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Abstract


THE SUBROGATION OF THE INSURER IN TURKISH LAW

The word “Khalaf” is etymologically of Arabic origin and means “one who follows someone and takes his place”. When evaluated as a legal term, "subrogation" means "replacing and replacing the creditor in proportion to the payment made by the third party paying the creditor"; in other words, it is a word that expresses the fact that the third person making the payment or performing the payment has the rights legally possessed by the creditor. When we look at the arrangement of the subrogation, it is seen that the general regulation regarding this is included in the Turkish Code of Obligations No. 6098. Art of the aforementioned Law. According to the provision of art 127, it will be seen that there are two possibilities in which subrogation can take place: “the third person who will perform to the creditor by the debtor notifies the creditor before the performance that he will succeed him” and “the owner or another real right holder other than the property releases something pledged for the debt of the third party from the pledge”. However, another point that draws attention in the provision is that other provisions regarding the states of subrogation are reserved (Turkish Code of Obligations art. 127/2). One of the provisions reserved by the Turkish Code of Obligations No. 6098 regarding the subrogation is the subrogation of the current insurer in the insurance law. When we look at the regulations regarding subrogation in insurance law, it is seen that the Turkish Commercial Code No. 6102 (in short: TCC) refers to the provisions regarding this principle separately for property and liability insurances. While the subrogation of the insurer in property insurance is regulated in the provision of TCC 1472, the subrogation of the insurer in liability insurance is regulated in the provision of 1481 of the TCC. The aforementioned provisions, in parallel with each other, regulate that the insurer who pays the insurance indemnity will legally replace the insured and states that the insurer's right of action and proceeding against those responsible for the damage incurred will pass to the insurer in proportion to the indemnified insurance indemnity. At the same time, the aforementioned provisions prohibit the insured from acting in a way that violates the insurer's rights regarding substitution and regulates that the insurer will be liable to the insurer if it violates its rights regarding substitution (TCC 1472/2 and TCC 1481/3). When the provisions are taken together, it is noteworthy that the subrogation is mainly regulated for loss insurances and this principle cannot be applied for sum insurances as a rule. Because the important thing in terms of amount insurance is the payment of the amount agreed in the insurance contract in case of the realization of the risk. In sum insurance, compensation for a loss is not on the agenda. Accordingly, it can be said that sum insurances do not comply with the purpose of the subrogation principle. While the Turkish Commercial Code No. 6102 regulated the principle of subrogation on the one hand, it supported this principle with another principle, namely the principle of prohibition of enrichment. With the phrase "The Insurer compensates the loss suffered by the insured", the provision of the TCC art. 1459 states that the insurer will only cover the actual damage within the scope of the coverage and will not be liable for more. Thus, the legislator tried to prevent the insurance institution from being used as a means of enrichment. The principle of subrogation also essentially supports the prohibition of enrichment. The principle of subrogation prevents the insured from making a second claim by applying to the person responsible for the loss, even though the insured has applied to the insurer for compensation, that is, the insurance institution is not used as a means of enrichment. The insurer becomes a successor to the insured only in proportion to the portion of the damage indemnified under the insurance contract, and on the other hand, the insured continues to have the opportunity to apply to the loss responsible for the portion of the damage not covered by insurance. The insurer has the right to recourse to the loss responsible for the amount paid and thus successor to the insured. In order for the insurer to recourse to the loss responsible, it is required that the insurance indemnity has been partially or fully paid and that the insured has the authority to pursue or litigate against the loss responsible. The statute of limitations to which the insurer is subject when exercising its right of recourse is the same as the statute of limitations when applying to the insured person. In this article, the conditions, provisions and consequences of the insurer's subrogation in Turkish law are discussed in the light of the views in the Law and doctrine by referring to the general regulations regarding the subrogation.



Keywords
Property Insurance, Liability Insurance, Principle of Subrogation, Right of Recourse.



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