再保險之目的，在於提供保險人保險保障。其方式乃再保險人就原保險人在原保險契約中所負之給付責任，予以部份或全部的補償。再保險契約就再保險人之再保險給付責任所為之約定，最常見者為「同一命運原則」之約定。依「同一命運條款」之字面解釋，此條款係指再保險人須與原保險人「同一命運」，於原保險人對被保險人為保險給付後，補償原保險人因對被保險人為保險給付所生之損害。 依據損害補償原則，須保險人之保險給付在保險契約及再保險契約之承保範圍內，再保險人始負再保險給付之責任。為了避免嚴格依據損害補償原則解釋再保險人之責任，造成保險人無法取得再保險保障之結果，並提高對於保險人之保障，再保險契約雙方乃藉由同一命運條款的相關約定，約定保險人只須證明其已向被保險人為補償給付且其給付係依「誠信」所為，再保險人即須同其命運，向保險人為補償給付。再保險人此一契約義務，乃再保險契約雙方當事人基於契約自由，於再保險契約中特別加入同一命運條款的結果。 保險人之「誠信」乃同一命運原則適用之基石，此為法院所共同肯認。然而，對於同一命運原則於個案中之具體適用，法院之看法似乎並無足夠的一致性。究竟，決定再保險契約雙方當事人權利義務的同一命運原則，法院如何解釋其適用上發生之爭議？又，法院對於抽象的誠信原則如何解釋？在同一命運原則的背景下，再保險人是否可以提出何種抗辯以免除其保險給付責任？最後，是否這些問題的解答可以有某程度的預測可能性，以供日後再保險契約雙方草擬同一命運條款之參考？ 針對保險人對被保險人所應為之補償，再保險人與原保險人可能有不同解釋，前者認為再保險人與保險人同一命運之範圍，應以原保險及再保險約定之範圍為限；後者則認為凡保險人所給付與被保險人者，再保險人皆須與其同一命運，負擔給付責任。縱使再保險契約雙方皆主張其以再保險契約之約定為給付責任範圍之界定基礎，然基於利益彼此對立之立場，雙方對於「契約約定」往往有不同詮釋。再保險契約雙方間之爭議，實務上常見者如，原保險人對被保險人所給付之通融賠款（Ex-gratia payment）、懲罰性賠償（Punitive damages）等，是否屬於再保險人與保險人同一命運之範圍？將此類爭議一般化，須探究者為，同一命運條款何種程度限制了再保險人對原保險人之給付表示異議的權利？ 另外，倘若再保險契約中沒有同一命運條款的約定，是否可認為此條款為再保險契約所「默示」（Implied）？此問題涉及同一命運原則的歷史背景，與再保險市場的運作實務息息相關，對於契約的解釋方法也有重要啟示。 同一命運原則為再保險交易發展史上，最常受到爭議的問題之一。現今之再保險交易環境已然愈趨複雜，不僅是所保危險之價額日趨提高，投入再保險交易之保險人數增加且交易類型複雜化，皆使得再保險交易雙方之風險分配及責任分擔，不再可以全然依賴保險人對於誠信原則之遵守。反之，應同時強調再保險與保險之不同，亦即，前者係由專業之保險人為交易雙方而進行之交易，故再保險人應可依其專業，對所保危險主動向保險人提出詢問，此亦顯示了保險人及再保險人間彼此合作愈趨重要，為再保險人負擔再保險給付責任之正當性基礎。本文嘗試處理以上提出的爭議問題，並對可能之解決提出建議。 / The reinsurance loss settlement clause, which appears in a variety of forms of wordings, historically has been one of the most difficult aspects of reinsurance law and practice. In recent days, more and more litigation has arisen as a result of such clauses. This study centers upon the interesting and oftentimes confusing issue of the scope and effect of such clauses, and how they define both the reinsured’s and the reinsurers’ liability. The purpose of reinsurance is to provide insurance protection by the reinsurer for the reinsured, namely, the insurer. At the beginning of reinsurance history when there were only a small number of insurers operating in the insurance market, insurers were fairly familiar with one another, and that resulted in a minimum of formality in doing business. In terms of reinsurance, reinsurers, when asked to pay by their reinsured, normally did not go out of their way to initiate a de novo review or assessment of the risk insured. The main reasons for such practice were, for one, insurers were so familiar with their business partners that they did not see the need for such re-assessment of the risk, and for another, in the past, the nature of the risks insured was not as complicated as those we are faced with nowadays. With a view to enhancing business efficiency and providing better protection for insurers, the parties that engaged in a reinsurance agreement oftentimes would insert into the agreement a “follow the fortunes” or “follow the settlements” clause. Such clauses bound the reinsurers to follow the fortunes/settlements of their reinsured without the reinsured’s liability having been proved, and restrained the reinsurers from refusing to indemnify the reinsured on the ground that liability did not exist under the original policy, provided that the reinsured had acted in a bona fide and businesslike way. In a word, the existence of the loss settlement clause was a logical consequence of the purpose of reinsurance, and the reinsurers’ obligation under such clauses was conditioned on the reinsured’s good faith. Reinsurance loss settlement clauses have been interpreted by the court rather favorably for the reinsured. Courts would normally find coverage for the reinsured, once they decided that the reinsured had acted in good faith in settling with the insured, even if they held that the reinsured had not been legally liable. This fact highlights the importance of the reinsured’s duty of utmost good faith in reinsurance law and practice. However, what exactly is good faith, and what are the reinsured’s obligations under the good faith requirement? Is there a general rule that the courts have developed to justify their finding of the reinsured’s good faith? If good faith, being abstract in itself and susceptible to courts’ subjective discretion, serves as the “standard” to evaluate or define the liability of the parties to a reinsurance agreement, how does it usually function? Does it at times seem so abstract and variable that the reinsurance agreement parties have a hard time predicting their liability under such a standard? Also, in this study, the questions of the implication of loss settlement clauses and the scope or effect of such clauses are explored. The former question asks, where the reinsurance contracts do not contain any “follow the fortunes or settlements” provisions, does the law, custom or practice read into the contracts any obligation on the reinsurer to follow its reinsured’s fortunes or settlements? This question is important in that it deals with the applicability of loss settlement clauses, and thus has a fundamental impact on how reinsurance contracts are interpreted. The latter question aims at clarifying how loss settlement clauses are applied to pertinent areas such as ex gratia payments, punitive damages, reinsurers’ liability caps, payments related to the Wellington Agreement and claims cooperation clauses. Specific examples are given here in order to better understand how loss settlements clauses are put to practical use. Discussion concerned with this question also demonstrates how a loosely worded loss settlement clause could give rise to disputes between the parties. To better define the parties’ rights and obligations under a reinsurance agreement, a more detailed review of how the reinsurance environment as a whole is functioning and how the courts interpret reinsurance loss settlement clauses is required. This issue will be even more worth pondering now that we are seeing a more complex reinsurance market where the parties’ interests are potentially conflicting, which is per se a challenge to the general view that the reinsurers should follow the fortunes or settlements of the reinsured.

保險代位之本質，可說是整個保險代位體系之核心所在。本文乃以保險代位之本質—亦即求償模式為重心，對於保險代位之相關問題，依序加以討論。本文首先自保險代位存在之法理、以及學說上對其之批評加以分析、並提出回應。在保險代位之求償模式方面，我國傳統以來循大陸法系之傳統，採取法定債權移轉理論，而與英美法有所不同；英美法之架構近年來漸受學說之重視，甚至對其有所爭議，故實有釐清之必要。本文乃對英美保險代位之本質、架構加以探索，並對其與擬制信託之融合詳加分析，以求釐清其法律關係。除了英美以外，本文亦對其他主要國家之立法例詳加分析，並歸納為大陸法系與英美法系兩大系統。而中國大陸與台灣均屬於繼受法之地位，關於保險代位求償模式、名義等，亦可見受不同立法例所影響之軌跡；其許多條款與學說見解亦有疑義，值得我國引以為戒。於分析英美法與各國立法例，並審酌我國之背景後，本文乃嘗試對我國提出「保險代位求償模式相對論」—即原則上仍採取法定債權移轉理論，但在保險人與被保險人有特定具體之特約時，則可約定採取英美法之模式、或是自行約定其他求償模式。 另外，關於不足額保險、而應負責之第三人資力不足時，保險人與被保險人之間受償順序之問題，本文將由傳統的法釋義學方法出發，藉由對立法例、實務與學說見解的分析，以重新思考相關的法理基礎。本文也將使用法律經濟分析的方法，以經濟模型重新考量代位求償過程中可能的因素，重新驗證被保險人優先受償模式對於被保險人的效用。就結論而言，在損失填補原則的架構下，被保險人優先受償模式仍應為最適的解決方案。但此原則應有以法規或嚴格意定予以排除、修正之空間。在判斷順序上，可依三階段判斷：先檢視法規有無特別規定，再檢視當事人間是否有特別約定，若均無再適用被保險人優先受償模式以分配之。 對於特別保險—如全民健康保險法、勞工保險條例、強制汽車責任保險法等中之代位體系，本文亦加以分析，並同樣認為於適當之類型中，本文之保險代位模式求償相對論亦應可加以適用。在再保險與保險代位之適用問題上，本文肯認保險人對第三人之求償無庸扣除再保險之給付。而對於再保險是否、如何適用於保險代位，本文則認為可以三階段判斷之：首先，就再保險之類型為判斷；再判斷原保險人是否欲向第三人求償；如再保險之類型適合、又原保險人不欲向第三人求償時，則應允許再保險人向第三求償。最後，總結全文提出結論；並分三階段對於我國法提出相關建議，以供未來進一步之參酌。 / The nature of subrogation can be regarded as the core of the subrogation system. This research put stress on the nature of subrogation which was the subrogation. Regarding the related problems of subrogation, they will be discussed orderly. The article firstly starts to analyze from the existence of subrogation and the criticism for the theory to provide the responses. In the aspect of the way how subrogation operates, our country traditionally follows the Continental Law System to adopt the “legal assignment theory” which is different the Anglo-American Law System. The structure of Anglo-American Law System is stressed by the theory and is very controversial. Consequently, it is necessary to figure out the truth. This research is aimed at exploring the nature and structure of common law subrogation theory and analyzes other integration of the constructive trust to figure out the law relationship. Except for Anglo-American countries, this research also analyzes the lawmaking of other countries and induces the two main systems which are Continental Law System and Anglo-American Law System. Mainland China and Taiwan belong to the status of Succession Law. Regarding the subrogation and nominal, it can be seen that the orbit is affected by different ways of lawmaking. Understandings of many clauses and theories are still uncertain. Our country should learn a lesson from it. With analyzing the ways of lawmaking of common law and each country, and considering the background of our country, the research attempts to address the “relativity theory of insurance subrogation” to our country. In principle, it still adopts legal assignment theory. However, when the insurer and insured have specific agreement, they can negotiate to adopt the Anglo-American model or make other subrogation model by themselves. Other problems can arise with regard to payment priority between the insurer and the insured, particularly in cases of underinsurance and when the responsible third party has insufficient funds to make up the difference. The present study takes the traditional rechtsdogmatik approach as its starting point, analyzing legislative precedents, practical aspects and academic theories to re-examine the underlying legal principles. The paper also makes use of economic analysis of law techniques, employing economic models to reconsider the factors that may be involved in the subrogation process, and re-examining the efficacy of the insured-whole doctrine from the point of view of the insured. The main conclusions reached are that, within the framework created by the principle of indemnity, the insured-whole doctrine is still the optimal solution; however, there may be situations in which the insured-whole doctrine must be rejected or modified in light of legal or regulatory requirements or strict interpretation. Determination can be made in three stages. Firstly, the relevant laws and regulations should be examined to determine whether any special provisions apply. Then, an examination should be made to determine whether any special agreements exist between the parties concerned. If no special legal or regulatory provisions apply and no special agreements exist, then the insured-whole doctrine can be applied. For the subrogation systems in special insurances—for examples, the National Health Insurance, Labor Insurance, and Compulsory Automobile Liability Insurance, the research also analyzes them and considers that in the proper type, the relativity theory of insurance subrogation can be adopted. About the problems about reinsurance and subrogation, this research admits that insurer asks for subrogation for the third party not need to deduct from settlement of reinsurance. For reinsurer and how to apply to the subrogation, the research considers that it can be judged from three stages. If the type of reinsurance is suitable and the original insurer does not want to claim against the third party, it should be allowed that the reinsurer can claim against the third party directly. Finally, the research makes the conclusion and provides related suggestions to the law of our country to be viewed as the future reference.