本文旨在由比較法之觀點，探討保險代位之程序與特別約定等問題。保險代位由於英美法系與大陸法系之運作不同，實務上又多有特別約定，致使適用上常產生疑義與困難。從英美法之重要判決The Aiolos案，到我國新近相關判決，均可發現此一爭議，足見其重要性。就結論而言，首先在美國法真實利益當事人原則下，保險人應以自己名義請求，其結果與我國法定債權移轉理論類似。但美國法中已發展出許多例外，其寬鬆化之趨勢值得我國參考。再者，在訴訟程序方面，應可考慮擴張訴訟參加之效力，以更有效率地解決紛爭。第三，特別約定如代位收據等在實務上佔有關鍵地位，但解釋上不應過度拘泥於文字而以詞害意。我國法院對約款之見解未盡一致，恐導致實務運作困擾。高等法院之見解恐怕定位不清而限縮，亦與一般條款意旨不符，應重新考慮。未來應妥善區分不同代位體系之概念與用語，減少誤用與衝突，方能從根本避免爭議。 This study explores the procedure of insurance subrogation and effect of exclusions with comparative law approach. Due to the difference between common law and civil law subrogation systems as well as popularity of exclusions and covenants, many ambiguities and conflicts are incurred in subrogation dispute. This issue can be found in the leading case The Aiolos and recent important judgements in Taiwan. This study has the following findings. First, under the application of real party interest principle in the U.S. law, the insurer should claim in his own name. This result is similar to the legal assignment theory in Taiwan. However, many exceptions have been developed in the U.S., and thus such tendency is worth the consideration for Taiwan. Secondly, in order to solve controversies more efficiently, it is recommended to expand the effect of litigation intervention. Third, covenants such as subrogation receipt are critical in practice, but their interpretation should not adhere blindly to the language employed and thus against the true intent of the parties. The existing and conflicting opinions of courts in Taiwan may cause more controversies and detriments to the operation of subrogation. The opinion of the Taiwan High court is recommended for reconsideration, because it is believed to be unclear, over-conservative, and against the purpose of such clauses. Finally, it is recommended to carefully distinguish the ideas and terms of different legal families to adjust the fundamental cause of controversies and discrepancies.