| Summary: | 碩士 === 國立臺北大學 === 法律學系一般生組 === 103 === When the insured is legally obligated to indemnify a third party and receives a claim in connection therewith, the liability insurer is liable to provide indemnification. Originally, the function of indemnification is emphasized by the legal interpretation . However, with the development of the legality in liability insurance, there are more proposition by scholars and judgment affirm the function of protection of rights against the claimant based on the purpose of liability insurance. For example, the main contractual obligation contains either the duty to indemnification or the duty to right protection in German law. Besides, it is confirmed the duty to defend (defend against the claimant and the duty to settle) in U.S .and U.K.
Article 91 of Insurance Act in R.O.C providing that all necessary expenses incurred by the insured to raise a defense against a third party's claim shall be borne by the insurer instead of participating in the claim proceeding to defend against or settle with the claimant. Although it is criticized that it is insufficient to provide the defense, undeniably, whether going defense or settlement decided by the insured indeed reduce the conflict of interest between the insurer and the insured. It should be prevented that the insured do unreasonable acknowledgement, settlement with the claimant intentionally or conspiratorially owing to the decision right of the insured above, so the insurer is entitled the right to participate and consent stipulated by article 93-1 of Insurance Act. However, the insurer should accept the reasonable settlement offer in the specific circumstances derived from collateral obligation.
This paper will focus on the issue of the defense form and action comparing R.O.C. with U.S. law, and also discuss and analyze the legality elements, effect of article 91 & 93 of Insurance Law in this paper.
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