The Impact of Liability Insurance on Tort Law

• Main Authors: Ting-Che Tai, 戴廷哲
• Other Authors: 陳聰富
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/94569414639927854938

碩士 === 國立臺灣大學 === 法律學研究所 === 102 === This thesis aims at providing the lawmakers and the courts in Taiwan with a clear, specific and practicable method to recognize the function of liability insurance in tort law, and to revise, interpret and apply tort law, and whereby making tort law fulfill its purposes it shall have and play a more active role in a day in which liability insurance is becoming more and more prevalent. In the first place, this thesis analyzes what role liability insurance has played and what influence it had during the evolution of tort law, and clarifies what tort law has become under the impact of liability insurance. Tort law has had thousands of years of history; in its history it has experienced many changes to become what it is today. On the other hand, liability insurance has had a close relationship with tort law, and has impacted tort law directly or indirectly since it first appeared around 100 years ago. Therefore, in the present days, as liability insurance thrives, it is necessary to analyze the de facto impact of liability insurance on tort law for the comprehension of tort law. This thesis collects and studies legislations, practices, sentences of courts, and academic theories related to this topic from the UK, the US, and Taiwan. The aspects of study include the practical application of tort law, the practices of settlement in tort cases, the attitude of courts, the criterion of liability, the formation of liability, defenses and immunity, and damages compensation. After the enquiry, the study shows that in the UK and the US, liability insurance has apparent impact on tort law. Generally speaking, tort law of the UK and the US has become stricter through the impact of liability insurance. The significant phenomena are as follows: firstly, in many cases of the UK and the US, the courts broaden duty of care when the defendants have liability insurance. Secondly, insurers in the UK and the US usually prefer to decide who liable is by the simplified rules rather than the formal tort rules, which makes victims easier to receive compensation than to go to courts. Thirdly, in the early time of the UK and the US, the amounts of compensation kept increasing through the prevalence of liability insurance; however, the trend held or even declined due to the fact that the insurance system could not stand the high compensation. In terms of Taiwan, the thesis indicates that as a whole, the influence of liability insurance on tort law is not as significant as in the UK or the US. Nevertheless, the thesis identifies some strict liability legislations made in Taiwan with high relevance of the prevalence of liability insurance. Moreover, some courts in Taiwan take liability insurance into account while determining the defenses. The most manifest evidence supporting this feature from this thesis is that the Compulsory Automobile Liability Insurance causes the increase of the amounts of non-pecuniary loss compensation. After analyzing the de facto impact, this thesis makes a further discussion on the de jure impact of liability insurance on tort law. With studying relevant theories and based on the purposes and the legal foundation of tort law, the thesis analyzes how tort law ought to treat liability insurance, and whereby proposes a novel methodology interpreting and applying tort law. The thesis is of the opinion that tort law has three main purposes, loss compensation, deterrence, and ensuring the freedom to act. Meanwhile, tort law has two essential legal foundations, corrective justice and distributive justice. The thesis proposes a theory called “interactive use between corrective justice and distributive justice”, which infers that the use of the two legal foundations can be convertible. According to this theory, when a defendant is able to distribute his/her liability effectively and fairly, distributive justice is the most capable of fulfilling and balancing tort law’s three purposes, and therefore shall be applied. Since liability insurance would render the capability distributing liability to a defendant who originally lacks the ability, distributive justice shall be applied when a defendant has liability insurance. That is to say, it implies that strict liability should be imposed on the defendant. In contrast, where a defendant has neither liability insurance, nor any other tool to distribute his/her liability, corrective justice shall be applied, which implies imposing the fault liability. Consequently, whenever courts try a case, it must consider if there is liability insurance to determine which legal foundation shall be applied. The function of liability insurance in tort law is to enhance the opportunity and justification of applying distributive justice and imposing strict liability on the defendant. This thesis further argues that by flexible manipulation of “duty of security of transaction (Verkenrspflicht), aforementioned theory is able to be brought into effect in the present tort law of Taiwan. In the final section, this thesis examines the defects of the law concerning products liability, drivers’ liability, and medical malpractice in Taiwan, and subsequently propounds some suggestions. The thesis contends that the product manufacturers and services providers who lack adequate ability to distribute tort liability shall be excluded from the range of Article 7 of the Consumer Protection Law of Taiwan. With respect to drivers’ liability, considering the prevalence and the well development of Compulsory Automobile Liability Insurance, strict liability shall be imposed on drivers. In medical malpractice, the thesis advocates that tort liability should be combined with liability insurance, by which the loss of medical malpractice would be able to be distributed to all physicians and patients, and consequently the law should impose strict liability on medical malpractice in order to achieve win-win situation for both sides of physicians and patients.