Topic 14. INSURANCE OBLIGATIONS

14.1. The concept and individual types of insurance

In its economic essence, insurance is a system of economic relations aimed at eliminating or reducing property losses caused by extraordinary circumstances, by distributing them among persons, at whose expense a special (insurance) fund is created to compensate for such losses.

Insurance economic relations act in the form of the creation and distribution of a monetary fund, called an insurance fund, which is managed by a special organization (insurer), through the preliminary accumulation of funds (contributions) of interested participants in economic turnover (insurers).

The civil law sources of insurance law are the Civil Code, Law of the Russian Federation of November 27.11.1992, 4015 No. 1-28.06.1991 "On the Organization of Insurance Business in the Russian Federation" (hereinafter referred to as the Law on the Organization of Insurance Business in the Russian Federation), KTM, Law of the RSFSR of June 1499, 1 No. XNUMX-XNUMX "On the health insurance of citizens in the Russian Federation".

Important in the regulation of specific insurance relations are insurance rules (policy rules) adopted, approved or approved by the insurer or the association of insurers, although they do not constitute sources of law (Article 943 of the Civil Code).

The grounds for the emergence of insurance obligations may be: contract (Article 927 of the Civil Code); membership in a mutual insurance society (paragraph 1, clause 3, article 968 of the Civil Code); law and other legal act with compulsory state insurance (clause 2 of article 969 of the Civil Code).

On the basis of its obligation or non-obligation for the insured, voluntary and compulsory insurance are distinguished.

Voluntary insurance is carried out on the basis of an agreement concluded at the discretion of the insured.

Mandatory is insurance, which is carried out by virtue of the law, obliging the insured to conclude an insurance contract in accordance with the rules established by him (clause 2 of article 927 of the Civil Code).

The peculiarity of compulsory insurance is that it is insurance in favor of a third party, i.e. the damage caused by such insurance is compensated not to the insured, but to another person.

According to Art. 935 of the Civil Code, by law, persons liable to it may be required to insure:

▪ life, health or property of other persons specified by law in case of harm to their life, health or property;

▪ the risk of your civil liability, which may arise as a result of causing harm to the life, health or property of other persons or violation of a contract with other persons.

Compulsory insurance is carried out by concluding an insurance contract by a person who is entrusted with the obligation of such insurance (the insured) with the insurer.

Compulsory insurance is carried out at the expense of the insured, with the exception of compulsory insurance of passengers carried out at their expense.

The objects subject to compulsory insurance, the risks against which they must be insured, and the minimum amount of insurance amounts are determined by law or in the manner prescribed by it (Article 936 of the Civil Code).

The conclusion of insurance contracts with compulsory insurance is mandatory for insurers only when concluding personal insurance contracts due to the fact that such contracts are classified as public (paragraph 2, clause 1, article 927 of the Civil Code).

The law provides for the possibility of compulsory state insurance (clause 3 of article 927, clause 1 of article 969 of the Civil Code), which is carried out, in particular, in relation to the life, health and property of civil servants of certain categories and some other persons equated to them. The peculiarity of this insurance lies in the fact that its implementation can be based directly on the law or other legal act, and not on the contract.

Special varieties of insurance are co-insurance, double insurance and reinsurance.

Co-insurance takes place in cases where the object of insurance is insured under one contract jointly by several insurers (Article 953 of the Civil Code, Article 12 of the Law on the Organization of Insurance Business in the Russian Federation). The rights and obligations of each of the co-insurers may be defined in the contract itself. In the absence of such a condition in the contract, they are jointly and severally liable to the insured (beneficiary) for the production of the relevant insurance payments (Article 953 of the Civil Code).

Double insurance should be distinguished from co-insurance, in which the same object is insured under two or more contracts by several insurers. The peculiarity of such insurance is that it is admissible only when insuring property or business risk. The use of double insurance for personal insurance would be contrary to the compensatory nature of the latter.

For double insurance, it is typical to determine the amount of insurance compensation for each insurer in proportion to the ratio of the sum insured under the contract concluded by him to the total amount of all concluded contracts for this object (clause 4 of article 951, clause 2 of article 952 of the Civil Code).

Reinsurance is full or partial insurance of the risk of payment of insurance compensation or the sum insured, assumed by the insurer under the insurance contract, from another insurer (insurers) under the contract concluded with the latter.

The rules of Ch. 48 of the Civil Code, to be applied in relation to entrepreneurial risk, unless otherwise provided by the reinsurance contract. In case of reinsurance, the insurer under this contract remains responsible under the main insurance contract for the production of the insurance payment. The law allows for the consecutive conclusion of two or more reinsurance contracts (Article 967 of the Civil Code).

14.2. Participants of the insurance liability

The parties to the insurance obligation are the insurer and the policyholder. As an insurer, an insurance contract can only be concluded by an insurance organization - a legal entity that has a permit (license) to carry out insurance of the corresponding type (part 2 of article 938 of the Civil Code). To acquire the status of an insurer, it is necessary to comply with the requirement for the minimum amount of paid authorized capital established by the Law on the organization of insurance business in the Russian Federation (Article 25). An insurer can only be a commercial organization engaged in entrepreneurial activities in the insurance sector, both a state (for example, Rosgosstrakh) and a non-state (private) insurance organization.

Citizens and legal entities can insure their property and other property interests specified in paragraph 2 of Art. 929 of the Civil Code, on a reciprocal basis by combining in mutual insurance companies the funds necessary for this.

When carrying out insurance activities, insurers widely use the services of insurance agents and insurance brokers (Article 8 of the Law on the organization of insurance business in the Russian Federation).

Insurance agent - an individual or legal entity acting on behalf of the insurer and on his behalf in accordance with the powers granted.

Thus, the insurance agent is the representative of the insurer. Its main activity is the conclusion of insurance contracts ("sales of insurance policies").

Insurance broker - an individual or legal entity acting in the interests of the insured or insurer and carrying out activities for the provision of services related to the conclusion of insurance contracts, as well as the execution of these contracts.

Relations for the provision of brokerage services are regulated either by the rules on a commission agreement (Chapter 51 of the Civil Code) or by an agency agreement (Chapter 52 of the Civil Code). For legal entities, it is obligatory to indicate that they carry out insurance brokerage activities in their constituent documents. Legal entities and individual entrepreneurs are also required to register as insurance brokers with the federal executive body for the supervision of insurance activities 10 days before the start of their brokerage activities.

The insured (policy holder) may be a legal person or a legal entity. A feature of the insured is that he has an insurable interest, which consists in compensation (compensation) for damage caused to life, health or property by unforeseen and extraordinary circumstances. The insured is a person who has directly entered into an insurance obligation with an insurer on the basis of a law or an agreement.

Third parties - the beneficiary and the insured person - may be participants in the insurance obligation.

Beneficiary (beneficiary) - an individual or legal entity with an insurable interest in whose favor the policyholder has concluded an insurance contract. The peculiarity of the position of the beneficiary in insurance obligations lies in the possibility of presenting the claim of the insurer to him for the fulfillment of obligations not fulfilled by the insured.

Insured person - a natural person, with whose personality the insured associates the events specified in the insurance contract, which are the basis for the payment of the sum insured. The participation of the insured person is possible only in a personal insurance contract (clause 1 of article 934 of the Civil Code) or in a liability insurance contract for causing harm (clause 1 of article 931 of the Civil Code).

To conclude a personal insurance contract in favor of the insured or the beneficiary, if they do not coincide with the insured person, the written consent of the insured person is required. If this condition is violated, the contract may be declared invalid at the claim of the insured person or his heirs (paragraph 2, clause 2, article 934 of the Civil Code).

In a liability insurance contract for causing harm, the insured person can be both the insured himself and another person who can be held liable for such liability (paragraph 1 of article 931 of the Civil Code).

14.3. insurance contract

An insurance contract can be concluded both at the will of the parties, and by virtue of a direct indication of the law. In the current legislation, two types of such an agreement are distinguished: a property insurance agreement (Article 929 of the Civil Code) and a personal insurance agreement (Article 934 of the Civil Code).

When concluding both types of insurance contract, an agreement must be reached between the insured and the insurer on the following essential conditions:

▪ about the object of insurance;

▪ about the nature of the insured event, in connection with the possibility of the occurrence of which insurance is provided;

▪ about the amount of the insured amount;

▪ about the duration of the contract (Article 942 of the Civil Code).

The insurance contract is concluded only in writing. Failure to comply with this form entails the invalidity of the contract, with the exception of the compulsory state insurance contract (clause 1, article 940 of the Civil Code).

An insurance contract can be concluded in the traditional form - by drawing up one document signed by the parties (clause 2 of article 434 of the Civil Code). However, by now, a different form of its conclusion, inherent in insurance, has developed - by handing the last insurance policy (certificate, certificate, receipt) signed by the insurer (paragraph 1, clause 2, article 940 of the Civil Code) to the insurant on the basis of a written or oral application . In this case, the consent of the insured (acceptance) to conclude an agreement on the terms proposed by the insurer is confirmed by the acceptance of the specified documents from the insurer (paragraph 2, clause 2, article 940 of the Civil Code).

An insurance policy can be nominal, although it is also possible to issue it to the bearer (paragraph 2, clause 3, article 930 of the Civil Code).

In commercial practice, general policies are widely used, which, by agreement of the insured with the insurer, can be issued with the systematic insurance of different lots of homogeneous property on similar conditions for a certain period (clause 1 of article 941 of the Civil Code).

In the practice of insurance, standard forms of an agreement (insurance policy) developed by insurers or their associations for certain types of insurance are common (clause 3 of article 940 of the Civil Code).

According to the object of the insurance obligation, insurance is divided into property and personal. Property insurance is used to ensure compensation for losses incurred as a result of damage to the property of a citizen or legal entity. Personal insurance provides compensation for damage incurred as a result of harm to the life or health of a citizen.

According to paragraph 2 of Art. 929 of the Civil Code under a property insurance contract, in particular, the following property interests can be insured:

▪ risk of loss (destruction), shortage or damage to certain property (Article 930 of the Civil Code);

▪ the risk of liability for causing harm to the life, health or property of other persons, and in cases provided for by law, also liability under contracts - the risk of civil liability (Articles 931, 932 of the Civil Code);

▪ the risk of losses from business activities for reasons beyond the control of the entrepreneur - business risk (Article 933 of the Civil Code).

Under a personal insurance contract, property interests are insured, the presence of which is due to the following circumstances:

▪ causing harm to the life or health of the policyholder himself or another citizen (insured person) named in the contract;

▪ this person has reached a certain age;

▪ the occurrence in his life of another event provided for by the contract (insured event) (paragraph 1, clause 1, article 934 of the Civil Code).

It is not allowed to insure interests that are not based on the law, in particular illegal interests, as well as losses from participation in games, lotteries, bets, expenses that a person may be forced to pay in order to free the hostages. If there are such conditions in insurance contracts, they are recognized as void (Article 928 of the Civil Code).

The duration of the insurance obligation may be definite (one year, five years, etc.) or indefinite (life insurance). The contract may also establish terms for the performance of certain obligations of the insured and the insurer.

The obligation of the policyholder is to inform the insurer, when concluding an insurance contract, of circumstances known to the policyholder that are essential for determining the likelihood of an insured event and the amount of possible losses from its occurrence (insurance risk), if these circumstances are not known and should not be known to the insurer (paragraph 1 p. 1 article 944 of the Civil Code). The use by the insurer of the received information should not violate the rule on their confidential nature (Article 946 of the Civil Code).

The main obligation of the insured is to pay the insurance premium. The insurance premium is understood as payment for insurance, which the insured (beneficiary) is obliged to pay to the insurer in the manner and within the time limits established by the insurance contract (clause 1, article 954 of the Civil Code). The insurance contract, unless otherwise provided in it, comes into force from the moment of payment of the insurance premium or its first installment (clause 1 of article 957 of the Civil Code). Thus, as a general rule, this contract is a real contract. The amount of the insurance premium is determined on the basis of insurance rates.

The insurance rate is the rate of the insurance premium charged per unit of the sum insured, taking into account the object of insurance and the nature of the insured risk.

The insurance premium can be paid at a time or in installments - by making insurance premiums. The terms of specific insurance contracts provide for various consequences of non-payment of regular insurance premiums on time (clause 3 of article 954 of the Civil Code): a decrease in the size of the insurance amount, termination of the contract with the right to receive the redemption amount (part of the paid premiums), etc.

Among the basic insurance concepts is the concept of insurance risk. Its definition is given in paragraph 1 of Art. 9 of the Law on the organization of insurance business in the Russian Federation, according to which the insured risk is the expected event, in the event of which insurance is carried out. An event considered as an insured risk must have signs of probability and randomness of its occurrence. Without the presence of insurance risk, there can be no insurance obligation, which serves as the basis for classifying insurance obligations as risky - aleatory obligations.

When concluding an insurance contract, the insured is obliged to inform the insurer of all material circumstances known to him that make it possible to assess the degree of insured risk. Circumstances that are specifically stipulated by the insurer in the standard form of the insurance contract (insurance policy) or in his written request are recognized as significant (paragraph 2 of clause 1 of article 944 of the Civil Code).

Communication by the insured of knowingly false information about the circumstances that determine the degree of risk may serve as a basis for the insurer to demand that the contract be declared invalid as made under the influence of fraud, except in cases where the circumstances that the insured has kept silent about have disappeared (Article 179, paragraph 3 article 944 of the Civil Code).

The law grants the insurer the right to independently assess the insurance risk (Article 945 of the Civil Code).

During the period of validity of the property insurance contract, the policyholder (beneficiary) is also obliged to immediately inform the insurer of significant changes that have become known to him in the circumstances reported to the insurer upon conclusion of the contract, if these changes can significantly affect the increase in insurance risk. Significant changes are recognized that are distinguished in the insurance contract (insurance policy) and in the rules of insurance transferred to the insured (paragraph 1 of article 959 of the Civil Code).

The insurer, notified of the circumstances entailing an increase in the insured risk, has the right to demand a change in the terms of the insurance contract or payment of an additional insurance premium. If there are objections to this on the part of the insured (beneficiary), the insurer has the right to demand termination of the contract (paragraph 2 of article 959 of the Civil Code).

If the insured (beneficiary) does not inform about the circumstances that significantly increase the insured risk, the insurer has the right to demand not only termination of the contract, but also compensation for the losses caused to it, except for cases when such circumstances have already disappeared (paragraphs 3, 4 of article 959 of the Civil Code).

In the case of personal insurance, the indicated consequences of a change in insurance risk during the validity period of the insurance contract do not occur, unless they are expressly provided for in the contract (clause 5 of article 959 of the Civil Code).

An insured event is an event that has taken place, provided for by an insurance contract or a law, upon the occurrence of which the insurer's obligation to make an insurance payment arises (clause 2, article 9 of the Law on the Organization of Insurance Business in the Russian Federation).

The policyholder under a property insurance contract is obliged to immediately notify the insurer or his representative of the occurrence of an insured event. The same obligation lies with the beneficiary, who is aware of the conclusion of the contract in his favor, if he intends to exercise the right to insurance compensation (paragraph 1 of article 961 of the Civil Code).

If the insured event is the death of the insured person or causing harm to his health, the period for notifying the insurer cannot be less than 30 days (clause 3 of article 961 of the Civil Code).

Upon the occurrence of an insured event provided for by a property insurance contract, the insured is obliged to take reasonable and accessible measures in the circumstances to reduce possible losses (Article 962 of the Civil Code). The main obligation of the insurer is to pay the sum insured upon the occurrence of an insured event.

Sum insured - the amount of money that is established by federal law and (or) determined by the insurance contract and on the basis of which the amount of the insurance premium (insurance premiums) and the amount of insurance payment in the event of an insured event are established.

To designate insurance payments that must be made for property insurance, the Civil Code uses the name "insurance compensation", and for personal insurance - "sum insured" (thus, the term "sum insured" is used in two senses). The difference in these names is due to the fact that the infliction of harm to life or health, the consequences of the onset of a certain age, etc., in contrast to the damage caused to property, cannot be subjected to valuation, and therefore the corresponding insurance payments are not restorative, but compensatory (security) character, i.e. aimed at compensating for what cannot be valued in money.

In personal insurance contracts, the sum insured is determined by the parties themselves at their own discretion and is not subject to limitation. The sum insured is determined in a similar way in civil liability insurance contracts (clause 3, article 947 of the Civil Code).

When insuring property or business risk, unless otherwise provided by the insurance contract, the sum insured must not exceed their actual value (insurance value). This value is considered to be:

▪ for property - its actual value at its location on the day of concluding the insurance contract;

▪ for business risk - losses from business activities that the policyholder, as can be expected, would have incurred upon the occurrence of an insured event (clause 2 of Article 947 of the Civil Code).

If the sum insured specified in the property or business risk insurance contract exceeds the insured value, the contract is void in the part of the sum insured that exceeds the insured value. As an exception, it is allowed to exceed the total sum insured in the property insurance of the same object against different insurance risks both under one and under separate insurance contracts, including with different insurers (paragraph 1 of article 952 of the Civil Code).

The insurer shall be obliged to register the occurrence of an insured event. The presence (or absence) of an insured event is certified by an insurance certificate (accident certificate) drawn up on the basis of an application by the insured by the insurer or a person authorized by him.

The duty of the insurer is also to maintain the secrecy of insurance, i.e. non-disclosure of information received by him as a result of his professional activities about the insured, the insured person and the beneficiary, the state of health and property status of these persons. For violation of the secrecy of insurance, the insurer is liable according to the rules of Art. 139, 150 of the Civil Code (Article 946 of the Civil Code).

Fulfillment of insurance obligations consists in the production by the insurer of insurance payments to the insured (beneficiary) upon the occurrence of an insured event. In property insurance, the insurer pays insurance compensation, so called because the purpose of this payment is to compensate for losses incurred as a result of an insured event. In this case, only direct losses are subject to compensation, i.e. losses in the insured property itself or directly caused to other property interests of the insured (paragraph 1 of article 929 of the Civil Code). Lost profits or losses that go beyond the object of insurance (indirect losses) are not compensated by the insurer.

In cases where the property is insured for the amount insured below the insured value and has been damaged, two systems are applied to calculate the insurance indemnity: proportional liability and first risk.

When applying the proportional liability system, the amount of compensation for losses is determined in proportion to the ratio of the sum insured to the insured value (Article 949 of the Civil Code). However, the contract may also establish a higher amount of insurance compensation, but the latter in any case should be lower than the insurance value.

The first risk system provides coverage for all losses caused by an insured event, but within the sum insured, regardless of the ratio of the sum insured and the insured value. Within the limits of the sum insured, compensation for losses constitutes the risk of the insurer (first risk) (this name also determines the name of this system), and incurring losses in the remaining outstanding part constitutes the risk of the insured (beneficiary) (second risk).

To protect the interests of the insurer in property insurance, the law (Article 965 of the Civil Code) establishes a rule on the transfer to the insurer of the rights of the insured to compensate for damage (subrogation). According to this rule, unless otherwise provided by the property insurance contract, after the payment of the insurance indemnity, the right of claim that the insured (beneficiary) has against the person responsible for the losses compensated as a result of insurance passes to the insurer.

A property insurance contract may grant the insured the right to claim against the person liable for losses, which excludes subrogation. However, the condition of the contract, excluding the transfer to the insurer of the right to claim against the person who intentionally caused losses, is void (paragraph 1 of article 965 of the Civil Code).

Fulfillment of the obligation for personal insurance in accordance with paragraph 1 of Art. 934 of the Civil Code is carried out by the insurer paying a lump sum or periodically the amount (insurance amount) stipulated by the contract to the insured (beneficiary). At the same time, the sum insured is paid regardless of the amounts under other insurance contracts, as well as for compulsory social insurance, social security and in order to compensate for harm (paragraph 1, clause 6, article 10 of the Law on the organization of insurance business in the Russian Federation). This rule excludes the possibility of using subrogation in personal insurance obligations.

According to paragraph 1 of Art. 963 of the Civil Code, the insurer is exempt from paying insurance compensation or the sum insured if the insured event occurred as a result of the intention of the insured, beneficiary or insured person. The law provides for cases of release of the insurer from the obligation to pay insurance compensation under property insurance contracts in the event of an insured event due to the gross negligence of the insured or the beneficiary.

The law establishes two cases when the insurer cannot be released from the production of insurance payments, including in the event of an insured event due to the intention of the insured or the insured person. Firstly, the insurer is not exempted from paying insurance compensation under a civil liability insurance contract for causing harm to life or health, if the harm was caused through the fault of the person responsible for it, i.e. the insured or the insured person (clause 2 of article 963 of the Civil Code). Secondly, the insurer is not released from the obligation to pay the sum insured payable under the personal insurance contract in the event of the death of the insured person, if his death was due to suicide and by this time the insurance contract had been in force for at least two years (paragraph 3 of article 963 GK).

The grounds for the release of the insurer from the payment of insurance compensation or the sum insured may be extraordinary circumstances that go beyond the scope of ordinary insured events. According to paragraph 1 of Art. 964 of the Civil Code, the insurer is exempt from these payments, unless otherwise provided by law or contract, when the insured event occurred as a result of:

▪ the impact of a nuclear explosion, radiation or radioactive contamination;

▪ military operations, as well as maneuvers or other military activities;

▪ civil war, civil unrest of any kind or strikes.

The release of the insurer from insurance payments may be due to the infliction of losses by the actions of public authorities, which are of a coercive nature. So, unless otherwise provided by the property insurance contract, the insurer is exempt from paying insurance compensation for losses incurred as a result of seizure, confiscation, requisition, arrest or destruction of the insured property by order of state bodies (clause 2 of article 964 of the Civil Code).

The liability of the insurer for non-fulfillment or improper fulfillment of obligations imposed on him by law or contract is determined in the legislation governing certain types of insurance, insurance rules or a specific insurance contract.

The liability of the insured (beneficiary, insured person) is expressed in the non-receipt of full or partial insurance compensation (sum insured). The grounds for the insurer's refusal to make an insurance payment are provided directly in Ch. 48 of the Civil Code (Art. 961, 963, 964), and may also be established by special legislation or specified in a specific insurance contract.

The policyholder (beneficiary) is liable in the form of compensation for losses caused to the insurer in the following cases:

▪ recognition of the insurance contract as invalid due to an overstatement of the insured amount as a result of deception of the policyholder (in an amount exceeding the amount of the insurance premium received) (clause 3 of Article 951 of the Civil Code);

▪ termination of the insurance contract due to failure by the policyholder (beneficiary) during the period of validity of the contract to immediately notify the insurer of circumstances leading to an increase in the insurance risk (clause 3 of Article 959 of the Civil Code).

A claim for claims arising from a property insurance contract may be brought within two years (Article 966 of the Civil Code).

Early termination of the insurance contract is possible if, after its entry into force, the possibility of an insured event has disappeared and, in connection with this, the existence of an insurance risk has ceased (clause 1, article 958 of the Civil Code). In case of early termination of the insurance contract on such grounds, the insurer is entitled to a part of the insurance premium in proportion to the actual duration of the insurance (paragraph 1, clause 3, article 958 of the Civil Code).

The insured (beneficiary) has the right to cancel the insurance contract at any time, if by the time of the cancellation no circumstances have occurred that entail its early termination (clause 1 of article 958 of the Civil Code). At the same time, the insurance premium paid to the insurer is not refundable, unless otherwise provided by the contract (paragraph 2, clause 3, article 958 of the Civil Code).

The Civil Code and special legislation determine the features of certain types of property and personal insurance.

Types of property insurance are:

▪ property insurance (Article 930 of the Civil Code);

▪ civil liability insurance, including for damage caused by contract (Articles 931, 932 of the Civil Code);

▪ business risk insurance (Article 933 of the Civil Code).

The civil law norms, taking into account their specifics, regulate the following types of personal insurance:

▪ life insurance;

▪ insurance against accidents and illnesses;

▪ voluntary health insurance.

Author: Ivakin V.N.

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