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责任保险是诉讼保险,具有权利保护功能,故责任保险人的抗辩义务应在我国立法中予以明确规定。抗辩义务的内容包括实施抗辩行为和负担抗辩费用,并与损失填补义务共同构成主给付义务。判断抗辩义务成立与否,应以事实标准规则为基础,而将可能性标准规则作为补充,此外诉状内容可以作为事实认定的考量因素之一。在抗辩义务履行过程中可能产生多种形式的利益冲突,权利保留抗辩是解决问题的最优之选。保险人若违反抗辩义务,应当承受权利丧失、赔偿损害等一系列法律后果。
Liability insurance is the lawsuit insurance, with the function of protecting the rights. Therefore, the defensive obligation of the responsible insurer should be clearly stipulated in our country’s legislation. Defense obligations include the implementation of defense and burden of defense costs, and with the obligation to fill the obligation to compose the main payment obligations. Judgment of the obligation of defense should be based on the de facto standard rules, while the standard rules of possibility should be supplemented. In addition, the contents of the petitions may be considered as one of the considerations of fact. Conflicts of interest may arise in the performance of various forms of conflict of interest, the right to retain the defense is the best solution to the problem. If the insurer violates the defensive obligations, it should bear a series of legal consequences such as loss of rights and compensation for damages.