摘要：

在理赔难这一保险行业顽疾日益凸显的背景下，针对保险人在理赔中的恶意违约行为设置相应的责任规制，应当成为首要之策。多数保险消费者购买保险的目的是经由保险赔付获得经济保障以及内心安宁，保险人所承担的不只是简单赔付的结果性义务，而是一个兼具主观善意和客观诚信之理赔的过程性义务。保险人恶意责任构成的核心——恶意不当理赔——也应分别从主观恶意与客观不当两个方面予以界定。在主观方面应将保险人的机会主义倾向及其归责性与我国现行的主观过错形态进行匹配；在客观方面需要结合我国保险人不当理赔的实际类型来对理赔的不当性予以界定。既有的违约责任难以达成充分补偿和有效惩罚的目标。为此，有必要将保险人的恶意不当理赔责任放置于违约责任与侵权责任交叉的中间地带，采取以规制效果为核心的责任统合进路，保证索赔人就其履行利益和固有利益获得全面赔偿，确保惩罚性赔偿发挥惩罚和威慑的功能。

关键词: 理赔难, 诚信理赔义务, 恶意不当理赔, 责任竞合, 责任统合

Abstract:

Due to the increasingly prominent difficulty in insurance claims settlement，setting up the liability regulation for bad faith breach of contract by insurers should be an important option to deal with this problem.The purpose of most insurance consumers to buy insurance is to obtain economic security and peace of mind through insurance payment after an insurance accident occurs.What the insurer undertakes is not just a consequential obligation of simple payment，but a procedural obligation that has both the characteristics of subjective and objective good faith.Therefore，the core of insurer's liability for bad-faith and unfair claim settlement should be defined from both subjective and objective aspects.In the subjective aspect，we should match the opportunistic tendency and subjective imputation of the insurer with the current subjective fault pattern in our country so as to clarify the basic scope of insurer's subjective bad faith；in the objective aspect，we need to define the unreasonableness according to the actual types of the insurer's unjust claims settlement.The present liability for breach of contract is difficult to achieve the two goals of liability regulation：full compensation and effective punishment.It is necessary to place insurer's liability for bad-faith and unfair claim settlement in the overlapping area between liability for breach of contract and liability for tort，and adopt the approach of integration of liabilities centered on the regulation effect.Under this path，the claimant will be able to obtain full compensation for its performance and inherent benefits，and punitive damages can also serve as a punishment and deterrence.

Key words: Difficulty in Insurance Claims Settlement, the Duty to Settle Claims in Good Faith, Bad-faith and Unfair Claims Settlement, Concurrence of Liabilities, Integration of Liabilities