viewpoint is that medical expenses are specific losses caused by personal injury. In order to find out the problem, we need to analyze the losses caused by personal injury. From the objective facts, when accidents such as diseases and accidental injuries occur, the direct losses that the parties will bear are mainly manifested in two aspects: first, the most intuitive pain, inconvenience and physical disability caused by personal injury, that is, the current pure personal loss; Second, it is the personal injury that devalues the life value of the parties. The so-called human life value (HLV) is a measure of individual's future actual income and service value. It is a capitalized value of personal future net income after deducting human self-reproduction costs such as food, clothing, housing and transportation. Professor Huebner, a famous insurance expert, believes that a person has two kinds of property: one is the property he has acquired and the other is the potential property. The former refers to the material property that a person already owns; The latter refers to a person's monetary value as an economic force reflecting economic energy. The so-called economic energy means that a person has the ability to earn more income than he needs to survive. If there is enough time, this energy can accumulate surplus and make it a real property. Therefore, when a person suffers personal injury due to illness or accident, his ability to obtain subsequent income may be suppressed, in other words, the value of life is devalued.
However, losses such as "medical expenses" are caused by the parties taking further rescue measures such as treatment and hospitalization after personal injury, rather than naturally occurring with the appearance of personal injury facts like the above two kinds of losses. And it needs to be emphasized that, unlike the above two kinds of losses, these specific losses are not necessarily due to the fact of personal injury. There is a simple reason. If someone is sick or accidentally injured, but he doesn't go to the hospital or receive treatment through other channels for some reason (he doesn't have enough financial resources, or maybe he just doesn't want to), then there will naturally be no specific losses. Logically speaking, personal injury is only a necessary condition for the occurrence of medical expenses, not a sufficient condition. The former alone cannot produce the latter. Therefore, it is inappropriate to interpret "medical expenses" as "losses caused by the fact of personal injury" or so-called "indirect losses caused by personal injury". So where does this misunderstanding come from?
(3) External coercive factors that link the fact of personal injury with medical expenses From an empirical point of view, the parties suffered personal injury due to diseases, accidents and other reasons, so they were treated and rescued, which in turn led to medical expenses. This series of processes are so closely linked that it seems inevitable for people to include them. But as mentioned above, logically speaking, the fact of personal injury alone cannot directly lead to the occurrence of medical expenses. In fact, the reason for this contradiction is that people ignore that there are some external coercive factors at work between the fact of personal injury and medical expenses.
First of all, when the person who suffered personal injury and the person who spent medical expenses are the same person, it is actually the victim's "survival instinct" that links the fact of personal injury with medical expenses. Specifically, when someone suffers personal injury due to illness or accident, if no rescue measures are taken, the losses borne will naturally be limited to the pain and suffering directly caused by the fact of personal injury and the depreciation of life value, and the result may be the aggravation of personal injury or even the loss of life. However, people's survival instinct often does not allow this to happen. Individuals with the will to survive will choose to take rescue measures such as treatment and hospitalization after encountering major diseases or accidents to reduce the direct losses caused by personal injuries. In other words, "survival instinct" is the key to medical expenses. Of course, there are cases where survival instinct fails, such as suicide. In this case, the role of some other factors (often psychological) exceeds the compulsion of survival instinct, so that the parties will not only take various protection and rescue measures to reduce personal injury (and then generate various specific expenses), but will actively pursue and let personal injury happen or even aggravate. In fact, this point also shows from the opposite side that only under the compulsion of survival instinct can the fact of personal injury produce the specific loss of medical expenses.
In addition, in reality, there are cases where the person who bears the damage and the person who spends the medical expenses are not the same person. In the case of introducing medical expenses insurance, according to the traditional theory, this is actually a situation in which the insured and the insured are separated, which is the most common among individuals with relatives. For example, when a child suffers personal injury due to illness or accident, parents are often the one who pays the medical expenses. At this time, because it is not oneself who suffers personal injury directly, the role of survival instinct has not been triggered for parents, so what factors prompted parents to bear the medical expenses? The answer is "kinship". Imagine, when you walk into the hospital and see countless patients who are suffering from diseases but have nothing to do with you, will you pay for their medical expenses one by one? It is the fact that children (others) suffer personal injury under the compulsion of kinship that will lead to the loss of parents' (own) medical expenses. What needs to be added is that the compulsory effect of this kinship may come from two aspects, one is the constraint of de facto family ethics and conscience morality, and the other is the constraint of legal obligation to help relatives.
To sum up, the fact of personal injury itself will not cause specific losses such as medical expenses, but under the influence of external coercive factors such as survival instinct and kinship, the parties themselves or others will have to bear medical expenses when they suffer personal injuries, thus forming specific losses. Therefore, since the loss of medical expenses is not caused by the fact of personal injury, the defense of the personal attribute of medical expenses insurance with the theory of "compensation" and "intertextuality" has lost its logical premise and collapsed. So, is medical expense insurance property insurance or life insurance? What is the relationship between the subject matter of insurance and "medical expenses"? In fact, when we turn our attention to another traditional type of insurance, the answer to the question will come to mind.
Medical expenses insurance based on "factual compulsion"
We look at the situation that a specific subject needs to bear legal responsibility from another angle. Specifically, according to the law, once a certain damage event occurs (this event may involve the positive behavior of a specific subject, such as infringing on others; Can not be involved, such as employer's liability), the specific subject must bear the relevant liability for damages. In this case, we can observe two kinds of losses: one is the loss directly caused by the damage incident to the victim (such as the damage suffered by the infringed, the damage suffered by the employees, etc.). ); The second is the loss caused by the liability of a specific subject. It should be noted that this loss of a specific subject is not directly caused by the damage event itself. However, due to the coercive force of laws and regulations, the specific subject should bear the corresponding liability for damages when damage occurs. On the other hand, if the law does not stipulate that a specific subject needs to bear relevant responsibilities, then the specific subject naturally does not have to pay for the losses caused by the damage incident. It is not difficult to see that the relationship between damage events and liability for compensation is completely consistent in logical structure with the relationship between personal injury facts and medical expenses analyzed above. It's just that one of the reasons for forcing a specific subject to bear the corresponding specific losses (compensation liability or medical expenses) is legal coercion (laws and regulations) and the other is factual coercion (survival instinct, blood relationship).
As we all know, in order to spread the risk of legal liability, the liability insurance system came into being. The function of liability insurance is to "compensate the insured or the insured for the damage caused by law", and "liability insurance is a kind of property insurance. However, the subject matter of insurance is neither a person nor tangible movable or immovable property, but the responsibility of the applicant or the insured to a third party according to law. " Therefore, considering the definition, purpose and actual coercive factors of medical expense insurance, it can be put forward that medical expense insurance is actually an insurance to compensate the insured for the losses when he has to bear the relevant medical expenses due to the existence of factual coercive factors. The insured object is not personal or health, but the burden of medical expenses paid by the insured due to facts. However, medical expense insurance is a kind of property insurance, because this kind of factual burden belongs to a kind of property interest like legal liability.
Obviously, this reconstruction of the definition of medical expense insurance and the nature of its subject matter refers to the corresponding content of liability insurance, but only replaces "legal coercion" with "factual coercion". Then, is this reference and substitution reasonable, and can "factual coercion" play the same role as "legal coercion" in liability insurance? In order to answer this question, it is necessary for us to start with the theory of negative insurable interest, which is the theoretical basis of liability insurance, and analyze it.
Thirdly, the theory of negative insurable interest is analyzed and expanded.
(A) the general principles of the role of insurable interest
According to the theory of insurance law, there are two main purposes to require the insured to enjoy the insurable interest in the subject matter insured, one is to avoid and the other is to prevent moral hazard. So how does the insurable interest achieve these two purposes? According to the definition, insurable interest refers to an economic interest relationship between the insured and the subject matter insured, and because the subject matter insured will inevitably suffer some kind of loss after the insurance accident, insurable interest can actually be regarded as the connection between the insured and a specific loss. In other words, the insurable interest determines that the loss shall be borne by the insured (or the risk shall be borne by the insured). Therefore, in the case of insurable interests, insurance behavior does have the economic security significance of dispersing future losses (risks), which is different from simple behavior; At the same time, it is precisely because the loss is determined to be borne by the insured. Therefore, when the available insurance amount is less than or equal to the economic value (i.e. loss) of the insured interest itself, the insured is unlikely to intentionally create an insurance accident, and moral hazard can be avoided. At this point, it is not difficult to see that determining the insured to bear the loss is actually the key to the insurance interest. Then, how is the determination of this kind of loss bearing realized in the specific type of insurance interest?
(b) Loss of negative insurable interest.
Let's first examine the situation of positive insurance interests. At this time, the subject matter of insurance is positive property with inherent interests. In the event of an insurance accident, the inherent benefits cannot be realized and losses will occur. For the insured, the existence of positive insurable interest means that his identity is the holder of those rights embodied in positive property recognized by law. Therefore, the direct losses suffered by the rights enjoyed by them should, of course, be borne by the obligee himself. From the principle of insurable interest, that is, the loss determined by the positive insurable interest will be borne by the insured, which is in line with the above. Therefore, we can be sure that positive insurance interests can achieve the purpose of avoiding and preventing moral hazard.
So, what about negative insurance benefits? At this point, the subject matter of insurance has become "unprofitable", showing the responsibility of paying money. However, it should be noted that this "unprofitable" is different from the direct loss caused by insurance accidents. From the objective facts, the occurrence of insurance accidents will indeed cause certain losses, but in the case of negative insurance interests, the losses are not directly borne by the insured himself, but actually borne by the third party, such as traffic accident victims in compulsory insurance, employees in employer liability insurance and so on. However, for the insured, the existence of negative insurance interest means that there is a close interest relationship between him and the "no interest" of the subject matter insured, that is to say, although the actual victim is someone else, the insured still has to bear certain overseas payment responsibilities. The object of this liability is actually the direct loss caused by the above-mentioned insurance accident. Therefore, from the principle of insurable interest, negative insurable interest is actually to transform the losses caused by insurance accidents into the responsibilities that the insured should bear, and finally ensure that the losses are borne by the insured.
But the question is, how is this transformation completed? The mechanism of transformation is actually a kind of "mandatory" existence, forcing the insured to bear the losses of the victim when the accident occurs.
(c) the expansion of "compulsory" in negative insurance benefits
At present, the academic circles usually only associate the negative interest of insurance with legal liability, in other words, the loss transformation is considered to be completed only by law. Specifically, in the case of traditional liability insurance, the interest relationship between the insured and the legal liability as the subject matter of insurance (that is, the negative insurable interest itself) is manifested as the coercive force brought by the legal provisions, forcing the insured with a certain identity to bear the corresponding legal liability when the damage accident occurs. It is precisely because of this legal compulsion that the losses directly caused by the accident to others are transformed into losses (legal liabilities) that need to be borne by the insured, thus satisfying the key conditions of the principle of insurable interest. Therefore, legal coercion can be said to be the key to make negative insurance interests play a role in liability insurance.
However, as the analysis of medical expenses insurance shows, in real life, even if there is no legal compulsion, the parties will still have to bear the losses of others because of some factual factors. In other words, the reason why the insured in this case is willing to "pay the bill" for the damage suffered by others is because there is a "factual coercion" with similar effect as legal coercion. The so-called "factual coercion" can be defined as: the existence of certain facts will have a significant impact on decision-making, including the aforementioned survival instinct, blood relationship, reasonable expectation of economic interests, and the irreplaceability of specific property. The parties concerned must be responsible for the damage at the time of the accident. The "responsibility" that this fact forces the parties to bear is actually the subject matter of insurance in this case. As a concept opposite to legal liability under legal coercion, the author calls it "factual burden". Therefore, in the case of factual coercion, an interest relationship similar to that generated by legal coercion can also be established between the insured and the factual burden, that is, a negative insurance interest can be formed.
In a word, fact coercion can transform the loss of the direct victim of the accident into the loss borne by the insured (fact burden), thus ensuring that this negative insurance interest (produced by fact coercion) can achieve the purpose of avoiding and preventing moral hazard like liability insurance (produced by legal coercion).
Therefore, we should naturally refer to the relevant contents of liability insurance and reconstruct the definition of medical expense insurance and the nature of its subject matter.
Four. conclusion
The problem with the two viewpoints of "compensatory life insurance" and "intermediate insurance" is that they both accept the premise that "medical expense insurance has personal attributes" in a preconceived way. However, as mentioned above, specific losses such as medical expenses are not logically related to the fact of personal injury, so the subject matter of medical expenses insurance is not personal. In fact, there is only one factor that may have personal attributes in medical expense insurance, that is, the insurance interest formed by factual compulsory factors such as survival instinct and specific kinship. However, because life insurance and property insurance are divided according to the subject matter of insurance, even if the insurance interest has personal attributes, medical expense insurance cannot be considered as personal attributes.
To sum up, medical expense insurance is actually a kind of insurance to compensate the insured for the losses caused by having to bear the relevant medical expenses. Just like liability insurance, they are all insurance to protect negative insurance interests, but their compulsory basis is different. The object of medical expenses insurance is not personal or health, but the burden of medical expenses paid by the insured due to facts. Because this kind of fact burden, like legal liability, belongs to a kind of property-related disadvantage, medical expense insurance is a kind of property insurance, and of course the principle of loss compensation applies.
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