The Issue of Whether the Special Lien is Transferred to the Assignee in Case of the Assignment of the Claim Secured by the Special Lien

Abstract

Per Article 97 of the Highway Traffic Code, the injured party may file a lawsuit directly against the insurance company within the limits outlined in their compulsory financial liability insurance. Although not being a party to the insurance agreement, the aggrieved third party may exercise the legal right bestowed upon them to directly petition the insurer for damages compensation. The fact that the aggrieved third party is granted the right to sue the insurer directly not constitute a contract for the benefit of the third party. In this case, the conditions for a contract in the third party’s benefit are absent. There is no “beneficiary” designated in the contract, and it is unclear who will suffer damages. Hence, it is not only legally unfeasible but also without justification to regard all individuals who are potentially harmed as beneficiaries of the contract for the third party. The third party’s right to file a lawsuit is a legally generated right and an exception to the principle of relativity of contracts. The rationale behind the acceptance of this right is to enhance the efficacy of protection for the injured individual. Thus, if a risk occurs, the joint liability of the insured causing the damage (up to the insurance cost) and the insurer shall be generated. The aggrieved third party must first submit a written application to the insurer prior to filing a case against the insurer, whether in the state jurisdiction or with the Insurance Arbitration Committee (Highway Traffic Code art. 97). The nature of this written application must be specified. Furthermore, it is important that this written application be evaluated within the framework of mediation. Whether the written application requirement has been fulfilled must be specified in detail, particularly in cases where mediation is being pursued. The This study discusses the legal nature of the right to sue the insurer directly and to submit a written application to the insurer in terms of civil procedure law, with a particular focus on litigation, procedural obligations, and mediation. In addition to the views in the doctrine on the subject, the current judicial decisions pertaining to this practice, along with an assessment of the opinions supported in these decisions, have been discussed.

Keywords

• written application
• procedural requirement
• mediation
• the highway traffic code
• civil procedure law