Keywords: liability insurance rescue costs. U.S. Justice Cardozo once said a famous saying: "Danger invites rescue. The cry of distress." (Danger invites rescue. The cry of distress. is the summons to relief.) ① In other words, no matter what the circumstances, rescue is essential after damage occurs. Therefore, this article discusses not the necessity of rescue, but how the costs incurred by rescue should be handled. 1. Posing of the problem Article 42 of my country’s Insurance Law stipulates: “When an insured accident occurs, the insured has the responsibility to try his best to take necessary measures to prevent or reduce losses. After an insured accident occurs, the insured shall prevent or reduce losses of the subject matter insured. The necessary and reasonable expenses paid shall be borne by the insurer; the amount borne by the insurer shall be calculated separately from the amount of compensation for the insured subject matter, and shall not exceed the insured amount after the occurrence of such an insured accident. "Necessary and reasonable expenses paid to prevent or reduce the loss of the insured subject matter" are customarily called "rescue expenses". The purpose of the insurer to bear such expenses in addition to the amount of the insured subject loss is to fully mobilize the insured's enthusiasm for rescue, so as to prevent the expansion of losses inappropriately. Currently, there are differing views on whether there is a "rescue expense" in liability insurance and how this expense should be treated. Some scholars believe that the insurance liability of liability insurance generally only includes the following two contents: 1. The insured’s legal liability for financial compensation for causing other people’s property losses or personal casualties; 2. Any compensation disputes caused by the insured’s payment litigation, attorney fees and other expenses agreed to by the insurer in advance. ② "Rescue expenses" are part of the insured's legal liability to others and should not be treated as a separate liability. However, some people believe that in liability insurance, the insurer shall compensate the insured in accordance with the law for the compensation liability and the necessary and reasonable expenses paid by the insured to prevent or reduce losses. The amount of compensation shall not exceed The limit of compensation per accident specified in the insurance policy. ③ In the liability insurance clauses of insurance companies, some list “rescue costs” as a separate liability of the insurance company, that is, “after the insured accident occurs, the insured artificially reduces or reduces the compensation for personal injury or property damage to a third party.” "The insurer shall be responsible for compensation for necessary and reasonable expenses paid for liability," such as public liability insurance, catering establishment liability insurance, power supply liability insurance, campus liability insurance, and property management liability insurance developed by China People's Property Insurance Co., Ltd. in recent years wait. Some do not list rescue costs separately. For example, in the motor vehicle third-party liability insurance clause of China People's Property Insurance Co., Ltd., rescue costs are not a separate compensation limit. The rescue costs of third-party liability insurance are the same as those of the third-party liability insurance. The total amount of the losses of the three parties shall not exceed the insurance compensation limit of the third party liability insurance. Insurance companies’ traditional liability insurance products, such as public liability insurance, product liability insurance, employers’ liability insurance, etc., do not list rescue costs separately in the relevant provisions promulgated by the People’s Bank of China. The author believes that the fundamental reason for the above-mentioned differences between theory and practice on this issue lies in the differences in understanding of the concept of rescue costs and the scope of application of Article 42 of the Insurance Law. 2. The Concept and Requirements of Rescue Expenses According to Article 42 of the Insurance Law, rescue expenses refer to the necessary and reasonable expenses paid by the insured to prevent or reduce the loss of the insured subject matter after the insured accident occurs. The following elements are required to constitute rescue expenses: (1) The rescue expenses must be incurred after the occurrence of the insured accident. The premise for the occurrence of rescue expenses is that the insured danger must have occurred, or the insured subject has been in danger, and not just worried about the danger soon. Danger may occur. This element distinguishes rescue costs from disaster prevention costs.

Any expenses incurred before a disaster or accident occurs are of a preventive nature and the insurer will not be responsible. However, in some special circumstances, although the disaster or accident has not occurred, it is close to happening and rescue is urgent. In order to avoid damage to the insured property For larger losses, the expenses incurred in taking urgent and necessary measures to protect the insured property, which are later proved to be timely and effective, shall be regarded as rescue expenses and shall be compensated. If the insured property is moved due to flood fighting and rescue, and the original storage location is indeed flooded afterwards, the cost of moving and moving back as well as the storage rent of the rescued insured property at the nearest safe location will be compensated. In addition, the danger in which the insured subject is exposed must be a risk covered by this insurance, that is, it must be a risk for which the insurer is responsible. If the danger that occurs is not a danger covered by this insurance, or the losses caused by the danger are not compensated by this insurance, of course the rescue costs will not exist at all for the insurer. (2) It must be for the purpose of preventing or reducing the loss of the insured subject matter. Another prerequisite for the occurrence of rescue expenses is that there must be potential losses, that is, if rescue measures are not taken, such losses will definitely occur. In other words, the purpose of rescue must be to prevent or reduce the loss of the insured subject matter, but it does not matter whether it achieves the effect of preventing or reducing the loss of the insured subject matter. This point is clearly stipulated in the insurance laws of some countries. For example, Article 63 of the German Insurance Contract Act clearly stipulates: “The expenses incurred by the proposer in accordance with Article 62, even if no effect has occurred, if based on the circumstances at that time, If the proposer considers that the expense is necessary, the insurer shall reimburse it." (3) Must be necessary and reasonable expenses. Rescue expenses must be "necessary and reasonable" expenses. This is essentially a factual issue rather than a legal issue. Whether an expense is necessary or reasonable can usually only be determined by what a prudent uninsured owner would have done if the hazard had occurred. If a car insured with "vehicle loss insurance" is towed away for repairs by a tow truck after a traffic accident, the towing fee will be 300 yuan. If the accident vehicle is allowed to be parked at the accident site and ignored, the vehicle's losses will inevitably expand. The 300 yuan expenditure meets the requirement of "paid to prevent or reduce the loss of the insured subject matter." However, in order to obtain compensation from the insurance company, it should also be inspected based on the "necessary and reasonable" standard - if the car loses its driving ability and cannot be moved without a tow truck, then using a tow truck is necessary, and the towing fee of 300 yuan is also included. Within a reasonable range, based on the two factors, it can be determined that the insured's expenditure of 300 yuan should be compensated. If the car is still able to drive normally despite being involved in an accident, it is not necessary to use a tow truck to tow it away. Even if the tow truck is forced by the traffic management department, it is not a reasonable rescue fee. The tow truck paid thereby Fees should not be reimbursed from insurance companies. 3. There is no separate “rescue expense” in liability insurance. As mentioned above, some liability insurance clauses of insurance companies list rescue expenses as a separate liability, and refer to the provisions of Article 42 of the Insurance Law as follows: "After an insured accident occurs, the insured shall be responsible for compensation for necessary and reasonable expenses paid by the insured to reduce or reduce the liability for personal injury or property damage to a third party." The author believes that this simple copying is from There are certain problems both in theory and in practice. (1) Questions about the application of Article 42 of the "Insurance Law" to liability insurance. First of all, for "insured occurrence", in general property insurance, it refers to the occurrence of insured risks, such as the occurrence of fire in fire insurance, maritime accidents and accidents in marine insurance When disasters occur, this is straightforward and unproblematic. In liability insurance, the "occurrence of insured accidents" is much more complicated. For example, insured A enters into a liability insurance contract with Insurer B based on its transportation liability to Shipper C. As a result, the transported goods were destroyed in a car accident due to the negligence of the transporter A. Therefore, A should be liable to C for damages. When C requests compensation from A, A can request insurance payment from B.

In this series of facts, there are four theoretical views on what is an insured accident in liability insurance: 1. Damage accident theory, which believes that an accident that causes damage is an insured accident, such as the car accident in the precedent; 2. The liability of the insured The occurrence theory holds that after a loss accident occurs, if the insured is legally liable for compensation, it is an insured event. Therefore, the occurrence of the insured's liability is an insured event. After the accident in the previous example, if it is found that the fault of the insured was caused, and the insured should be held responsible according to law, it is an insured accident; 3. The theory of claim by the insured means that the insured was deemed to have been injured by a third party. When a claim for compensation is made, the insured event occurs, that is, "the insured is subject to the claim" is the insured event of liability insurance; 4. According to the theory of performance of the obligation to compensate, it is considered that when the insured is subject to the request of a third party, it is still not insured. An insured accident occurs only when the insured has fulfilled its obligation to compensate the third party, and only then can the insured claim payment of insurance benefits from the insurer. ○4 my country's "Insurance Law" does not clearly stipulate which doctrine to adopt, but according to Article 50 of the "Insurance Law", "Liability insurance refers to insurance based on the legal liability of the insured to third parties for compensation as the subject of insurance." , seems to adopt both the second and third theories, that is, the insured should be liable for compensation according to law, and the request for compensation is the occurrence of the insured accident. For example, some scholars believe that liability insurance is insurance in which the insurer assumes liability for damages when the insured is legally liable for damages. This kind of insurance takes the liability that the insured should bear in accordance with the law as the subject matter of the insurance, and the third party's request for compensation from the insured as the insured event. The insured amount is the value of the loss compensated by the insured to the third party. ○5 In this way, rescue, as an emergency measure taken after the occurrence of a damage accident, obviously cannot happen again after the insured's liability for compensation has been determined and the claim for compensation has been received. Secondly, "loss of the insured subject matter" is easy to understand in general property insurance, because the insured subject matter of general property insurance is tangible objects, while the insured subject matter in liability insurance refers to the compensation that the insured shall bear to a third party according to law. Liability, the so-called "loss" of liability is not easy to understand. Thirdly, necessary and reasonable expenses, in general property insurance, mainly include reasonable expenses incurred in rescuing, protecting, and sorting out the insured subject matter, such as fire-fighting labor costs, fire-fighting equipment costs, and costs of sorting out damaged materials, etc. It is easier to distinguish between such expenses and the loss of the insured subject matter. In liability insurance, rescue expenses mainly include rescue and medical expenses for personal casualties, rescue, repair, and disaster control expenses for property losses, etc. It is difficult to distinguish such expenses from the compensation liability that the insured should bear according to law. , or even indistinguishable at all. (2) Listing "rescue expenses" separately in liability insurance will lead to a series of operational problems. First of all, the rescue and treatment of personal casualties after the liability insurance accident is essentially a way for the insured to assume liability for compensation, and should be included in it. Compensation shall be made within the limit of liability, but no additional compensation shall be made in the name of rescue costs beyond the limit of liability. Otherwise, the liability of the insurance company will increase. For example, in travel agency liability insurance, if a travel agency vehicle is involved in a car accident and a traveler is seriously injured, the cost of rescuing the traveler and subsequent treatment is essentially a way for the insured to bear civil liability, rather than a rescue fee. For another example, the rescue expenses and the insurer's compensation liability in the compulsory motor vehicle third-party liability insurance stipulated in Articles 75 and 76 of my country's Road Traffic Safety Law also use a liability limit instead of There is a separate limit for rescue costs. Secondly, in liability insurance, the costs of repairing and replacing property that may cause damage to people should not be listed as separate compensation for rescue costs, but should be protected by property damage insurance. For example, the aforementioned power supply liability insurance clause of the People's Insurance Company of China Co., Ltd. includes an insurance liability coverage that "breaks, short-circuits, and miswiring of power supply lines caused by the insured's construction" resulting in personal casualties and property losses to a third party that are legally responsibilities. Liability. At the same time, it also stipulates that rescue costs should be compensated, and additional compensation should be paid in addition to the compensation limit for each accident.

So, does the cost of emergency repairs for power supply line breaks, short circuits, and misconnections count as rescue costs? Judging from the insurance liability in the clause, it is undoubtedly an insurance liability. Because if the power supply line is not repaired, it will inevitably cause a larger liability accident. This is a necessary and reasonable expense paid by the insured to reduce or reduce the liability for personal injury or property damage to a third party. In this way, wouldn't the power supply company's emergency repair costs for the line be compensated by liability insurance? ○6This is obviously not in line with the insurance company’s original intention. (3) The rule of proportional compensation for rescue costs cannot be applied to liability insurance. At present, in the property insurance clauses of insurance companies, some special clauses are often set for rescue costs in order to control risks and reasonably share losses. For example, Article 14 of the basic property insurance clauses promulgated by the People's Bank of China stipulates: “When an insured accident occurs, the amount of compensation for necessary and reasonable rescue expenses paid by the insured shall be calculated separately in addition to the loss of the insured subject matter, and shall not exceed the insured amount. If the damaged insured subject matter is compensated in proportion, the cost shall also be compensated in the same proportion as the property damage compensation. This is the proportional compensation rule for rescue costs. In liability insurance, since there are no issues of under-insurance and proportional compensation, this rule cannot be applied, which may lead to an expansion of the insurance company's liability. (4) Foreign liability insurance clauses generally do not list rescue costs separately. For example, the liability insurance clauses formulated by the US ISO (Insurance Service Office) include three parts of liability: personal injury liability, property damage liability and emergency medical expenses. Compensation for personal injury and property damage includes the insured's liability according to law. Emergency medical expenses are humanitarian emergency personal rescue expenses. Generally, a very low limit is set, such as 1,000 US dollars, and it does not include Separate rescue costs. To sum up, the author believes that the rescue expenses of liability insurance and the rescue expenses of property insurance are completely different in nature and scope. There should not be a separate issue of rescue expenses in liability insurance. Insurance companies should consider this when designing the clauses. Careful consideration should be given, and the practice of property damage insurance should not be simply copied to avoid increasing practical difficulties.