Is It Time to Reform new Solvency in Taiwan –with An Overview of Solvency Ⅱ
Abstract:
The growing need of a risk-based capital approach to manage the insurance company and evaluate the capital requirements are both important development in the EU and Taiwan. Solvency directives currently in the EU include a whole dimension of insurance company operations. The member countries and insurers in their jurisdiction are at different levels risk exposure. Under the different levels of risk exposure to the member countries’ insurers, it is not easy to implement the directive smoothly.
On the other hand, Taiwan, as a member of IAIS, has been faced the necessity to reform a new regulation framework to meet the solvency requirement and adequacy requirement on capital in order to competition with the solvency world trends. Comparison of solvency regulations with main jurisdictions, say U.S. and EU, in order to understand the variation in countries will be a cornerstone to us.
Though the trends to new solvency regulations is ongoing developing and the EC member countries should be in compliance with the principal rules in 2012. The mission to new Solvency Ⅱ still have a few challenges to be resolve. From the point of thinking, Taiwan’s regulator seems should adopt a soft way to launch, after “wait and watch”, the solvency regulations.
Key Words:
SolvencyⅡ, Solvency Margin, Guarantee fund, Risk-Based Capital (RBC), Minimum Capital Requirement(MCR), Solvency Capital Requirement(SCR), Best estimates, Risk Margin,
1 Introduction:
Insurance has always been one of the most regulated industries for the “risky” nature. Over a period of time, there has been a huge change towards a more deregulated environment. The regulators, however, still need to protect the policyholders’ interests.
Solvency has been a main measure to test the health of an insurance company. Solvency as a tool for ensures the ability of the insurer to meet its contractual obligations; this method used for its measurement has changed in this decade. Hence, a group of solvency principles from IAIS and the European Commission form the most important part of the regulations in insurance. Taiwan has also been put into the conflict of different approaches, how the mitigation can work through under our existing regulation framework would be a challenge at this moment in time. As the same reasoning, Risk-Based Capital (RBC) measurement and the regulations article in our insurance law form the solvency monitoring method in Taiwan is facing a necessity to restructure.
This paper will introduce the EU countries’ solvency regulations in brief, and then made a comparison with the regulation structure in Taiwan in order to afford a new consideration approach to our solvency regulations.
Regardless of the supervisory system, all “solvency norms” approaches have a few common features .
Consist of a “minimum solvency requirement” (a minimum amount of surplus of assets over the liabilities) or “required minimum margin"; the RBC ratio used in Taiwan also indicate the solvency ability and insolvency risk of an insurer.
The insurance companies need to prove that the “available solvency margin” (amount of free capital required for regulatory purpose) exceeds the “minimum solvency requirement”; it is similar to our disclosure of RBC ratio of an insurance company in period to prove the ability to meet its obligations.
The “control” level represents the amount that requires the regulator’s intervention. It has been regulated in our insurance law Article 149 to Article 149-11, but it seems too complex to regulate and sometimes confuse the reality of policyholders’ protection.
The “solvency test” shows compliance with the solvency requirements by the regulator. Follow the Basel II Agreement, the stress test to an insurer can give the early warning or signal to the supervisor in order to protect the consumers. It is also important to us, beside the RBC ratio, to create a framework of “solvency test” for insurance industry in examining the health of an insurer.
Today EC is introducing a new approach for measuring the financial stability of insurance companies. Known as Solvency II, this approach is intended to provide greater protection for policyholders and stability for insurance markets by providing insurance supervisors with better information to evaluate the solvency of insurance companies. The solvency tool in Taiwan seems to be relative less advantage with EU, so we are facing a strong necessity revising the solvency regulation which was based in a RBC basis consideration in this decade. Hence, there is a new issue to improve the solvency regulation framework with a whole dimension.
Solvency regulations have moved over past years from simple ratio-based methods to complex risk-based approach. The solvency regulations development in EC member countries started from the first life and non-life directives of the EU (in the 70’s) through the time of Solvency I. from a premiums-based into a better risk-based approach.
Due to the complexity of the subject, a single regulation framework fits all line of insurance business is nearly impossible. Hence, this paper focuses on life insurance for discussions.
2 Solvency Ⅰ regulations versus RBC system
The Life insurance directives (EEC 1979) and the non-life insurance directives (EEC 1973) can be considered as the start of a solvency requirements to fulfill in an insurance market. The approach was simple and straight forward. Solvency was based on simple accounting results.
The calculation of the Minimum Solvency Margin (often referred to as the Required Solvency Margin) consisted of two results:
The first related to the technical provisions (referred to Investment Risk)
The second related to policies hold by the policyholders (referred to Operational Risk)
In addition, there was a Guarantee fund in a minimum amount to meet the entire obligation to the policyholders.
One third of the Minimum Solvency Margin was compared with the guarantee fund to fit the minimum guarantee fund. It involved:
A: Minimum Solvency Margin (or Required Solvency Margin) =
4% mathematical reserves
+
0.3% capital sum at risk
B: Guarantee fund = 800,000 ECU in 1979
C: Minimum Guarantee Fund = max (1/3 A, B)
Compare it with Taiwan’s practice. The formula for Minimum Solvency Margin was applicable for each life insurance and annuity business. But there is not a Guarantee fund regulation requirement for each insurance company in Taiwan. The regulatory objective on solvency is achieved by the RBC ratio monitoring in period to afford the early signal warning to supervisor. If the RBC ratio is under the minimum requirement, then the regulators will trigger an intervention to insurer unless it is improved up to the rational level.
The basis mentioned above were simple, easy to manage and understand, but did not consider risks directly. When the increasing in market complex and rising of customer protection needs are more development, a new solvency regulation framework is more urgent to be built up all over the world.
The assets could be valued at historical costs as well as market value. Hence, asset valuation was not harmonized to the real situation. So, in effect prudence did not really work in the insurance company. The disadvantages of this solvencyⅠregime were examined in the Müller report published in 1997. Changes to the Life Directives were, however, quite small. In life insurance, the directive stated that the available solvency margin to cover the technical provisions must be in good quality. It further specified the solvency margin for unit-linked contracts.
Similar to the solvency I, RBC can define each asset by its risky nature properly but cannot reflect the total obligations change under the variation of economic and environment that an insurer should reserve to meet in protecting policyholders. Both of RBC and Solvency I provided a simple device to regulate insurer solvency. It has improvements over the early day regulations, but still simple. A positive outcome was that it made the compliance management easy and inexpensive.
In spite of its relative simplicity, they did increase the protection of the policyholders. That explains the reason why the system performed well over the years.
2.1 Transition of Solvency I
Müller report found the existing structure of solvency margin satisfactory, but still had some suggestions were made for further improvement. There were:
The minimum guarantee fund should be reviewed and updated at regular 5 year periods
- Minimum requirement was increased to 3 million euro - to be updated in the future with EU consumer price inflation.
The regulations should not only look at the solvency margin, but also at the composition of the margin and the guarantee fund.
The risks identified to be classified as:
- Technical (insufficient premiums, mortality, morbidity, interest rate – that would perhaps affect discontinuance rates, reinsurance etc.)
- Investment (depreciation, liquidity, matching, interest rate including reinvestment, derivatives etc.)
- Non-technical (management, 3rd party credit risk, regulations etc.)
Solvency I norms provided higher protection to policyholders. A few of the significant features were:
Solvency I set that solvency requirements should be met at all times and not just on the date of the latest balance sheet.
Permanent health insurance needed additional capital over and above what was specified in the earlier regime.
Insurance companies were required to have an additional solvency margin for unit-linked contracts (firm bears no investment risk) where the allocation to management expenses was not fixed further than 5 years.
Another important difference was that the member jurisdictions were free to set more strict requirements than those specified in the Directive, if they preferred to do that.
2.2 Need for further development
However, under these rules, important changes had taken place in the insurance industry, creating the need to adapt the new solvency regulations properly.
The equity markets were well-built in the recent decades helping insurance companies.
Fall in interest rates making it difficult to meet the guaranteed returns.
Increase in Life expectation.
Increase in the frequency of high impact events more often than ever.
Some paper for Solvency I had already indicated the need for a better system that an insurance company is exposed his risk to a broader way. Solvency I had already moved for the development of a more sophisticated and holistic approach in Solvency II. Another factor which driven reforming of the solvency regulation was the fact that some other countries like the U.S. had already started the move towards a risk based capital system. At the same period, Taiwan had adopted a RBC system towards the insurance industry monitoring in this decade. Like the Solvency I cannot fulfill the huge economic environment change, RBC system also need a new modification to meet the whole world trends.
In 1999, at a meeting of the Insurance Committee (IC) it was agreed that an overall review of the financial position of an insurance company should be done. This review was to include earlier ignored risk classes (e.g. ALM risk, Operations Risk etc,) – Solvency II committee was born as a result of this decision.
3 Solvency Ⅱ – an ongoing regime in EU countries
European market has stepped to adopt a principles based approach for insurer solvency. Solvency II is a new, risk-sensitive system for measuring the financial stability of insurance companies in EU. It is intended to provide greater protection for policyholders and stability for financial markets by providing insurance supervisors with better information and tools to assess the overall solvency of insurance companies .
Before it is fully implemented, Solvency II is expected to conduct in large scale changes in product portfolio, operations as well as the reporting requirements of insurance companies.
3.1 What has changed?
The fundamental change of Solvency II is in the approach from rule based to principle based. Regulations are being draft from a rules-based set to a risk-based one. While the two main regulation jurisdictions, EU and the U.S., attempt to reach the corporate structure in solvency requirement. RBC structure used in Taiwan should have been change towards the Solvency corporate results. The mitigation of the two frameworks seems towards a cooperative way, but still in process and need times to harmonize.
A traditional approach to capital adequacy and solvency assessment based on static accounting results is limited in scope. It limited to the balance sheet. A “Risk based solvency assessment” involves considering the risks exposed to these risks while addressing the capital needs. The principles on capital adequacy and solvency of insurers as lay down by IAIS 14th principles. One of the principles (#6) suggests that “Capital adequacy and solvency regimes have to be sensitive to risk”. This means that the solvency margin should also consider risks that have not been adequately reflected in this valuation.
Several differences could be observed between Solvency II and Solvency I
The Required Solvency Margin has been replaced by the Minimum Capital Requirement (MCR).
MCR is required to be calculated at least once a quarter and reported to the supervisory authorities.
Minimum MCR has been fixed as 2 million Euros (the guarantee fund has been replaced by MCR).
The MCR acts as the safety net – it is the level below which the supervisory intervention triggers off.
An additional capital requirement called Solvency capital requirement (SCR) is the target level of capital. This is the starting point of calculation of the adequacy of the quantitative requirements.
SCR can be calculated using standard formula or internal model
MCR and SCR are calculated separately. MCR uses the technical provisions – risk margin. The factors are applied to the capital sum at risk with a minimum floor (similar to the guaranteed amount under earlier regimes)
Assets Liabilities
Available Capital
Available Capital (Free)
Available Capital (locked) SCR - MCR
MCR
Assets covering technical provisions Risk Margin Technical Provisions
Best Estimates (Liability)
3.2 Solvency II and RBC both are sensitive to risk
The new Solvency II norms provide a risk-sensitive calculation of the capital requirement in the form of the Solvency Capital Requirement (SCR). Companies are not expected just to fulfill with additional limits on capital requirements. As illustrate below, the SCR is used to meet up capital charges based on specific risks rather than limits based on strict rules. On the contrast, RBC ratio appraise on the assets to reflect the reality of all the asset items hold by an insurer on a risk-based approach is also an risk sensitive consideration.
3.3 Solvency II is “principles based “approach
Solvency norms are classified into two broad categories:
1. Rules based on well defined factors to Accounting basis. The factors are clearly defined and the rules on the factors need to be applied are clearly defined.
2. Principles Based approach to valuation of liabilities is specified by general solvency principles and does not have strict rules. The more detailed methodology is left to the judgment of the insurer as long as it is consistent with the principles set out.
RBC ratio and the insurance law addition regulation in Taiwan were likely to the mixed of the two solvency regulation categories. Insurance industry was directly regulated by the insurance law in assets allocation, liability reserve, investment restricted. On the other hand, RBC has been put into the assets monitoring in an indirectly way to supervise the insurance industry. But the Solvency II norms are more “principles based”. Recognizing the need to set up a regulatory approach that is more flexible and adaptive to the dynamic market conditions, the Solvency II directive follows the Lamfalussy procedure (used for the regulation and supervision of the EU securities market).
This procedure ensures that the new solvency regime is able to keep tempo with the future global market and technology developments in the insurance industry as well as harmonization with new promising accounting standards.
Does Taiwan’s insurance regulation framework need a practice procedure like the Lamfalussy procedure? Is it flexible enough to meet the world trends to the solvency? As the necessity of single standard in the insurance solvency framework to fit all over the insurance industry being a global mission for each jurisdiction, Taiwan’s regulators seems have to follow a similar thinking procedure but in some modification to put into practice in our insurance industry. IAIS also had been engaged in a long run to mitigation the uniform solvency regulation among the EU’s member jurisdictions. It seems still ambiguous to reach the final conclusion, insurance industry in Taiwan environment runs a vary portfolio with other countries. How to fulfill the new structure on solvency framework promoting in EU will be a big challenge in Taiwan. So maybe doesn’t be hurry to embed the Solvency II norms will be a better way for us, QIS (quantitative impact studies) in EU constant responses the problems or difficulties in applying for EU member companies. The way to harmonization on Solvency II still needs more efforts.
3.4 Technical provisions and risk margins
The solvency norms confirmed that Technical Provisions should be “adequate in respect of the entire business of the insurance company. The Technical Provisions should be set in a prudent manner, with prudent assumptions for interest rate, demographic factors and allowances for costs.” Industry practice in most countries is that the Technical Provisions have typically included margins for prudence.
However, when there is no division between best estimates and risk margin, the information is not transparent enough either for the regulator or for management decisions to understand the original assumptions.
Solvency II norms require the insurance company to report the best estimates and the risk margins separately. This is a major difference between the earlier solvency norms and Solvency I. Under Solvency II, the margin above is not just a “prudent actuarial margin”. It is a margin that is determined using the principle of “return that the investor would expect for bearing the uncertainty or risk associated with the cash flows.”
3.5 Calculation of SCR and Risk Margin
Under Solvency II, there are two levels of capital requirements that are different and be calculated separately. SCR is calculated using best estimate value of liabilities, the calculation of risk margin using Cost of Capital approach (recommended by the directive) takes the SCR for future years as an input. In that sense, CEIOPS (“Committee of European Insurance and Occupational Pensions Supervisors”), a key stakeholder in the drafting process of Solvency II has very clearly avoided the problem of “circularity”. Some significant features are:
Best estimate is gross of reinsurance
Best estimate of the liability is using the cash flow approach; if any options or guarantees exist and can be hedged by suitable financial instruments (derivatives), then the cash flow will be separated as hedgeable and non-hedgeable.
Risk margin is calculated using CoC and net of reinsurance
The risk margin shall be calculated only for the non-hedgeable(In practice, most of the life insurance risks are non-hedgeable).
CoC calculation includes underwriting risk, operational risk for existing business and counter party default for ceded reinsurance. It excludes market risk
3.6 Calculation of MCR
Under Solvency II norms, in order to maintain the continuity with the existing solvency measures, the approach towards MCR is based on a combination of the technical provisions (excluding the risk margin) and sums at risk. Some factors are increased to reflect the fact that the existing solvency norms use technical provisions with margins while under Solvency II, MCR calculation is done on best estimates excluding the risk margin.
4 EU countries being at what extend in Solvency Ⅱ
Before the discussion about how far or how fast Taiwan should be start on the new solvency framework. We need to survey the main EU countries at what extend to reform their existing structure on solvency.
Most countries in the EU recognized the need to enhance their solvency assessment frameworks. The following sections discuss the existing frameworks in three main countries – UK, Switzerland and Netherlands and their moving differences towards Solvency II.
After look at these variation developments to fulfill the solvency Ⅱ. We would more recognize that Taiwan needs to stay for a while, thinking what the most suitable solvency structure should be adopted for our country.
4.1 FSA and Solvency II
The capital requirements under Solvency I was considered to be non-risk sensitive and not enough by the British Financial Services Authority (FSA). However, they also knew that a detailed study that was a requirement for the future risk-based system under Solvency II was not likely to happen in the near future. The FSA adopted an alternative approach whereby the firms were expected to hold a level of capital (over and above the MCR) that reflects the nature and volume of the insurance company’s business.
The FSA adopted a twin-peak approach. For life insurance companies, this aimed at establishing the missing link between provisioning for liabilities and capital requirements for “with profits” business and potential future bonuses. It helped in determining whether the company needed to hold additional “top up” capital over and above the Mathematical reserves to cover the potential future bonuses.
4.2 SST and Solvency II
The Swiss Solvency test (SST) was introduced in 2003. It involves the calculation of a Minimum capital and a Target capital. The minimum solvency capital is calculated based on the statutory balance sheet and does not depend upon the company’s specific exposures.
There are standard models for calculating the market, credit and insurance risks. The risks and events that are not covered by the standard models can be modeled using adverse scenarios which need to be aggregated with the standard models.
The SST values all assets and liabilities market consistently . Consistency is the hallmark of SST. SST also considers Operational risk under Pillar II on the same lines as FSA.
Companies are allowed to choose between standard models and internal models. The internal models need to be tested under pre-defined scenarios.
While large insurance companies were to fulfill with SST as of 2006, insurance groups, reinsurers and small companies need to comply till 2008. On the other hand, operational details under Solvency II are still developing. So one needs to “wait and watch” to see how the Solvency II aspects map to the SST directives.
It would be more challenging for supervision of groups and group level SCR. Considering that under Solvency II, the internal models require single approval for Groups (consolidated business); consistency of approach across jurisdictions would be the biggest challenge. Model verification by the supervisors would be the hardest task. In addition, for companies that adopt internal models, the model has to be an inherent part of the company’s management and internal processes. This is to say that the models used for regulatory purposes and management needs should be linked.
4.3 Netherlands and Solvency II
The Dutch system proposes to introduce a supervisory regime that aims at matching with the statutory financial statement i.e. there should be only one set of accounts for accounting and solvency purposes.
The realistic values of insurance liabilities consist of a best estimate plus a risk supplement. The risk supplement can be calculated using an internal model and has to be stochastic. The margins are to be calculated separately for separate risk groups.
The Dutch system does not currently do any quantification of Operational Risk though there is an intention to include it in future.
5 Solvency Ⅱ timeline for EU countries
Though the timeline for compliance looks a distant 2012, insurance organizations need to sketch out their action plans as they may meet a few challenges during implementation. The boundaries have been drawn with the draft directive.
5.1 Challenges related with Models.
QIS2 responses show that many Insurers took more time than estimated. It clearly indicates that the companies are merely to deal with issues related to SCR calculation, Data issues etc. Insurers can choose for either a standard model, internal model or partial model (a combination of both internal and standard model) for SCR calculation. Companies going the internal model way need to get approval from the regulators. The development and approval process could be difficult because the sophisticate of various models.
Companies will perform sensitivity analysis and stress tests to do both qualitative and quantitative review of various risks. Small insurers and niche players, with their limited modeling capabilities, may face higher capital requirement pressure since their portfolios may not reflect the market reality.
Companies need to fill the gap between complex statistical terms and information technology to build robust models. The model needs to be internalized and properly understood by the key management decision makers. There could be dangerous that a complex model is interpreted differently by different people in the company. It is necessary that there is a common understanding of the internal model adopted (between the CEO, CFO, CRO, Appointed Actuary ...). The senior management has to ensure that proper review is done at times to ensure that the model continue to be relevant as the economic and commercial environment changes.
The models need to be approved by the supervisors. From the supervisor’s perspective, it would be almost impossible to formally verify each and every model. The assessment of models would rely heavily on industry best practices and supervisors’ experience.
In addition, the internal models have to be transparent to the public in a manner that is easily understood by a knowledgeable person. The basic methodology and approach should be disclosed to the public.
5.2 The IFRS prospects
The challenge is to bring together between IFRS Phase II and Solvency II in the areas of Asset Valuation, Liability Valuation and Disclosure. There are differences under two major categories - Technical provisions and Disclosure
Technical provisions: Though there are agreements between Market consistent approach towards provisions, best estimate of liability and use of discounted cash flow in valuation basic differences come from the definition of insurance itself, treatment of diversification benefits and guaranteed benefits under insurance contracts.
Disclosure: Greater transparency, higher emphasis on risk management and sensitivity testing are some of the similarities between IFRS Phase II and Solvency II. Major differences come from the reporting level, definition of insurance contracts and reporting materiality to the supervisor.
5.3 Risk Management
CEIOPS has set its expectations about managing and reporting various risks by insurers. Multiple stakeholders from the insurance industry have raised concerns.
There are indications that the stricter risk management standards to be applied under Solvency II. Risk management consideration needs to be embedded.
Operational risk was the difficult to comply with during QIS responses from the member companies. But it plays a vital role in the Solvency II regime. EU directive 2006/48/EC includes a standard approach and an advanced measurement approach for operational risk. It touches on fraud, operational risks, marketing and distribution risks, legal risk and staff related issues. Leaving this could prove to be a costly mistake from the organization.
The documentation may become complex with so many risks to report. There should be an attempt to simplify the reporting procedure.
5.4 Diversification Challenges
Diversification at various levels of business brings about the benefits of reduced capital requirement. Aggregation of results at the group level (banks and insurance) will bring down the cost of capital. Aggregation at the LOB (insurance) level will help the insurers a reduction in the capital. Diversification, however, is not without challenges. The following are some of the key challenges:
The possibility of a subsidiary getting a lower rating compared to the group level rating would badly affect the capital requirements within the group.
Supervisory cooperation is very important for Solvency II to the relationship between the group supervisor and solo supervisors to ensure a supervisory union.
Smaller insurance firms / single line insurance firms may face potential disadvantage from the lack of diversification benefit and have to raise additional capital compared to a similar subsidiary of a larger group.
6 Conclusion
The new directive for Solvency II has already been released. It introduces a SCR (Solvency Capital requirement) that is different from the target levels that exist in most countries. The SCR is a requirement that reflects the company’s risk profile. The Directive also sets out a Minimum Capital Requirement (MCR). Falling below the MCR will trigger an intervention from the regulators. It should be calculated quarterly using a simple and robust formula on the principles-based.
Given the various levels of maturity and complexity at the member countries, implementing the directive would be a challenge. Insurance companies would need to bring together and thought out action plan to ensure towards compliance. One of the biggest challenges in moving towards a “principles-based” approach is the additional responsibility that all stakeholders within the companies (senior management, board etc.) and regulator (sufficient seniority and ability to engage with the senior management and board) have to ensure obedience to the principles of solvency supervision.
This new framework on solvency regulations will certainly be a benchmark to Taiwan in monitoring domestic insurance industry and harmonizing with the world trends. It is still developing and continuing transform to make it acceptable and workable. Challenges mentioned above constantly existing even in three main EU member jurisdictions, it would forms very many dissimilar practices in compliance level among the member countries, jurisdictions, and insurance companies because the various reorganization and adopt principal-based free structure design. As the reasoning, solvency regulation in Taiwan is more stable than the EU’s confusing development. Regulators though facing the growing need to a new risk-based structure to protect the policyholders. A smoothly moving towards reform a new, has been examined and incurred fewer impact, solvency structure is the right way to future.
An overview of Omnibus Clauses
An overview of Omnibus Clauses
Abstract
The term “Omnibus Clauses” has been used in many non-life insurance policy forms, especially in motor insurance policy or liability insurance policy. Although the term “Omnibus Clauses” sometime exists in different type of others forms of policy clauses such as, “Additional Insured Clause” or “Definition of Insured”. The full reason of the existing of these similar clauses expanding coverage to the motorists other than the named insured is always seemed to be from the view of points of both public interests and economic thinking of minimum total external cost.
The omnibus clause section and the other insurance clauses section have been introduced in Insurance Law and Regulation, cases and materials, Fourth Edition, Kenneth S. Abraham. It is involved about the automobile insurance practices and law cases in different states of American. Law cases and problems occurred here seems less than American when we compare with the auto insurance in Taiwan’s practices.
This article are written base on Taiwan’s motor insurance policy practices and get knowledge of American insurance law textbooks. It also has been get the materials from Google, Wiki-pedia, and Law Dictionary Web-sites on internet. The author tries to introduce how the “Omnibus Clause” works from early 1980’s American to present’s Taiwan.
Keywords: Omnibus Clause; Additional Insured; Definition of Insured; Other Insurance; Drive-Other-Car Clause;
1. Introduction
The term “Omnibus Clauses” is used to define the liability insurance policies, particularly in motor insurance policies for extending coverage to vehicle users other than the named insured. These vehicle users often are known as “additional insureds.” Similar clauses are used in other types of insurance, such as public liability insurance policy and other types of comprehensive insurance policies.
There are usually not the term “Omnibus Clauses” existing in the insurance policy forms in Taiwan, it has been described as “additional insured clause” in motor liability insurance, or pointed out as “definition of insured”. For example, the broadest coverage provided by Compulsory Automobile Insurance Act of R.O.C., enacted and promulgated on December 27, 1996 states the “definition of insured” in Article 9: ”………. In this Act, “insured” means a proposer to whom an insurer extends coverage and any person using or managing the insured automobile with the proposer’s consent.” The coverage for compulsory motor insurance policy in Taiwan has been extended to the utmost scope is for the reason that assuring the public interests guarantee and indemnification to the accident victims. It can be clearly observed in the same Act in Article 1: This Act is specially adopted in order to ensure prompt basic coverage for the injured parties in automobile traffic accidents that result in injury or loss of life and to maintain roadway traffic safety. Base on the opinion, almost the same wide scope of coverage to the named insured other than the vehicle user has been adopted on motor liability insurance policy in Taiwan.
1.1 What Omnibus Clause is……..
An omnibus clause is a clause that provides that liability insurance for the designated automobile applies to the named insured, any member of the insured's household, and to any person using the automobile with the insured's permission, provided the use was within the scope of permission.
http://en.wikipedia.org/wiki/Omnibus_clause
Omnibus clause 1) an automobile insurance policy clause which provides coverage no matter who is driving the car. 2) a provision in a judgment distributing the estate of a deceased person, giving "all other property" (not specifically mentioned) to the beneficiaries named in the will.
http://legal-dictionary.thefreedictionary.com/omnibus+clause
Omnibus Clause 1)A part of an automobile insurance policy which aims at providing insurance coverage to any other person using the automobile with the permission of the insured whether or not their names are mentioned in the policy. 2) A condition that is agreed upon in a judgment to give away the entire property of the dead person to all the people and entity named in the will.
http://legal-explanations.com/definitions/omnibus-clause.htm
Omnibus clause: A clause in an automobile liability insurance policy that serves the purpose of giving "additional assureds, other than the person named in the liability policy as assured, with certain specified limitations, the benefit of the policy. . . . It extends protection to one ‘permitted' to use the car, although the ‘assured' may not be liable for the accident under the doctrine respondents superior. The object of such clause is to cover the liability of the operator of the car as unnamed assured, and to protect any person so injured by giving him a cause of action against the insurer for injuries deemed by law to have been caused by the operation of the car." 30 So. 2d 123, 125. Statutes have been passed in some jurisdictions requiring the inclusion of omnibus clauses for the protection of automobile accident victims. See 84 N.W. 2d 84. Also applies to a clause in a will or distribution decree passing all property not specifically mentioned or known of at the time.
http://www.answers.com/topic/omnibus-clause-1
Omnibus Clause: An agreement in most Automobile Liability policies and some others that, by its definition of insured, extends the protection of the policy to others within the definition without the necessity of specifically naming them in the policy. An example would be a policy which covers the named insured and "those residing with him."
1.2 Omnibus Clause in insurance practices
Omnibus clause provides coverage for persons who have some relationship to the named insured. For example, motor liability insurance here includes a clause stating that “covered persons” means in addition to the named insured and the family members or others.
How to define that “who are the additional insureds?” is a discussible issue. What kind of relationship to the named insured could be treated as “additional insured?” Whether the coverage should expand or not to all of the insured vehicle users in motor insurance policy in Taiwan?
Generally, motor liability insurance policies will expand coverage for additional insured, which use the insured vehicle with the permission of the named insured. The reasons to expand coverage other than the named insured at least have both economic and public interest’s reasons. One should desire to purchase a motor insurance policy could also cover his (her) family members when they use the vehicle, such as his wife (her husband) and children. Furthermore, one also feel an obligation to the owner when one use other persons’ vehicle(property), similar to persons feel responsibilities or feel as vehicle owner in regard to the good use of the vehicles. In fact, as a best practice reason, many potential troubles could be avoided by extending coverage to permitted users as motor insurance’s insured. Of course, you also can have options to choose the particular motor insurance policy with the “limited user” clause to down the premiums for a narrower coverage only affect to the named insured. Under the term, there will at best be a 35% payment down on this type of policy if you apply the policy with “limited user” clause afford by Cathy Insurance company or some others –not all – motor insurance companies.
The omnibus clauses in motor liability insurance are also useful to the interests of accident victims. It make the permitted users can afford the indemnification for accident victims. It is an important factor in legal requiring of omnibus clauses in liability insurance coverage. Moreover, the public interest for assuring compensation for accident victims has also affected the coverage scopes.
There are some issues about the extension of different coverages, -including compulsory motor liability insurance, uninsured vehicle users insurance, and under-insured motorist insurance . From the point of the social public benefit policy, it is fully meet with the social interest in assuring of indemnification for motor accident victims. Nevertheless, the scope of coverage afford by omnibus clauses has been the subject of many legal events.
1.3 Example from JSTOR Colombia Law Text
CONFLICTING “OTHER INSURANCE” CLAUSES IN AUTOMOBILE LIABILITY POLICIES
Plaintiff insurance company issued to A an automobile liability policy which contained a clause covering him while driving cars other than his own. The clause provided that this “Drive-Other-Car” insurance was “excess” should A have other insurance available. Defendant company issued to B a liability policy on a Mercury car with an “omnibus clause” covering any person using the Mercury with B’s permission. The policy further provided, however, that this “omnibus clause” was not applicable to borrowers of the car if they have other insurance available. A, while driving the Mercury with B’s permission, negligently collided with another car, and each insured conceded liability in the absence of other’s policy. Plaintiff sought a declaratory judgment that defendant’s coverage was available to A, and, consequently, plaintiff’s “Drive-Other-Car” insurance was excess. Defendant contented that its “omnibus clause” was inapplicable, since plaintiff’s policy constituted “other insurance” available to A. On appeal from a judgment for plaintiff, held, reversed. The “other insurance” provisions of the two policies, being mutually repugnant, must be regarded and the loss prorated. Oregon Auto. Ins. Co. v. U.S. Fidelity & Guarantee Co., 195 F.2D 958(9th Cir. 1952).
A loss covered by two or more insurance contracts frequently results because one individual has two substantially identical policies, policies which overlap, or both floater and specific policies. There is a similar duplication of insurance covering a driver’s negligence where the owner’s policy has an “omnibus clause” and the driver carries “Drive-Other-Car” insurance.
1.3.1 Observation
Limitation on “Omnibus Clause” only keeps in force in the absence of other insurance by the motorist violates the public interest policy assuring compensation to the accident victims. It is not suitable for the limitation on the coverage by the “other insurance clause” while the trend to the motor liability insurance coverage is going wide and board to the injured victims. Drive-Other-Car clause mentioned beyond still unavailable in motor liability insurance market in Taiwan, nevertheless, it is possible adopted by insurance company in the future if necessary for the motorist responsibility. The duplication of two or more insurance coverage will be troublesome in determinate which coverage is primary coverage and which will be excess, or referred to prorate the loss. As the “omnibus clause” provided coverage is at best afford indemnification for victims. The Drive- Other-Car insurance think as “excess” and the omnibus clause insurance as primary should be the best arrangement.
2. Omnibus Clauses for Users of Vehicles; Problems of Interpretation
2.1 Generally
Many of the disputes about the scope of coverage provided by an omnibus clause are related to an express or an implied permission. Court is hard to determine whether the named insured had limited on the purpose or the time during for the use of the vehicle. Judge is troublesome to find the truth on permission or not on the using of an insured vehicle when an accident occurred. Different court events have developed to involving these issues. The results of such cases can be classified into the following three groups:
First, judgments strictly to explain the omnibus clause, and requiring proof that the use which given by a named insured was within the scope of the permission (referred to as a “strict” rule). This rule has also been adopted by the motor property damage insurance in Taiwan, one used the insured vehicle occurred an accident should proof that the usage was within the scope of the permission by the named insured.
Second, judgments freely to explain the omnibus clause, and generally concluding that almost any use is within the coverage only if the vehicle was being used by a person over the named insured’s purpose(referred to as a “liberal” rule). This rule has been adopted by the motor liability insurance in Taiwan, one used the insured vehicle occurred an accident seldom be asked to proof that the usage was within the scope of the permission by the named insured. The cost of determine whether the coverage provided by omnibus clause or not has been reduced effective under this rule in Taiwan’s motor liability insurance market.
Third, judgments adopting a “minor” versus “material” different standard under which coverage is only denied when there was a material violation of the scope of permission by a named insured (referred to as a “minor deviation” rule).
These classifications are rough, and there are differences in use by courts. It is hard to comment which lines of decision would be the best. Maybe “minor deviation” rule to be the better one, which take a position between the two extreme approaches. It is flexible to the factual situation, too. Under this rule the relationship of the parties and the scope of the permission are very important. Clearly, the same permission to use a vehicle by a named insured should be different to a regular employee of a company and to a one-time user. Similarly, the permission given to a named insured’s children or a friend would be different from the one-time permission to a casual person. The principal the minor deviation rule is that each case is stand on its own facts.
However, the disadvantage of such an f1exible rule is the higher cost of finding the fact. Because this approach often needs a court to determinate both permitted or not and the scope of permission.
On the other principle of flexibility, Taiwan adopts different approach on the coverage provided by omnibus clause between motor property damage and third party liability insurance seems more flexible on assuring the victims’ indemnification of a vehicle accident. That has been successful avoided the disadvantage of the higher cost of finding the fact while assuring the victims’ interest of the social responsibility.
The relationship between a named insured and a driver is very important in determining whether the driver’s use of a vehicle was within the scope of permission. For example, a broad permission is much more possible for non-business purposes than the use for business purposes. Thus, when an employee either uses an employer’s car for personal purpose or allows a third person to use the car, it is generally assumed to be lack of the employer’s permission and therefore out of the scope of coverage.
2.2 Coverage for a Permittee’s Permittee (Re-permittee)
If a named insured gave permission to one person, and that person permitted someone else to use the car, that occur dispute of “repermittee to use the car” if within the coverage or not?
Such cases is usually referred to as a “Permittee’s Permittee” or the “secondary permittee”. Usually, the secondary permittee was given permission from “original permittee” and lack of the permission of the named insured.
When courts determine coverage questions on “permittee’s permittee” have to face a number of factual questions, such as:
Whether the original permittee allowed repermission from a named insured to use the vehicle?
Whether the original permittee clearly consented to the third person’s use of the vehicle?
Whether the nature of the use of the vehicle was within the scope of the permission approved?
Whether the named insured authorized the “permittee’s permittee” to use the vehicle?
Whether the named insured, if asked, would approved the repermittee to use the vehicle?
The problems involve by these questions are quite troublesome. There are some guidelines below.
When a named insured disagree the use of a vehicle by third persons, generally the permittee’s permittee is not covered when using the vehicle. However, if the named insured’s original permission is broad in scope and especially if the original permittee is expressly allows others to use the vehicle; courts generally will hold that the repermittee is covered as an additional insured even when the vehicle is used for personal purpose.
When an original permittee was neither authorized others to drive a vehicle nor prohibited from doing so, courts have often focused on the use purpose when the accident occurred. If the secondary permittee’s use was for the benefit of the original permittee, courts generally conclude that coverage should be extended to the secondary permittee. If the evidence shows that the vehicle was being used only for the second permittee’s personal purposes the courts have usually denied coverage.
Although there are difficulties to determinate the coverage scope on repermittee’s use of insured vehicle. These rules should always consistent with the goal of public interest of providing accident victims’ indemnification, which is an important consideration by courts. Review our motor insurance policy clauses; it has been provided board coverage on liability insurance by the additional insured clause, and more limitation scope and narrow coverage on motor property damage insurance. That also is consistent with the goal of providing accident victims’ benefit of indemnification.
A rule always extend coverage to a permitttee’s permittee may not only disobey the real word of insurance policy, but also may be in conflict with actual agreements. It would be a clearly standard both on the scopes to the original permittee and to the repermittee. Motor insurance policies, in Taiwan, have quite different approach to this issue which would always extend coverage to a permitttee’s permittee (re-permittee). Generally, the practice would extend coverage to a permitttee’s permittee in motor liability insurance policy (include compulsory motor liability insurance policy) but adopting a strictly rule in applying the omnibus clause in motor property damage (comprehensive) insurance policy. The development seems to be affected by the public interest in favor of assuring indemnification for vehicle accident victims.
2.3 Injury to a Named Insured by an Additional Insured
Sometimes a named insured covered by a liability insurance policy has a tort claim resulting from the negligence of an additional insured under the named insured’s policy. For example, an owner of an insured vehicle may lend it to another person. He also may be injured by the borrower. One of the cases involves with a question in Massachusetts . The liability insurance claim involved was the state’s compulsory automobile insurance. The law, the compulsory coverage was provided indemnity for the insured and any person responsible for the use of the insured’s vehicle. It consents against loss to pay damages to “others” for bodily injuries under the insurance policy. The Massachusetts Supreme Judicial Court concluded that the term”others” could not be included the named insured.
The judgment beyond was then applied as an example by the Connecticut Supreme Court . In this Connecticut case, Chief Justice Maltbie agreed in the result, but indicated that he would have reached a different result. He remarked: “The word ’others’ …….means persons other than the one invoking the protection of the policy, whether it be the named insured or one who is operating the car with his consent. “ This decision had affected the opinion that “the others covered by motor liability insurance should not exclude the named insured on the accident when the insured motor was used by an additional insured on the permission on the named insured.”
A majority of the decisions on this point in others courts support the decision by Chief Maltbie. Furthermore, a new clause in the 1955 revision of the motor insurance policy forms strengthens this conclusion. In the revised policy forms, the term “the insured” is used to each claim, and then a “named insured” is not an insured at all the claim in tort against an additional insured. The concept seems still weak in Taiwan’s insurance practices. Coverage provided by motor liability insurance always excludes the coverage to the named insured under the reason of high risk of moral hazard. It is obviously unfair to the named insured when he was injured by his own insured vehicle by the operating of an additional insured.
For the most basic solution to the complicated situations in whether a named insured under coverage or not. Some insurance policies include a clause clearly declaring that the bodily injury liability coverage does not apply to bodily injury to an insured. Such a limitation in the insurance contract, coverage may be denied on the basis of the exclusion.
2.4 Comment: An Appraisal of Omnibus Clauses
Expanding the scope of coverage provided by liability insurance policies has been the trend to Taiwan and the whole of the world, particularly in regard to motor liability insurance.
(1) An increased demand of insurance purchasers to have their policies extend broadly to others,
(2) An increasing recognition by both court decisions and judgments, of assuring indemnification for victims in motor accidents, and
(3) A decrease worries of insurers about the costs of providing extend coverage with omnibus clauses.
In the development of more extensive protection, insurers still have not pay attention to shortage of the omnibus clauses in motor insurance policies. Omnibus coverage focus on the existence of “permission”---that is permission to use an insured vehicle is the only standard for determining the scope of insurance coverage. This approach makes a lot of disputes. Furthermore, coverage disputes focus on permission usually involves arguments, and frequently involve large costs to resolve coverage questions.
The expenses to define “permission” ---actual or assumed--- could be avoided most of argument on whether the driver was an insured. For example, coverage could be provided for all persons using an insured vehicle unless the operator’s use to theft or other crimes of the vehicle. Although the question whether a theft had occurred may still be troublesome, it will arise in relatively few problems. Accordingly, the disputes would be significantly reduced. This approach is now construed on motor liability insurance policies in Taiwan. And few disputes and litigations occurred in the point of “permission”.
There are some reasons why extent of liability coverage provided by omnibus clauses do not increases costs produced by vehicle users. First, the savings in court expenses should partially offset the claims produce by extensive coverage from the additional insureds. Second, victims in such accidents usually are at least partially receiving compensation from some source-motor compulsory insurance, national health insurance, or social benefits,-other than compensation from liability insurance. The costs of these events are finally paid by the whole society, by all vehicle users, or by individuals. Providing more compensation for victims by extensive scope of liability insurance will only change the allocation of accidents costs. Although expansion of omnibus clause coverage would probably produce higher motor insurance costs, the net costs might not be higher to the conflicts among liability insurers, their insureds, and accident victims.
Abstract
The term “Omnibus Clauses” has been used in many non-life insurance policy forms, especially in motor insurance policy or liability insurance policy. Although the term “Omnibus Clauses” sometime exists in different type of others forms of policy clauses such as, “Additional Insured Clause” or “Definition of Insured”. The full reason of the existing of these similar clauses expanding coverage to the motorists other than the named insured is always seemed to be from the view of points of both public interests and economic thinking of minimum total external cost.
The omnibus clause section and the other insurance clauses section have been introduced in Insurance Law and Regulation, cases and materials, Fourth Edition, Kenneth S. Abraham. It is involved about the automobile insurance practices and law cases in different states of American. Law cases and problems occurred here seems less than American when we compare with the auto insurance in Taiwan’s practices.
This article are written base on Taiwan’s motor insurance policy practices and get knowledge of American insurance law textbooks. It also has been get the materials from Google, Wiki-pedia, and Law Dictionary Web-sites on internet. The author tries to introduce how the “Omnibus Clause” works from early 1980’s American to present’s Taiwan.
Keywords: Omnibus Clause; Additional Insured; Definition of Insured; Other Insurance; Drive-Other-Car Clause;
1. Introduction
The term “Omnibus Clauses” is used to define the liability insurance policies, particularly in motor insurance policies for extending coverage to vehicle users other than the named insured. These vehicle users often are known as “additional insureds.” Similar clauses are used in other types of insurance, such as public liability insurance policy and other types of comprehensive insurance policies.
There are usually not the term “Omnibus Clauses” existing in the insurance policy forms in Taiwan, it has been described as “additional insured clause” in motor liability insurance, or pointed out as “definition of insured”. For example, the broadest coverage provided by Compulsory Automobile Insurance Act of R.O.C., enacted and promulgated on December 27, 1996 states the “definition of insured” in Article 9: ”………. In this Act, “insured” means a proposer to whom an insurer extends coverage and any person using or managing the insured automobile with the proposer’s consent.” The coverage for compulsory motor insurance policy in Taiwan has been extended to the utmost scope is for the reason that assuring the public interests guarantee and indemnification to the accident victims. It can be clearly observed in the same Act in Article 1: This Act is specially adopted in order to ensure prompt basic coverage for the injured parties in automobile traffic accidents that result in injury or loss of life and to maintain roadway traffic safety. Base on the opinion, almost the same wide scope of coverage to the named insured other than the vehicle user has been adopted on motor liability insurance policy in Taiwan.
1.1 What Omnibus Clause is……..
An omnibus clause is a clause that provides that liability insurance for the designated automobile applies to the named insured, any member of the insured's household, and to any person using the automobile with the insured's permission, provided the use was within the scope of permission.
http://en.wikipedia.org/wiki/Omnibus_clause
Omnibus clause 1) an automobile insurance policy clause which provides coverage no matter who is driving the car. 2) a provision in a judgment distributing the estate of a deceased person, giving "all other property" (not specifically mentioned) to the beneficiaries named in the will.
http://legal-dictionary.thefreedictionary.com/omnibus+clause
Omnibus Clause 1)A part of an automobile insurance policy which aims at providing insurance coverage to any other person using the automobile with the permission of the insured whether or not their names are mentioned in the policy. 2) A condition that is agreed upon in a judgment to give away the entire property of the dead person to all the people and entity named in the will.
http://legal-explanations.com/definitions/omnibus-clause.htm
Omnibus clause: A clause in an automobile liability insurance policy that serves the purpose of giving "additional assureds, other than the person named in the liability policy as assured, with certain specified limitations, the benefit of the policy. . . . It extends protection to one ‘permitted' to use the car, although the ‘assured' may not be liable for the accident under the doctrine respondents superior. The object of such clause is to cover the liability of the operator of the car as unnamed assured, and to protect any person so injured by giving him a cause of action against the insurer for injuries deemed by law to have been caused by the operation of the car." 30 So. 2d 123, 125. Statutes have been passed in some jurisdictions requiring the inclusion of omnibus clauses for the protection of automobile accident victims. See 84 N.W. 2d 84. Also applies to a clause in a will or distribution decree passing all property not specifically mentioned or known of at the time.
http://www.answers.com/topic/omnibus-clause-1
Omnibus Clause: An agreement in most Automobile Liability policies and some others that, by its definition of insured, extends the protection of the policy to others within the definition without the necessity of specifically naming them in the policy. An example would be a policy which covers the named insured and "those residing with him."
1.2 Omnibus Clause in insurance practices
Omnibus clause provides coverage for persons who have some relationship to the named insured. For example, motor liability insurance here includes a clause stating that “covered persons” means in addition to the named insured and the family members or others.
How to define that “who are the additional insureds?” is a discussible issue. What kind of relationship to the named insured could be treated as “additional insured?” Whether the coverage should expand or not to all of the insured vehicle users in motor insurance policy in Taiwan?
Generally, motor liability insurance policies will expand coverage for additional insured, which use the insured vehicle with the permission of the named insured. The reasons to expand coverage other than the named insured at least have both economic and public interest’s reasons. One should desire to purchase a motor insurance policy could also cover his (her) family members when they use the vehicle, such as his wife (her husband) and children. Furthermore, one also feel an obligation to the owner when one use other persons’ vehicle(property), similar to persons feel responsibilities or feel as vehicle owner in regard to the good use of the vehicles. In fact, as a best practice reason, many potential troubles could be avoided by extending coverage to permitted users as motor insurance’s insured. Of course, you also can have options to choose the particular motor insurance policy with the “limited user” clause to down the premiums for a narrower coverage only affect to the named insured. Under the term, there will at best be a 35% payment down on this type of policy if you apply the policy with “limited user” clause afford by Cathy Insurance company or some others –not all – motor insurance companies.
The omnibus clauses in motor liability insurance are also useful to the interests of accident victims. It make the permitted users can afford the indemnification for accident victims. It is an important factor in legal requiring of omnibus clauses in liability insurance coverage. Moreover, the public interest for assuring compensation for accident victims has also affected the coverage scopes.
There are some issues about the extension of different coverages, -including compulsory motor liability insurance, uninsured vehicle users insurance, and under-insured motorist insurance . From the point of the social public benefit policy, it is fully meet with the social interest in assuring of indemnification for motor accident victims. Nevertheless, the scope of coverage afford by omnibus clauses has been the subject of many legal events.
1.3 Example from JSTOR Colombia Law Text
CONFLICTING “OTHER INSURANCE” CLAUSES IN AUTOMOBILE LIABILITY POLICIES
Plaintiff insurance company issued to A an automobile liability policy which contained a clause covering him while driving cars other than his own. The clause provided that this “Drive-Other-Car” insurance was “excess” should A have other insurance available. Defendant company issued to B a liability policy on a Mercury car with an “omnibus clause” covering any person using the Mercury with B’s permission. The policy further provided, however, that this “omnibus clause” was not applicable to borrowers of the car if they have other insurance available. A, while driving the Mercury with B’s permission, negligently collided with another car, and each insured conceded liability in the absence of other’s policy. Plaintiff sought a declaratory judgment that defendant’s coverage was available to A, and, consequently, plaintiff’s “Drive-Other-Car” insurance was excess. Defendant contented that its “omnibus clause” was inapplicable, since plaintiff’s policy constituted “other insurance” available to A. On appeal from a judgment for plaintiff, held, reversed. The “other insurance” provisions of the two policies, being mutually repugnant, must be regarded and the loss prorated. Oregon Auto. Ins. Co. v. U.S. Fidelity & Guarantee Co., 195 F.2D 958(9th Cir. 1952).
A loss covered by two or more insurance contracts frequently results because one individual has two substantially identical policies, policies which overlap, or both floater and specific policies. There is a similar duplication of insurance covering a driver’s negligence where the owner’s policy has an “omnibus clause” and the driver carries “Drive-Other-Car” insurance.
1.3.1 Observation
Limitation on “Omnibus Clause” only keeps in force in the absence of other insurance by the motorist violates the public interest policy assuring compensation to the accident victims. It is not suitable for the limitation on the coverage by the “other insurance clause” while the trend to the motor liability insurance coverage is going wide and board to the injured victims. Drive-Other-Car clause mentioned beyond still unavailable in motor liability insurance market in Taiwan, nevertheless, it is possible adopted by insurance company in the future if necessary for the motorist responsibility. The duplication of two or more insurance coverage will be troublesome in determinate which coverage is primary coverage and which will be excess, or referred to prorate the loss. As the “omnibus clause” provided coverage is at best afford indemnification for victims. The Drive- Other-Car insurance think as “excess” and the omnibus clause insurance as primary should be the best arrangement.
2. Omnibus Clauses for Users of Vehicles; Problems of Interpretation
2.1 Generally
Many of the disputes about the scope of coverage provided by an omnibus clause are related to an express or an implied permission. Court is hard to determine whether the named insured had limited on the purpose or the time during for the use of the vehicle. Judge is troublesome to find the truth on permission or not on the using of an insured vehicle when an accident occurred. Different court events have developed to involving these issues. The results of such cases can be classified into the following three groups:
First, judgments strictly to explain the omnibus clause, and requiring proof that the use which given by a named insured was within the scope of the permission (referred to as a “strict” rule). This rule has also been adopted by the motor property damage insurance in Taiwan, one used the insured vehicle occurred an accident should proof that the usage was within the scope of the permission by the named insured.
Second, judgments freely to explain the omnibus clause, and generally concluding that almost any use is within the coverage only if the vehicle was being used by a person over the named insured’s purpose(referred to as a “liberal” rule). This rule has been adopted by the motor liability insurance in Taiwan, one used the insured vehicle occurred an accident seldom be asked to proof that the usage was within the scope of the permission by the named insured. The cost of determine whether the coverage provided by omnibus clause or not has been reduced effective under this rule in Taiwan’s motor liability insurance market.
Third, judgments adopting a “minor” versus “material” different standard under which coverage is only denied when there was a material violation of the scope of permission by a named insured (referred to as a “minor deviation” rule).
These classifications are rough, and there are differences in use by courts. It is hard to comment which lines of decision would be the best. Maybe “minor deviation” rule to be the better one, which take a position between the two extreme approaches. It is flexible to the factual situation, too. Under this rule the relationship of the parties and the scope of the permission are very important. Clearly, the same permission to use a vehicle by a named insured should be different to a regular employee of a company and to a one-time user. Similarly, the permission given to a named insured’s children or a friend would be different from the one-time permission to a casual person. The principal the minor deviation rule is that each case is stand on its own facts.
However, the disadvantage of such an f1exible rule is the higher cost of finding the fact. Because this approach often needs a court to determinate both permitted or not and the scope of permission.
On the other principle of flexibility, Taiwan adopts different approach on the coverage provided by omnibus clause between motor property damage and third party liability insurance seems more flexible on assuring the victims’ indemnification of a vehicle accident. That has been successful avoided the disadvantage of the higher cost of finding the fact while assuring the victims’ interest of the social responsibility.
The relationship between a named insured and a driver is very important in determining whether the driver’s use of a vehicle was within the scope of permission. For example, a broad permission is much more possible for non-business purposes than the use for business purposes. Thus, when an employee either uses an employer’s car for personal purpose or allows a third person to use the car, it is generally assumed to be lack of the employer’s permission and therefore out of the scope of coverage.
2.2 Coverage for a Permittee’s Permittee (Re-permittee)
If a named insured gave permission to one person, and that person permitted someone else to use the car, that occur dispute of “repermittee to use the car” if within the coverage or not?
Such cases is usually referred to as a “Permittee’s Permittee” or the “secondary permittee”. Usually, the secondary permittee was given permission from “original permittee” and lack of the permission of the named insured.
When courts determine coverage questions on “permittee’s permittee” have to face a number of factual questions, such as:
Whether the original permittee allowed repermission from a named insured to use the vehicle?
Whether the original permittee clearly consented to the third person’s use of the vehicle?
Whether the nature of the use of the vehicle was within the scope of the permission approved?
Whether the named insured authorized the “permittee’s permittee” to use the vehicle?
Whether the named insured, if asked, would approved the repermittee to use the vehicle?
The problems involve by these questions are quite troublesome. There are some guidelines below.
When a named insured disagree the use of a vehicle by third persons, generally the permittee’s permittee is not covered when using the vehicle. However, if the named insured’s original permission is broad in scope and especially if the original permittee is expressly allows others to use the vehicle; courts generally will hold that the repermittee is covered as an additional insured even when the vehicle is used for personal purpose.
When an original permittee was neither authorized others to drive a vehicle nor prohibited from doing so, courts have often focused on the use purpose when the accident occurred. If the secondary permittee’s use was for the benefit of the original permittee, courts generally conclude that coverage should be extended to the secondary permittee. If the evidence shows that the vehicle was being used only for the second permittee’s personal purposes the courts have usually denied coverage.
Although there are difficulties to determinate the coverage scope on repermittee’s use of insured vehicle. These rules should always consistent with the goal of public interest of providing accident victims’ indemnification, which is an important consideration by courts. Review our motor insurance policy clauses; it has been provided board coverage on liability insurance by the additional insured clause, and more limitation scope and narrow coverage on motor property damage insurance. That also is consistent with the goal of providing accident victims’ benefit of indemnification.
A rule always extend coverage to a permitttee’s permittee may not only disobey the real word of insurance policy, but also may be in conflict with actual agreements. It would be a clearly standard both on the scopes to the original permittee and to the repermittee. Motor insurance policies, in Taiwan, have quite different approach to this issue which would always extend coverage to a permitttee’s permittee (re-permittee). Generally, the practice would extend coverage to a permitttee’s permittee in motor liability insurance policy (include compulsory motor liability insurance policy) but adopting a strictly rule in applying the omnibus clause in motor property damage (comprehensive) insurance policy. The development seems to be affected by the public interest in favor of assuring indemnification for vehicle accident victims.
2.3 Injury to a Named Insured by an Additional Insured
Sometimes a named insured covered by a liability insurance policy has a tort claim resulting from the negligence of an additional insured under the named insured’s policy. For example, an owner of an insured vehicle may lend it to another person. He also may be injured by the borrower. One of the cases involves with a question in Massachusetts . The liability insurance claim involved was the state’s compulsory automobile insurance. The law, the compulsory coverage was provided indemnity for the insured and any person responsible for the use of the insured’s vehicle. It consents against loss to pay damages to “others” for bodily injuries under the insurance policy. The Massachusetts Supreme Judicial Court concluded that the term”others” could not be included the named insured.
The judgment beyond was then applied as an example by the Connecticut Supreme Court . In this Connecticut case, Chief Justice Maltbie agreed in the result, but indicated that he would have reached a different result. He remarked: “The word ’others’ …….means persons other than the one invoking the protection of the policy, whether it be the named insured or one who is operating the car with his consent. “ This decision had affected the opinion that “the others covered by motor liability insurance should not exclude the named insured on the accident when the insured motor was used by an additional insured on the permission on the named insured.”
A majority of the decisions on this point in others courts support the decision by Chief Maltbie. Furthermore, a new clause in the 1955 revision of the motor insurance policy forms strengthens this conclusion. In the revised policy forms, the term “the insured” is used to each claim, and then a “named insured” is not an insured at all the claim in tort against an additional insured. The concept seems still weak in Taiwan’s insurance practices. Coverage provided by motor liability insurance always excludes the coverage to the named insured under the reason of high risk of moral hazard. It is obviously unfair to the named insured when he was injured by his own insured vehicle by the operating of an additional insured.
For the most basic solution to the complicated situations in whether a named insured under coverage or not. Some insurance policies include a clause clearly declaring that the bodily injury liability coverage does not apply to bodily injury to an insured. Such a limitation in the insurance contract, coverage may be denied on the basis of the exclusion.
2.4 Comment: An Appraisal of Omnibus Clauses
Expanding the scope of coverage provided by liability insurance policies has been the trend to Taiwan and the whole of the world, particularly in regard to motor liability insurance.
(1) An increased demand of insurance purchasers to have their policies extend broadly to others,
(2) An increasing recognition by both court decisions and judgments, of assuring indemnification for victims in motor accidents, and
(3) A decrease worries of insurers about the costs of providing extend coverage with omnibus clauses.
In the development of more extensive protection, insurers still have not pay attention to shortage of the omnibus clauses in motor insurance policies. Omnibus coverage focus on the existence of “permission”---that is permission to use an insured vehicle is the only standard for determining the scope of insurance coverage. This approach makes a lot of disputes. Furthermore, coverage disputes focus on permission usually involves arguments, and frequently involve large costs to resolve coverage questions.
The expenses to define “permission” ---actual or assumed--- could be avoided most of argument on whether the driver was an insured. For example, coverage could be provided for all persons using an insured vehicle unless the operator’s use to theft or other crimes of the vehicle. Although the question whether a theft had occurred may still be troublesome, it will arise in relatively few problems. Accordingly, the disputes would be significantly reduced. This approach is now construed on motor liability insurance policies in Taiwan. And few disputes and litigations occurred in the point of “permission”.
There are some reasons why extent of liability coverage provided by omnibus clauses do not increases costs produced by vehicle users. First, the savings in court expenses should partially offset the claims produce by extensive coverage from the additional insureds. Second, victims in such accidents usually are at least partially receiving compensation from some source-motor compulsory insurance, national health insurance, or social benefits,-other than compensation from liability insurance. The costs of these events are finally paid by the whole society, by all vehicle users, or by individuals. Providing more compensation for victims by extensive scope of liability insurance will only change the allocation of accidents costs. Although expansion of omnibus clause coverage would probably produce higher motor insurance costs, the net costs might not be higher to the conflicts among liability insurers, their insureds, and accident victims.
外部性與強制車險法律經濟分析
外部性與強制車險法律經濟分析
外部性與社會成本問題
外部性(externality)是法律學與經濟學相通的概念，生活中有許多行為產生外部性，對他人發生影響，這些影響有些是正面的：市府蓋捷運，出口距你家一分鐘，讓你身家飛漲；也有些是負的外部性：焚化爐或垃圾場總設置在落後、偏遠居民較為弱勢的地區。噪音、河川與土地污染、抽菸吃檳榔……各項妨害他人的行為都引起了或大或小的外部性，經濟學上以社會成本(Social Cost)與外部成本的概念加以解釋。
什麼樣的外部成本才需要法律介入處理呢?以二手菸的例子，吸煙會危害健康，所以對不吸煙者造成很大的外部性，菸害防治法頒布前，並無法律處理此項行為，由『道德與規範』處理，但『道德與規範』界線模糊，勉強可以解為社會大眾的共同價值觀 ；10年前，『規則』可能認為開放空間有吸煙的權利，但在密閉室內就會有人抗議，只是這樣的規則很難有效。現今還是有人在自己的領土上吞雲吐霧，受害者還是只能私下埋怨這些不尊重他人的行為，吸煙者的吸煙權利界定很不容易。
過去半世紀以來，對於外部性的研究掀起一股熱潮，因這項研究自經濟學這端架起了一座通往法律殿堂的橋樑。關於外部性的論著，首推『社會成本問題(The Problem of Social Cost)』，此文係芝加哥大學經濟學家寇斯(Coase, Ronald H)於1960年所發表，這篇文章改寫了過去幾十年來對外部性的看法，寇斯也因此得到了1991年諾貝爾經濟學獎。
強制汽車責任保險與外部性
福爾摩沙島內住著擁擠的2,300萬人，95年底統計，汽機車的數量為2,025萬輛 ，大多數人都有一次以上的購車經驗，車主就有限的資訊盤算著各項成本支出：車價、保險、稅金、停車位、油耗……等，只是當中還有些成本被忽略了，第一項重要的成本為，使用汽油同時造成了空氣污染；第二項為開車上路對第三人所造成的潛在危害 ，這項危害在95年度造成2,957筆肇事件數（當中除了82件因為行人不慎，其他均為駕駛過失）、3,096人死亡、1,298人受傷(受傷與肇事的真實數字遠遠高過於此)，這兩大成本為何會被忽略呢?因為這雖是車輛上路所致，卻不直接由車主或駕駛人承擔，所以不會有痛的感覺!這就是車輛的外部性與外部成本(external cost)。
本文後段將再提到強制汽車責任保險(以下簡稱強制車險)如何解決了汽機車外部性的問題。
法學思維vs.經濟分析
法學思維有一套正義天平可依恃為參考標竿(benchmark)，經濟分析則以人的理性與自利為思考準繩(thinking rule)。
強制車險實施以來，學者專家、監理機構及保險公司共同努力下，對於本法提供車禍受害人及其家屬獲得基本保障的目標，成功體現了強制保險法的精神，也確實維護了法律的公平正義，而以經濟角度分析會有不同的結果嗎?
汽機車外部性為何應由法律處理
汽機車造成外部成本中，空氣污染與對第三人所造成的潛在危害，是主要的項目，這些實際發生卻由第三人負擔的成本，是由整體社會共同承擔。空氣污染解決方式比較簡單，執行成本低且有效率，即是針對汽油使用者徵收空污費(隨油徵收)、燃料費(依車輛排汽量徵收)。
至於對其他用路人造成的潛在風險如何處理呢?由商業的汽車保險制度處理外部成本問題是否合適呢?這樣的一個問題提出，已間接回答：汽車責任保險，需有一基本限額強制納保的正當性了，汽機車行駛造成對第三人的外部性，在法律思維上應強制貫徹使用者付費(負擔成本)的邏輯。
無聊的經濟學信徒會再問一次：為何『應』強制投保呢！這類問題與小孩子問父母為什麼要上學一樣，有些父母答案可能是『就是不為什麼!或是小孩子有耳無嘴，去做就是!』
外部性經濟分析與法律思維有相同的結果，是否有不同的理由呢?
經濟學家皮古、寇斯與法官浦士納
關於外部性與法律經濟學領域的專家，本文僅列出三個重要代表性人物。
皮古與皮古稅
皮古(Pigou, A.C.)是英國的經濟學家，在其1932年出版的福利經濟學(The Economics of Welfare)中，提出了處裡外部成本的方法，類推到汽車購買行為，汽車的真實成本包含兩項：一是自己支付的私人成本(private costs)；一是整體社會承擔，屬外部成本，兩種成本的總合是社會成本(social cost)，私人成本與社會成本間有一落差(gap)，這個落差應由政府立法介入，以課稅的方式，讓稅負剛好等於外部成本，以此為基準徵收之稅負，一般稱為皮古稅(Pigouvian tax)。
強制車險就是以立法，強制汽機車主負擔外部成本，把外部成本內部化。
就汽機車的外部成本解決方案，皮古的方式恰巧是有效的，依法投保強制車險，車主繳交的「皮古稅」，用來與交通事故的損害相抵，而受害人每人最高賠償金額150萬元，過高或過低?法律也必須有一套邏輯，決定車主每年負擔多少保費(應繳交多少皮古稅)，多了會給了車主規避投保的誘因，定少了又無法達到基本保障目標。
對此，經濟分析提出的不是一個答案，而是一套條件式思考，類似若A則B、C……；若A’則B’C’……，這樣的『選擇』中隱含著『比較』與『對照』，權衡那一種遊戲規則可以誘發較好的行為反應。
寇斯與寇斯定理
寇斯定理並非否定政府，而是要政府扮演適當角色，就是保護產權、創造市場、充當公正裁判等職責。
-吳惠林 中研院經濟研究員
寇斯(Coase, Ronald H.)是1991年諾貝爾經濟學獎得主，也是外部性經濟學最重要的學者，他的觀點以寇斯定理(Coase Theorem)為主：「當交易(協商)成本 (transaction cost)為零時，所有資源的運用都將是有效率的!」據此，寇斯推翻了皮古的理論，並指出當交易成本為零時，皮古的論點是錯誤的，因為交易成本低的情形下，不須政府介入，一樣可以達到具經濟效率的結果。
事實上，皮古的方式只有當交易成本很高的時候，才能導致具經濟效率的結果；寇斯定理改變了外部性處理方式的思維，並且因此獲頒了諾貝爾經濟學獎。
強制車險因具有很高的交易成本，所以皮古的方式處理是有效的。
獨善其身與兼善天下 關於『交易成本』
什麼是交易成本呢?交易成本比較高是什麼情況?!
中國古訓「修身齊家治國平天下」為交易成本的概念提供了詮釋的最佳場景。
想像一下，誰會為了自己定下規則呢，下定決心減肥算是吧!這項規則可能寫在冰箱上或自己心中(自己與自己的交易成本為零)，不需與誰約定或立法規範，唯一作用是提醒自己。自律之人方可以齊家，現代化家庭人口簡單，立下的規矩也不需太多，只須立個佈告欄，此時較管理自己時，多了一些家人間共同承諾遵守的條文(例如：限制每日讀書、看電視、上網時間，或須在12點以前就寢，不可打架等等……)，父母也許會要求小孩簽字承諾遵守，子女為何會遵守呢?因為大部分的『家』是利益共同體，且父母有經濟控制權等；外部性透過相互依賴的關係內部化了 ，這就是交易(協商)成本較低時，皮古理論無用武之處的原因。
寇斯所提出的分析中，以單一主人思維(single-owner thinking)方式來解釋此經濟(社會)現象，一般家庭人口大多僅2~5人，較易取得共識(交易成本極低)，依單一主人思維，不需動用到皮古的解決方法就可達到具經濟效率的處理方式。然而，治國則不同，須輔以法律始能竟其功，因管理眾人之事交易成本極高(無法以道德或規範要求大家行為一致)，這時所謂的規定或原則來處理外部性時已窒礙難行了。
強制車險顯然就是屬於須以法律處理外部性的情形。
公寓大廈管理委員會的宿命
以管委會為例，更容易說明交易成本過高，導致社區無法正常運作的結果。
一般經驗，社區住戶永遠有不繳管理費的誘因，這便是公共財的問題，總有人想著白吃的午餐，一開始，100人當中也許有10人不按時繳交，這10人意圖撘便車，既不用負擔公共設施營運支出，又可以免費使用社區健身房，然後每位住戶拒繳管理費的誘因皆因此變強了，當然，未取得合法地位之管委會，對於住戶的道德勸說顯然無效，會有更多的住戶持「只要大家都繳，他也會繳!」的”正當”理由遲繳管理費。住戶明知管理不善的社區，房價下跌的損失遠高過少繳的管理費，但最後仍造成房價下跌，全體住戶損失更大，管委會訂的遊戲規則不具有強制性，社區住戶不易達成共識，造成失序的結果，也說明了單一主人思維可以用於少數人，人數越多越難協商，交易成本越高!
波斯納法官以經濟分析思考法律問題
「追求公平正義，不能無視於成本!」
-波斯納法官(Judge Richard Posner)
相對於寇斯，法律界中波斯納法官是法律經濟學最活躍的人物，出身於哈佛法學院，為美國聯邦法官，在學術界與司法界均享有盛名，由於其極力鼓吹法律經濟學，以經濟分析的角度審視法律問題，也引起法界不同意見，認為其論點不符合法律崇高價值。
波斯納觀點引起爭議的一個例子，根據美國法律，嬰兒收養市場是一個價格被法律定為0的「自由」市場，嬰兒供不應求是必然的結果，因此，三種情形發生:一是排隊等待，二是管制與配給，三是黑市交易。波斯納法官認為取消價格管制便可消除問題，對於公開主張買賣嬰兒的法官，任何道德觀都無法認同。
即使如此，仍無損他於法律經濟學的貢獻，其於思索法律問題上的兩項思考工具，對於爭議的判斷上非常具有智慧，一是假設性思維 ，二是財富極大化，其中財富極大化的思考，與經濟學中的成本效益分析有些類似，對於外部性的判斷，或對於效率的追求，極為有用，本文對於強制車險的法律經濟分析，即以財富最大化為依恃的參考座標(reference framework) 。
法律與經濟如何處理汽車外部性
法律的公平正義
強制車險立法，是為了讓車禍受害者及其家屬獲得基本保障，強制所有車主投保，其意義與皮古稅相當接近，透過強制繳交保費，將汽車使用的外部成本(交通事故致第三人受傷或死亡)內部化，由全體車主負擔，達到公平與正義的目標。
除此之外，在強制險賠償範圍內，採行無過失責任制度，並賦予受益人直接請求權，亦符合絕對保障之目的，也解決了交通事故受害者求償無門的困境。無責任亦須理賠是否過於保障受害者，以致於降低了受害者防範的誘因 ，或對已盡注意義務之駕駛人不公平，各方仍有異見，若純以外部性而言，無車輛即無由發生車輛事故之損害，以公平正義而言，或法學思維角度，有以致之。
任意汽車責任保險及侵權行為之法律
或謂強制車險中所規範之事故發生，受害人及其受益人即使無強制車險保障，仍得透過民法侵權行為損害賠償請求權的行使，獲得賠償，以現今車輛投保任意汽車責任險普及，學者也認同該險種具有利益第三人保險之性質，強制車險的功能似乎不是那麼重要了。就此論點，以立法精神與責任基礎來看，任意車險性質上仍屬保障被保險人的利益為主，侵權行為成立與否的認定，也依過失責任為前提，其在於私有財產權保障的目的至為明顯，除非受害者提出證據，證明車主或駕駛人有過失，並具體列出因此受到的損失金額，否則難以獲得賠償。
法界對過失責任制度的諺語：『舉證之所在，敗訴之所在!』指的就是過失責任制度下車禍受害者不利的情形。
綜合言之，法律在處理車輛的外部性，以基本保障為界，屬於基本保障的部分，強制投保，並以無過失責任基礎認定，以符合立法精神，超過的部分，仍以過失責任制度，以責任成立作為侵權行為是否成立之依據。
基本保障範圍的界定，將成為法律維持其公平正義的工具，在兩方之間取得平衡 的標準如何呢，為何不是更高或更低的水準呢。
經濟的理性分析
相對於法律思維所注重的應如何，與如何做，可以讓社會變得更公平，更穩定。經濟分析注重的是效率，社會科學的基本態度，會先描述是什麼，然後才探討為什麼，最後是如何做，如何做最有經濟效率?如何做會對整體社會具有最大的利益?個別行為是如何?整體行為又是如何?所顯現的結果，是對於現象的觀察與解釋。
經濟分析以人的行為皆是理性與自利為前提，透過需求法則(Law of Demand)詮釋價值在需求曲線上的移動，價值可解釋為成本或價格，三者可視為相通的觀念，用來解釋強制車險經濟面觀察的現象。
對於訴訟與和解案件的影響
強制車險採無過失責任的處理原則，除了外部性與皮古稅的理由外，相較於過失責任制度，即使車主已採取所有的預防措施(無過失)，還是得負責任，根據無過失原則，訴訟案件的處理，會比較簡單，因為原告不必證明被告是否有過失，但就限額以上的部分，仍以過失責任制度為依據。
整體而言，這樣的一個制度，對於訴訟成本的影響並不明確，可得確認者，小額的訴訟案件不須經過司法體系的判決，可直接求償，因此減少了司法體系負擔。另一方面，強制險的保障額度視為對受害者的補償時，和解金額必然也隨著提高，超過強制車險給付範圍的求償，仍造成了訴訟案件，這樣的和解金額增加，是否符合社會進步所需，則會有較分歧的看法，因此強制車險保障每人賠償金額的界線，除了對於公平正義的價值(價格)評定以外，經濟分析更注重未來性與社會價值觀走向，對於法律處理基本保障範圍之界定，提供了不同的評價思考。
求償難度及外部性大小的影響
依需求理論分析，車輛事故發生的歸責方式，對車主或受害者行為會產生不同的誘因，司法體系在無過失責任與過失責任制度的選擇，可視為光譜的兩端，中間則為嚴格責任 制度，採行不同的責任制度會對車主及受害者造成不同行為誘因。
就無過失責任制與嚴格責任制，車主或駕駛人只要肇事就須負責，代價較高(代價就是成本、價格、與價值)，因此有預防外部性發生造成對第三人傷害的誘因，也會積極尋求保險以轉移風險責任，無形中改善了對第三人的外部性，但是當保險制度提供完善保障，駕駛人轉嫁責任給保險公司 ，又會惡化了對第三人的外部性。
但若採過失原則，車主或駕駛人只有在被舉證沒有採取所有可行的與防護措施下(具體有過失)，才需要為意外負責，造成受害人求償更加困難，這項原則會降低車主及駕駛人防範車輛發生事故的誘因。
所以，強制車險採無過失責任制，任意車險採過失責任制，對於外部性的降低是有誘因的，但是須注意越健全的保險制度同時降低了車主的預防誘因。
也是道德危險 車輛安全裝置與保險
『堅持對生命安全的防護!』……指的是駕駛人的生命，不是路人!! -多數車廠宣揚的造車理念
車輛安全裝置讓車主生命保障更加完善，如ABS系統與安全氣囊裝置，然而根據調查，車輛事故不減反增，也就是安全機制卻造成了更大外部性的結果，其中可能的解釋是，因為車輛更安全了，反而鬆懈了駕駛上的安全顧慮，部分駕駛人會更不在意危險駕駛行為，安全氣囊與增厚的鋼板恰恰造成了車外人更大的安全威脅。為了增進安全的機制，卻造成更大外部性的結果，解決了一項問題，卻製造另一項問題!
保險制度亦具有此反功能性，波斯納法官也曾提及:『責任保險減低了汽車損害賠償的嚇阻作用。 』車主一旦將風險移轉，便可能疏於採行合乎成本的預防措施，在保險上這稱為道德危險，不論是過失或無過失責任制度下，只要採取保險策略就產生了道德危險---車主減低了誘因去為保險公司的利益把關，保險公司如何預防這種情況發生呢?主要是自負額與加減費制度，以及惡性重大肇事(例如無照或酒駕肇事)仍可向駕駛人追償。
駕駛人怠忽，以經濟學的行為理論與需求法則解釋，當怠忽駕駛行為變便宜了(保險移轉與駕駛安全防護增加)，就會多消費一些(造成外部性的危險行為)。
對於這樣的結果，經濟與法律達成了有效率的共識，以經濟學來說，增加成本或提高價格(對於危險駕駛行為的懲罰)就會降低消費(不安全駕駛行為)，在法律而言，便是增加對於不安全駕駛行為的懲罰(加重車主的成本)，這些懲罰可分成事前的懲罰，例如超速違規罰款，事後則為刑事與民事責任的加重，包括對於惡性駕駛的懲罰性賠償，用來抑制危害第三人的駕駛行為。相似的例子為：對於酒後駕車行為認定標準漸趨嚴格 ，經濟與法律的共識大體上是提高價格或成本(酒駕懲罰加重)會讓需求或消費(酒駕行為)減少，當中均隱含著具有效率的均衡。
正確的法律
正確的法律提供誘因，讓強制車險的車主與駕駛人對受害人的行為符合法律效果與經濟效率，也就是符合社會整體的共同價值與不令社會失序，經濟分析斟酌出應如何做，與法律的規範結果相同時，就達到法律目的與經濟效率，這樣的法律就是正確的法律。
強制車險實施前，車禍受害者未獲得適當的法律的保障，包括家屬在內，需面對親人傷亡之痛，更痛苦的是須再面對無止境的訴訟，在過失責任制度傾向保護車主與駕駛人的法律之下，求償困難，即使和解也是在痛苦無奈的情形下，簽訂不公平的和解金額，這樣的結果係因過失責任制度所致之惡。
強制車險實施之後，確保了受害者家屬的基本生活，法律提高了受害者一方的對等地位，有更大的能力與車主或駕駛人進行訴訟或和解程序，這項能力的提高，相對的減少了車主或駕駛人肇事以後的優勢地位，當雙方地位有所改變，車主或駕駛人最有能力防制事故發生，又有誘因促其對於本身的駕駛行為更加謹慎小心，透過這樣的經濟分析，可以發現正確的法律，不只符合公平正義，同時也具有效率(有效的讓車主更注意自己的駕駛行為)。
賠償金的邊際效益
麵包的售價穩定，但麵包的『價值』要看你有多餓而定。
-神奇的邊際效益
當你已是億萬身價，增加100萬元對你的意義，是總財產增加1%，當身上剩下1萬元，相同的100萬元，變成財產增加100倍。
金錢對哪一方較為重要，則其邊際效益較高，強制車險損害賠償行為的一方，以移轉的方式轉至受害的一方，當中並無金額增加或減少的變化，一方減少的金額恰與另一方獲得的金額相同，但就賠償金的邊際效益，減少的一方與獲得的一方差異極大，以每車每年所應納之強制保險保費，對於擁有車輛財產的車主而言，其負擔較輕，亦即邊際效益的損失較少，受害者之一方則不同，往往受害者係一家經濟支柱，此時的賠償金所發揮的邊際效益遠大於每位車主所損失的邊際效益，這樣的法律將賠償金的邊際效益擴大，也就是透過強制車險的法律，整體社會福祉因此增加，這樣的情形符合波斯納法官財富極大化的思維。
法律與經濟相會-代價遇見成本
經濟學奠基於需求法則，利用需求與價格的反向關係研究行為理論，價格與成本、價值概念相通，有如中國道家所言：一生二，二生三，三生萬物，經濟學以簡御繁，法律也不例外。
自寇斯社會成本理論所提外部性的處理，搭起一座通往法律學殿堂的橋樑，法律的目的是什麼?法律與規則法律與道德分界又在何處?這三者之間，有替代性，有互補性，二手煙為何從道德交到法律手理?汽車侵權行為過失責任制又為何變成無過失賠償制度?這些模糊交界處，經濟學提供了一個誘因理論，探討兩造之間的行為法則。法律，包括強制車險的法律，透過外部性的處理，得到與經濟分析面相通的結論，詮釋這結論的最重要概念當屬成本，也就是行為的代價。
強制車險法律處理的，乃一方與另一方的利益衝突，一方行為造成另一方的成本，行為之一方為此付出代價，法律衡量該讓這個代價多高，以收嚇阻功效；經濟分析在於成本增加(付出代價)後的需求減少(造成外部性的行為)，兩者都須具有折衝取捨，也都在兩難中選擇相對較好的制度。法學有悠久歷史，隨著文明與時俱進，處理的紛爭有其一貫之邏輯與秩序，付出何種代價之餘，納入經濟思考，或許會有另一番有趣的思維方式。
參考書目:
英文
Coase, Ronald H. The Problem of Social Cost, in: The Journal of Law & Economics, Volume 3 October 1960.
Richard A. Posner Economic Analysis of Law,5th edition, New York 1998.
中文
王澤鑑,侵權行為法,2002
江朝國,強制汽車責任保險法,1999
林立,波斯納與法律經濟分析-一個批判性的研究,2004
高希均 林祖嘉,經濟學的世界上篇,2004
陳繼堯,汽車保險-理論與實務,1997
熊秉元, 熊秉元漫步法律,2003
熊秉元, 熊秉元漫步經濟,2003
熊秉元, 走進經濟學,2006
中文譯作
Cooter & Ulem, 法律經濟學, 溫麗琪 譯, 2003
David D. Friedman 經濟學與法律的對話 葉家興 審定, 徐源豐 譯, 2002
David D. Friedman 生活經濟學, 趙學凱、王建南、施麗中 譯,2007
網路資源
維基百科http://zh.wikipedia.org/：Category 法律經濟學
中國法律經濟學網http://www.law-economics.cn/：法律经济学论坛
外部性與社會成本問題
外部性(externality)是法律學與經濟學相通的概念，生活中有許多行為產生外部性，對他人發生影響，這些影響有些是正面的：市府蓋捷運，出口距你家一分鐘，讓你身家飛漲；也有些是負的外部性：焚化爐或垃圾場總設置在落後、偏遠居民較為弱勢的地區。噪音、河川與土地污染、抽菸吃檳榔……各項妨害他人的行為都引起了或大或小的外部性，經濟學上以社會成本(Social Cost)與外部成本的概念加以解釋。
什麼樣的外部成本才需要法律介入處理呢?以二手菸的例子，吸煙會危害健康，所以對不吸煙者造成很大的外部性，菸害防治法頒布前，並無法律處理此項行為，由『道德與規範』處理，但『道德與規範』界線模糊，勉強可以解為社會大眾的共同價值觀 ；10年前，『規則』可能認為開放空間有吸煙的權利，但在密閉室內就會有人抗議，只是這樣的規則很難有效。現今還是有人在自己的領土上吞雲吐霧，受害者還是只能私下埋怨這些不尊重他人的行為，吸煙者的吸煙權利界定很不容易。
過去半世紀以來，對於外部性的研究掀起一股熱潮，因這項研究自經濟學這端架起了一座通往法律殿堂的橋樑。關於外部性的論著，首推『社會成本問題(The Problem of Social Cost)』，此文係芝加哥大學經濟學家寇斯(Coase, Ronald H)於1960年所發表，這篇文章改寫了過去幾十年來對外部性的看法，寇斯也因此得到了1991年諾貝爾經濟學獎。
強制汽車責任保險與外部性
福爾摩沙島內住著擁擠的2,300萬人，95年底統計，汽機車的數量為2,025萬輛 ，大多數人都有一次以上的購車經驗，車主就有限的資訊盤算著各項成本支出：車價、保險、稅金、停車位、油耗……等，只是當中還有些成本被忽略了，第一項重要的成本為，使用汽油同時造成了空氣污染；第二項為開車上路對第三人所造成的潛在危害 ，這項危害在95年度造成2,957筆肇事件數（當中除了82件因為行人不慎，其他均為駕駛過失）、3,096人死亡、1,298人受傷(受傷與肇事的真實數字遠遠高過於此)，這兩大成本為何會被忽略呢?因為這雖是車輛上路所致，卻不直接由車主或駕駛人承擔，所以不會有痛的感覺!這就是車輛的外部性與外部成本(external cost)。
本文後段將再提到強制汽車責任保險(以下簡稱強制車險)如何解決了汽機車外部性的問題。
法學思維vs.經濟分析
法學思維有一套正義天平可依恃為參考標竿(benchmark)，經濟分析則以人的理性與自利為思考準繩(thinking rule)。
強制車險實施以來，學者專家、監理機構及保險公司共同努力下，對於本法提供車禍受害人及其家屬獲得基本保障的目標，成功體現了強制保險法的精神，也確實維護了法律的公平正義，而以經濟角度分析會有不同的結果嗎?
汽機車外部性為何應由法律處理
汽機車造成外部成本中，空氣污染與對第三人所造成的潛在危害，是主要的項目，這些實際發生卻由第三人負擔的成本，是由整體社會共同承擔。空氣污染解決方式比較簡單，執行成本低且有效率，即是針對汽油使用者徵收空污費(隨油徵收)、燃料費(依車輛排汽量徵收)。
至於對其他用路人造成的潛在風險如何處理呢?由商業的汽車保險制度處理外部成本問題是否合適呢?這樣的一個問題提出，已間接回答：汽車責任保險，需有一基本限額強制納保的正當性了，汽機車行駛造成對第三人的外部性，在法律思維上應強制貫徹使用者付費(負擔成本)的邏輯。
無聊的經濟學信徒會再問一次：為何『應』強制投保呢！這類問題與小孩子問父母為什麼要上學一樣，有些父母答案可能是『就是不為什麼!或是小孩子有耳無嘴，去做就是!』
外部性經濟分析與法律思維有相同的結果，是否有不同的理由呢?
經濟學家皮古、寇斯與法官浦士納
關於外部性與法律經濟學領域的專家，本文僅列出三個重要代表性人物。
皮古與皮古稅
皮古(Pigou, A.C.)是英國的經濟學家，在其1932年出版的福利經濟學(The Economics of Welfare)中，提出了處裡外部成本的方法，類推到汽車購買行為，汽車的真實成本包含兩項：一是自己支付的私人成本(private costs)；一是整體社會承擔，屬外部成本，兩種成本的總合是社會成本(social cost)，私人成本與社會成本間有一落差(gap)，這個落差應由政府立法介入，以課稅的方式，讓稅負剛好等於外部成本，以此為基準徵收之稅負，一般稱為皮古稅(Pigouvian tax)。
強制車險就是以立法，強制汽機車主負擔外部成本，把外部成本內部化。
就汽機車的外部成本解決方案，皮古的方式恰巧是有效的，依法投保強制車險，車主繳交的「皮古稅」，用來與交通事故的損害相抵，而受害人每人最高賠償金額150萬元，過高或過低?法律也必須有一套邏輯，決定車主每年負擔多少保費(應繳交多少皮古稅)，多了會給了車主規避投保的誘因，定少了又無法達到基本保障目標。
對此，經濟分析提出的不是一個答案，而是一套條件式思考，類似若A則B、C……；若A’則B’C’……，這樣的『選擇』中隱含著『比較』與『對照』，權衡那一種遊戲規則可以誘發較好的行為反應。
寇斯與寇斯定理
寇斯定理並非否定政府，而是要政府扮演適當角色，就是保護產權、創造市場、充當公正裁判等職責。
-吳惠林 中研院經濟研究員
寇斯(Coase, Ronald H.)是1991年諾貝爾經濟學獎得主，也是外部性經濟學最重要的學者，他的觀點以寇斯定理(Coase Theorem)為主：「當交易(協商)成本 (transaction cost)為零時，所有資源的運用都將是有效率的!」據此，寇斯推翻了皮古的理論，並指出當交易成本為零時，皮古的論點是錯誤的，因為交易成本低的情形下，不須政府介入，一樣可以達到具經濟效率的結果。
事實上，皮古的方式只有當交易成本很高的時候，才能導致具經濟效率的結果；寇斯定理改變了外部性處理方式的思維，並且因此獲頒了諾貝爾經濟學獎。
強制車險因具有很高的交易成本，所以皮古的方式處理是有效的。
獨善其身與兼善天下 關於『交易成本』
什麼是交易成本呢?交易成本比較高是什麼情況?!
中國古訓「修身齊家治國平天下」為交易成本的概念提供了詮釋的最佳場景。
想像一下，誰會為了自己定下規則呢，下定決心減肥算是吧!這項規則可能寫在冰箱上或自己心中(自己與自己的交易成本為零)，不需與誰約定或立法規範，唯一作用是提醒自己。自律之人方可以齊家，現代化家庭人口簡單，立下的規矩也不需太多，只須立個佈告欄，此時較管理自己時，多了一些家人間共同承諾遵守的條文(例如：限制每日讀書、看電視、上網時間，或須在12點以前就寢，不可打架等等……)，父母也許會要求小孩簽字承諾遵守，子女為何會遵守呢?因為大部分的『家』是利益共同體，且父母有經濟控制權等；外部性透過相互依賴的關係內部化了 ，這就是交易(協商)成本較低時，皮古理論無用武之處的原因。
寇斯所提出的分析中，以單一主人思維(single-owner thinking)方式來解釋此經濟(社會)現象，一般家庭人口大多僅2~5人，較易取得共識(交易成本極低)，依單一主人思維，不需動用到皮古的解決方法就可達到具經濟效率的處理方式。然而，治國則不同，須輔以法律始能竟其功，因管理眾人之事交易成本極高(無法以道德或規範要求大家行為一致)，這時所謂的規定或原則來處理外部性時已窒礙難行了。
強制車險顯然就是屬於須以法律處理外部性的情形。
公寓大廈管理委員會的宿命
以管委會為例，更容易說明交易成本過高，導致社區無法正常運作的結果。
一般經驗，社區住戶永遠有不繳管理費的誘因，這便是公共財的問題，總有人想著白吃的午餐，一開始，100人當中也許有10人不按時繳交，這10人意圖撘便車，既不用負擔公共設施營運支出，又可以免費使用社區健身房，然後每位住戶拒繳管理費的誘因皆因此變強了，當然，未取得合法地位之管委會，對於住戶的道德勸說顯然無效，會有更多的住戶持「只要大家都繳，他也會繳!」的”正當”理由遲繳管理費。住戶明知管理不善的社區，房價下跌的損失遠高過少繳的管理費，但最後仍造成房價下跌，全體住戶損失更大，管委會訂的遊戲規則不具有強制性，社區住戶不易達成共識，造成失序的結果，也說明了單一主人思維可以用於少數人，人數越多越難協商，交易成本越高!
波斯納法官以經濟分析思考法律問題
「追求公平正義，不能無視於成本!」
-波斯納法官(Judge Richard Posner)
相對於寇斯，法律界中波斯納法官是法律經濟學最活躍的人物，出身於哈佛法學院，為美國聯邦法官，在學術界與司法界均享有盛名，由於其極力鼓吹法律經濟學，以經濟分析的角度審視法律問題，也引起法界不同意見，認為其論點不符合法律崇高價值。
波斯納觀點引起爭議的一個例子，根據美國法律，嬰兒收養市場是一個價格被法律定為0的「自由」市場，嬰兒供不應求是必然的結果，因此，三種情形發生:一是排隊等待，二是管制與配給，三是黑市交易。波斯納法官認為取消價格管制便可消除問題，對於公開主張買賣嬰兒的法官，任何道德觀都無法認同。
即使如此，仍無損他於法律經濟學的貢獻，其於思索法律問題上的兩項思考工具，對於爭議的判斷上非常具有智慧，一是假設性思維 ，二是財富極大化，其中財富極大化的思考，與經濟學中的成本效益分析有些類似，對於外部性的判斷，或對於效率的追求，極為有用，本文對於強制車險的法律經濟分析，即以財富最大化為依恃的參考座標(reference framework) 。
法律與經濟如何處理汽車外部性
法律的公平正義
強制車險立法，是為了讓車禍受害者及其家屬獲得基本保障，強制所有車主投保，其意義與皮古稅相當接近，透過強制繳交保費，將汽車使用的外部成本(交通事故致第三人受傷或死亡)內部化，由全體車主負擔，達到公平與正義的目標。
除此之外，在強制險賠償範圍內，採行無過失責任制度，並賦予受益人直接請求權，亦符合絕對保障之目的，也解決了交通事故受害者求償無門的困境。無責任亦須理賠是否過於保障受害者，以致於降低了受害者防範的誘因 ，或對已盡注意義務之駕駛人不公平，各方仍有異見，若純以外部性而言，無車輛即無由發生車輛事故之損害，以公平正義而言，或法學思維角度，有以致之。
任意汽車責任保險及侵權行為之法律
或謂強制車險中所規範之事故發生，受害人及其受益人即使無強制車險保障，仍得透過民法侵權行為損害賠償請求權的行使，獲得賠償，以現今車輛投保任意汽車責任險普及，學者也認同該險種具有利益第三人保險之性質，強制車險的功能似乎不是那麼重要了。就此論點，以立法精神與責任基礎來看，任意車險性質上仍屬保障被保險人的利益為主，侵權行為成立與否的認定，也依過失責任為前提，其在於私有財產權保障的目的至為明顯，除非受害者提出證據，證明車主或駕駛人有過失，並具體列出因此受到的損失金額，否則難以獲得賠償。
法界對過失責任制度的諺語：『舉證之所在，敗訴之所在!』指的就是過失責任制度下車禍受害者不利的情形。
綜合言之，法律在處理車輛的外部性，以基本保障為界，屬於基本保障的部分，強制投保，並以無過失責任基礎認定，以符合立法精神，超過的部分，仍以過失責任制度，以責任成立作為侵權行為是否成立之依據。
基本保障範圍的界定，將成為法律維持其公平正義的工具，在兩方之間取得平衡 的標準如何呢，為何不是更高或更低的水準呢。
經濟的理性分析
相對於法律思維所注重的應如何，與如何做，可以讓社會變得更公平，更穩定。經濟分析注重的是效率，社會科學的基本態度，會先描述是什麼，然後才探討為什麼，最後是如何做，如何做最有經濟效率?如何做會對整體社會具有最大的利益?個別行為是如何?整體行為又是如何?所顯現的結果，是對於現象的觀察與解釋。
經濟分析以人的行為皆是理性與自利為前提，透過需求法則(Law of Demand)詮釋價值在需求曲線上的移動，價值可解釋為成本或價格，三者可視為相通的觀念，用來解釋強制車險經濟面觀察的現象。
對於訴訟與和解案件的影響
強制車險採無過失責任的處理原則，除了外部性與皮古稅的理由外，相較於過失責任制度，即使車主已採取所有的預防措施(無過失)，還是得負責任，根據無過失原則，訴訟案件的處理，會比較簡單，因為原告不必證明被告是否有過失，但就限額以上的部分，仍以過失責任制度為依據。
整體而言，這樣的一個制度，對於訴訟成本的影響並不明確，可得確認者，小額的訴訟案件不須經過司法體系的判決，可直接求償，因此減少了司法體系負擔。另一方面，強制險的保障額度視為對受害者的補償時，和解金額必然也隨著提高，超過強制車險給付範圍的求償，仍造成了訴訟案件，這樣的和解金額增加，是否符合社會進步所需，則會有較分歧的看法，因此強制車險保障每人賠償金額的界線，除了對於公平正義的價值(價格)評定以外，經濟分析更注重未來性與社會價值觀走向，對於法律處理基本保障範圍之界定，提供了不同的評價思考。
求償難度及外部性大小的影響
依需求理論分析，車輛事故發生的歸責方式，對車主或受害者行為會產生不同的誘因，司法體系在無過失責任與過失責任制度的選擇，可視為光譜的兩端，中間則為嚴格責任 制度，採行不同的責任制度會對車主及受害者造成不同行為誘因。
就無過失責任制與嚴格責任制，車主或駕駛人只要肇事就須負責，代價較高(代價就是成本、價格、與價值)，因此有預防外部性發生造成對第三人傷害的誘因，也會積極尋求保險以轉移風險責任，無形中改善了對第三人的外部性，但是當保險制度提供完善保障，駕駛人轉嫁責任給保險公司 ，又會惡化了對第三人的外部性。
但若採過失原則，車主或駕駛人只有在被舉證沒有採取所有可行的與防護措施下(具體有過失)，才需要為意外負責，造成受害人求償更加困難，這項原則會降低車主及駕駛人防範車輛發生事故的誘因。
所以，強制車險採無過失責任制，任意車險採過失責任制，對於外部性的降低是有誘因的，但是須注意越健全的保險制度同時降低了車主的預防誘因。
也是道德危險 車輛安全裝置與保險
『堅持對生命安全的防護!』……指的是駕駛人的生命，不是路人!! -多數車廠宣揚的造車理念
車輛安全裝置讓車主生命保障更加完善，如ABS系統與安全氣囊裝置，然而根據調查，車輛事故不減反增，也就是安全機制卻造成了更大外部性的結果，其中可能的解釋是，因為車輛更安全了，反而鬆懈了駕駛上的安全顧慮，部分駕駛人會更不在意危險駕駛行為，安全氣囊與增厚的鋼板恰恰造成了車外人更大的安全威脅。為了增進安全的機制，卻造成更大外部性的結果，解決了一項問題，卻製造另一項問題!
保險制度亦具有此反功能性，波斯納法官也曾提及:『責任保險減低了汽車損害賠償的嚇阻作用。 』車主一旦將風險移轉，便可能疏於採行合乎成本的預防措施，在保險上這稱為道德危險，不論是過失或無過失責任制度下，只要採取保險策略就產生了道德危險---車主減低了誘因去為保險公司的利益把關，保險公司如何預防這種情況發生呢?主要是自負額與加減費制度，以及惡性重大肇事(例如無照或酒駕肇事)仍可向駕駛人追償。
駕駛人怠忽，以經濟學的行為理論與需求法則解釋，當怠忽駕駛行為變便宜了(保險移轉與駕駛安全防護增加)，就會多消費一些(造成外部性的危險行為)。
對於這樣的結果，經濟與法律達成了有效率的共識，以經濟學來說，增加成本或提高價格(對於危險駕駛行為的懲罰)就會降低消費(不安全駕駛行為)，在法律而言，便是增加對於不安全駕駛行為的懲罰(加重車主的成本)，這些懲罰可分成事前的懲罰，例如超速違規罰款，事後則為刑事與民事責任的加重，包括對於惡性駕駛的懲罰性賠償，用來抑制危害第三人的駕駛行為。相似的例子為：對於酒後駕車行為認定標準漸趨嚴格 ，經濟與法律的共識大體上是提高價格或成本(酒駕懲罰加重)會讓需求或消費(酒駕行為)減少，當中均隱含著具有效率的均衡。
正確的法律
正確的法律提供誘因，讓強制車險的車主與駕駛人對受害人的行為符合法律效果與經濟效率，也就是符合社會整體的共同價值與不令社會失序，經濟分析斟酌出應如何做，與法律的規範結果相同時，就達到法律目的與經濟效率，這樣的法律就是正確的法律。
強制車險實施前，車禍受害者未獲得適當的法律的保障，包括家屬在內，需面對親人傷亡之痛，更痛苦的是須再面對無止境的訴訟，在過失責任制度傾向保護車主與駕駛人的法律之下，求償困難，即使和解也是在痛苦無奈的情形下，簽訂不公平的和解金額，這樣的結果係因過失責任制度所致之惡。
強制車險實施之後，確保了受害者家屬的基本生活，法律提高了受害者一方的對等地位，有更大的能力與車主或駕駛人進行訴訟或和解程序，這項能力的提高，相對的減少了車主或駕駛人肇事以後的優勢地位，當雙方地位有所改變，車主或駕駛人最有能力防制事故發生，又有誘因促其對於本身的駕駛行為更加謹慎小心，透過這樣的經濟分析，可以發現正確的法律，不只符合公平正義，同時也具有效率(有效的讓車主更注意自己的駕駛行為)。
賠償金的邊際效益
麵包的售價穩定，但麵包的『價值』要看你有多餓而定。
-神奇的邊際效益
當你已是億萬身價，增加100萬元對你的意義，是總財產增加1%，當身上剩下1萬元，相同的100萬元，變成財產增加100倍。
金錢對哪一方較為重要，則其邊際效益較高，強制車險損害賠償行為的一方，以移轉的方式轉至受害的一方，當中並無金額增加或減少的變化，一方減少的金額恰與另一方獲得的金額相同，但就賠償金的邊際效益，減少的一方與獲得的一方差異極大，以每車每年所應納之強制保險保費，對於擁有車輛財產的車主而言，其負擔較輕，亦即邊際效益的損失較少，受害者之一方則不同，往往受害者係一家經濟支柱，此時的賠償金所發揮的邊際效益遠大於每位車主所損失的邊際效益，這樣的法律將賠償金的邊際效益擴大，也就是透過強制車險的法律，整體社會福祉因此增加，這樣的情形符合波斯納法官財富極大化的思維。
法律與經濟相會-代價遇見成本
經濟學奠基於需求法則，利用需求與價格的反向關係研究行為理論，價格與成本、價值概念相通，有如中國道家所言：一生二，二生三，三生萬物，經濟學以簡御繁，法律也不例外。
自寇斯社會成本理論所提外部性的處理，搭起一座通往法律學殿堂的橋樑，法律的目的是什麼?法律與規則法律與道德分界又在何處?這三者之間，有替代性，有互補性，二手煙為何從道德交到法律手理?汽車侵權行為過失責任制又為何變成無過失賠償制度?這些模糊交界處，經濟學提供了一個誘因理論，探討兩造之間的行為法則。法律，包括強制車險的法律，透過外部性的處理，得到與經濟分析面相通的結論，詮釋這結論的最重要概念當屬成本，也就是行為的代價。
強制車險法律處理的，乃一方與另一方的利益衝突，一方行為造成另一方的成本，行為之一方為此付出代價，法律衡量該讓這個代價多高，以收嚇阻功效；經濟分析在於成本增加(付出代價)後的需求減少(造成外部性的行為)，兩者都須具有折衝取捨，也都在兩難中選擇相對較好的制度。法學有悠久歷史，隨著文明與時俱進，處理的紛爭有其一貫之邏輯與秩序，付出何種代價之餘，納入經濟思考，或許會有另一番有趣的思維方式。
參考書目:
英文
Coase, Ronald H. The Problem of Social Cost, in: The Journal of Law & Economics, Volume 3 October 1960.
Richard A. Posner Economic Analysis of Law,5th edition, New York 1998.
中文
王澤鑑,侵權行為法,2002
江朝國,強制汽車責任保險法,1999
林立,波斯納與法律經濟分析-一個批判性的研究,2004
高希均 林祖嘉,經濟學的世界上篇,2004
陳繼堯,汽車保險-理論與實務,1997
熊秉元, 熊秉元漫步法律,2003
熊秉元, 熊秉元漫步經濟,2003
熊秉元, 走進經濟學,2006
中文譯作
Cooter & Ulem, 法律經濟學, 溫麗琪 譯, 2003
David D. Friedman 經濟學與法律的對話 葉家興 審定, 徐源豐 譯, 2002
David D. Friedman 生活經濟學, 趙學凱、王建南、施麗中 譯,2007
網路資源
維基百科http://zh.wikipedia.org/：Category 法律經濟學
中國法律經濟學網http://www.law-economics.cn/：法律经济学论坛
觀察任意汽車保險投保者的風險趨避態度對於不對稱訊息的影響
觀察任意汽車保險投保者的風險趨避態度對於不對稱訊息的影響
蔡英哲 Tsai, Ying Che
鄭安峰 Cheng, An Feng
中文摘要
過去對於保險市場是否存在不對稱訊息的實證研究，皆利用Rothschild and Stiglitz (1976)理論架構來進行，由於該理論只考慮投保者的風險差異程度，但對於風險趨避如何影響不對稱訊息的情況便未深究；再者，如何妥善控制投保者的風險趨避程度，各種做法具有差異且效果不一，導致保險市場是否存在不對稱訊息的情況，仍多所爭論。本研究提供比較理想的實證方式在於，相對於汽車保險的自然人投保者資料，法人投保者資料，受到財富效果的影響最不顯著，類似已良好控制投保者的風險趨避程度，配合Chiappori and Salanié (2000)的計量模型，預期檢證(1)投保車體保險的自然人與法人投保者，是否分別存在不對稱訊息的情況；(2)相對於自然人投保者，平均而言法人投保者是否有較低的不對稱訊息情況；(3)觀察法人投保者，隨著風險趨避態度增加，不對稱訊息的嚴重程度是否隨之增加；(4)在控制相同的風險趨避程度下，相對於自然人投保者，法人投保者是否有較低的不對稱訊息情況。經由上述檢證，本研究欲推論: .......................
蔡英哲 Tsai, Ying Che
鄭安峰 Cheng, An Feng
中文摘要
過去對於保險市場是否存在不對稱訊息的實證研究，皆利用Rothschild and Stiglitz (1976)理論架構來進行，由於該理論只考慮投保者的風險差異程度，但對於風險趨避如何影響不對稱訊息的情況便未深究；再者，如何妥善控制投保者的風險趨避程度，各種做法具有差異且效果不一，導致保險市場是否存在不對稱訊息的情況，仍多所爭論。本研究提供比較理想的實證方式在於，相對於汽車保險的自然人投保者資料，法人投保者資料，受到財富效果的影響最不顯著，類似已良好控制投保者的風險趨避程度，配合Chiappori and Salanié (2000)的計量模型，預期檢證(1)投保車體保險的自然人與法人投保者，是否分別存在不對稱訊息的情況；(2)相對於自然人投保者，平均而言法人投保者是否有較低的不對稱訊息情況；(3)觀察法人投保者，隨著風險趨避態度增加，不對稱訊息的嚴重程度是否隨之增加；(4)在控制相同的風險趨避程度下，相對於自然人投保者，法人投保者是否有較低的不對稱訊息情況。經由上述檢證，本研究欲推論: .......................
以汽車使用者的動機差異來分析國內車體保險市場不對稱訊息的問題
以汽車使用者的動機差異來分析國內車體保險市場不對稱訊息的問題
To Analyze the Problem of Asymmetric Information in Taiwan’s Automobile Insurance by the Different Motivations of Using Cars between Social Needs and Private Needs
蔡英哲 Tsai, Ying Che
鄭安峰 Cheng, An Feng
以汽車使用者的動機差異來分析國內車體保險市場不對稱訊息的問題
To Analyze the Problem of Asymmetric Information in Taiwan’s Automobile Insurance by the Different Motivations of Using Cars between Social Needs and Private Needs
本文摘要
由於法人車主與自然人車主，使用汽車的動機存在明顯差異進而影響彼此出險的行為與購買保障的高低，本文主要觀察理賠機率與保障之間，是否存在顯著的正向關係，且兩類車主正向關係的差異是否顯著。研究發現，(1)不管是甲式相對於乙式樣本、甲式相對於丙式樣本或乙式相對於丙式樣本，理賠機率與保障之間皆存在正向相關；(2)甲式相對於乙式樣本，自然人車主道德危險的情況較嚴重，使得正向關係顯著較高，乙式相對於丙式樣本，法人車主逆選擇的情況較嚴重，使得正向關係顯著較高；(3)當理賠金額增加，保險公司比較無法利用優勢資訊來解決法人車主因逆選擇所產生的不對稱訊息的問題。
Abstract
Practically, we have well known that the obviously different motivations of using cars between social needs and private needs make various drivers’ claim behaviors and coverage choice. By jointly analyzing the empirical data, we show that there totally exist asymmetric information problems among samples of policy type A versus policy type B, policy type A versus policy type C, or policy type B versus policy type C, that among sample of policy type A versus policy type B the car owners of private needs having great moral hazard problem exist more significant asymmetric information problem than ones of social needs but among sample of policy type B versus policy type C the car owners of social needs having great adverse selection problem exist more significant asymmetric information problem than ones of private needs, and that insurers should lack the powerful scheme to solve the problem of asymmetric information derived from car owners of social needs having great adverse selection problem when severity increases.
關鍵字: 不對稱訊息, 汽車保險，JEL分類代號: G22, G32
Key words: Asymmetric Information, Automobile Insurance, JEL classification: G22, G32
To Analyze the Problem of Asymmetric Information in Taiwan’s Automobile Insurance by the Different Motivations of Using Cars between Social Needs and Private Needs
蔡英哲 Tsai, Ying Che
鄭安峰 Cheng, An Feng
以汽車使用者的動機差異來分析國內車體保險市場不對稱訊息的問題
To Analyze the Problem of Asymmetric Information in Taiwan’s Automobile Insurance by the Different Motivations of Using Cars between Social Needs and Private Needs
本文摘要
由於法人車主與自然人車主，使用汽車的動機存在明顯差異進而影響彼此出險的行為與購買保障的高低，本文主要觀察理賠機率與保障之間，是否存在顯著的正向關係，且兩類車主正向關係的差異是否顯著。研究發現，(1)不管是甲式相對於乙式樣本、甲式相對於丙式樣本或乙式相對於丙式樣本，理賠機率與保障之間皆存在正向相關；(2)甲式相對於乙式樣本，自然人車主道德危險的情況較嚴重，使得正向關係顯著較高，乙式相對於丙式樣本，法人車主逆選擇的情況較嚴重，使得正向關係顯著較高；(3)當理賠金額增加，保險公司比較無法利用優勢資訊來解決法人車主因逆選擇所產生的不對稱訊息的問題。
Abstract
Practically, we have well known that the obviously different motivations of using cars between social needs and private needs make various drivers’ claim behaviors and coverage choice. By jointly analyzing the empirical data, we show that there totally exist asymmetric information problems among samples of policy type A versus policy type B, policy type A versus policy type C, or policy type B versus policy type C, that among sample of policy type A versus policy type B the car owners of private needs having great moral hazard problem exist more significant asymmetric information problem than ones of social needs but among sample of policy type B versus policy type C the car owners of social needs having great adverse selection problem exist more significant asymmetric information problem than ones of private needs, and that insurers should lack the powerful scheme to solve the problem of asymmetric information derived from car owners of social needs having great adverse selection problem when severity increases.
關鍵字: 不對稱訊息, 汽車保險，JEL分類代號: G22, G32
Key words: Asymmetric Information, Automobile Insurance, JEL classification: G22, G32
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