Restrictions on insurer’s subrogation rights in co-insurance: a case study of Chinese law and judicial practice

Jing, Zhen and Jiang, Tianyi ORCID: https://orcid.org/0000-0002-3532-6663 2022. Restrictions on insurer’s subrogation rights in co-insurance: a case study of Chinese law and judicial practice. The Journal of International Maritime Law 28 (3) , pp. 194-206.

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Abstract

This article examines the Chinese judicial practice regarding subrogation action in co-insurance. It also considers the recent development in English common law in respect of subrogation action against a co-insured. It is concluded that whether an insurer can take a subrogation action against a co-insured depends on the construction of the underlying contract between the co-insureds. If the underlying contract provides that there is to be no liability of a co-insured to the principal insured, the insurer cannot exercise his subrogation right against the co-insured. If there is no such an express exclusion, in the absence of a subrogation waiver clause in the insurance policy, the insurers would not be precluded from bringing a subrogated claim against the co-assured. To what extent the insurer may sue the co-insured depends on the extent to which liabilities are imposed on the co-insured by the interpretation of the underlying contract. The absence of statutory provisions relating to subrogation in coinsurance in the Chinese Insurance Law is a major loophole, it is suggested that the Insurance Law should introduce provisions regarding subrogation against co-insured. It would be beneficial to refer to the recently developed English common law rules in the future attempt to formulating statutory provisions for the Chinese Insurance Law in this area.

Item Type:	Article
Date Type:	Published Online
Status:	Published
Schools:	Cardiff Law & Politics
Publisher:	Lawtext Publishing
ISSN:	1478-8586
Date of First Compliant Deposit:	20 November 2022
Date of Acceptance:	29 October 2022
Last Modified:	22 Nov 2024 02:45
URI:	https://orca.cardiff.ac.uk/id/eprint/154338

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