“诉责险”费用承担问题研究

Study on the Bearing of Costs of Litigation Liability Insurance

摘要: “诉责险”近年来在民事诉讼保全程序中得到广泛应用，为解决“执行难”问题提供助力。与其广泛应用前景相左的是实务中仍存在大量尚待明确的问题。本文通过大量案例研究厘清“诉责险”费用承担问题焦点。从“诉责险”的性质和功能定位的角度进行分析，认为“诉责险”本质上是申请人(原告)为避免自身因保全申请错误面临侵权赔偿风险而购买的责任保险，在保险范围内将赔偿风险转嫁给保险人。“诉责险”保险费支出并不是其为促成保全申请的必要支出，其在保险交易中也获得了对价保障，并不存在损失，因此不应主张由被申请人(被告)承担“诉责险”费用。

Abstract: Litigation property preservation liability insurance has been widely used in civil litigation preservation procedures in recent years, providing assistance in solving the problem of difficult executions. Contrary to the prospect of its wide application, there are still a large number of problems in practice that have yet to be clarified. In this paper, through a large number of case studies to clarify the litigation property preservation liability insurance costs bear the focus of the problem. From the perspective of the nature and functional positioning of the insurance analysis, that the litigation liability insuranceis essentially the applicant (plaintiff) in order to avoid the risk of tort compensation for their own errors in the preservation of the application to purchase liability insurance, within the scope of the insurance will be the risk of compensation Shift the risk of compensation to the insurer within the scope of insurance. The premium expenses of the insurance are not necessary for the application for preservation, and the applicant has obtained the protection of consideration in the insurance transaction, and there is no loss, so it should not be claimed that the defendant should bear the premiums of the litigation liability insurance.