Insurance contract - Civil law. The special part

Insurance Contract

The insurance contract can be concluded either by the will of the parties or by direct indication of the law. In the current legislation, there are two types of such contract: property insurance contract (Article 929 GK) and personal insurance agreement (item 934 GK).

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

• about the insurance object;

• about the nature of the insured event, in connection with the possibility of occurrence of which insurance is carried out;

• about the amount of the sum insured;

• on the term of the contract (Article 942 GK).

The insurance contract consists only of 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 GK).

The insurance contract can be concluded in the traditional form - by drawing up one document signed by the parties (clause 2, Article 434 of the Civil Code). However, by the present time there has been a different form of his imprisonment, inherent in insurance, by handing over to the insured the insurer on the basis of a written or oral statement of the last insurance policy (certificate, certificate, receipt); signed by the insurer (paragraph 1 of item 2 of article 940 of the Civil Code). In this case, the consent of the policyholder (acceptance) to enter into a contract on the conditions proposed by the insurer is confirmed by the adoption of the said documents from the insurer (paragraph 2 of clause 2 of Article 940 of the Civil Code).

The insurance policy can be personal , although it is also permitted to issue it to the bearer (para 2 p. 3 item 930 ГК).

In general, general policies are widely used in commercial practice, which, by agreement of the insured with the insurer, can be issued in the case of systematic insurance of different lots of homogeneous property on similar terms for a certain period (p. 1 item 941 GK).

In the practice of insurance, the standard forms of the contract (insurance policy) for certain types of insurance developed by insurers or their associations are distributed (paragraph 3 of article 940 of the Civil Code).

On the object of the insurance obligation, insurance is divided into property and personal. Property insurance is used to secure 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 CC under the contract of property insurance can be insured, in particular, the following property interests:

• Risk of loss (death), shortage or damage to a certain property (Article 930 of the Civil Code)

• the risk of liability for damage to life, health or property of other persons, and in cases stipulated by law, also liability under contracts - the risk of civil liability (Article 931, 932 CC);

• The risk of losses from business activities for reasons beyond the control of the entrepreneur - business risk (Article 933 GK).

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

• causing damage to the life or health of the policyholder or other person named in the contract (insured person);

• the achievement of this person of a certain age;

• the arrival in his life of another event (the insured event) stipulated by the contract (paragraph 1 of Article 934, paragraph 1 of the Civil Code).

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

The term of the obligation of insurance can be determined (year, five years, etc.) and uncertain (life insurance). The agreement may also set the time for execution of certain duties of the insured and the insurer.

The insurer's duty is to inform the insurer when concluding an insurance contract for circumstances known to the insurer that are essential for determining the probability of occurrence 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 1 item I of item 944 GK). The use of the information received by the insurer should not violate the rule on their confidential character (Article 946 GK).

The main duty of the policyholder is to pay an insurance premium. insurance premium is understood as the insurance fee, which the policyholder (beneficiary) is obliged to pay to the insurer in the manner and within the terms established by the insurance contract (clause 1, article 954 of the Civil Code). The insurance contract, unless otherwise stipulated in it, comes into force from the moment of payment of the insurance premium or its first installment (clause 1, article 957 of the Civil Code). Thus, as a general rule, this agreement is a real contract. The size of the insurance premium is determined on the basis of insurance rates.

Insurance rate is the insurance premium rate charged per unit of the insured amount taking into account the insurance object and the nature of the insured risk.

The insurance premium can be paid on a lump sum basis or in installments - by making insurance premiums. The terms of specific insurance contracts provide for various consequences of non-payment in due time of the next insurance premiums (clause 3 of article 954 GK): reduction of the amount of the insured amount, termination of the contract with the right to receive the redemption amount (part of paid contributions), etc.

Among the basic insurance concepts is the notion insurance risk. Its definition is given in paragraph 1 of Art. 9 of the Law on the Organization of Insurance in the United States, according to which the insurance risk is an alleged event, in the event of which an insurance is carried out. An event considered as an insurance risk must have the probability and chance signs of its occurrence. Without the existence of an insurance risk, there can be no insurance obligation, which serves as the basis for assigning insurance liabilities to risky aleatory obligations.

When concluding an insurance contract, the insurer is obliged to inform the insurer about all the significant circumstances known to him, allowing to assess the degree of insurance risk. Essential circumstances that are specifically stipulated by the insurer in the standard form of the insurance contract (insurance policy) or in its written request (paragraph 2 of item 1 of article 944 of the Civil Code) are recognized as significant.

The communication by the insurer of knowingly false information about the circumstances determining the degree of risk may serve as the basis for the insurer's presentation of a claim on recognizing the contract as invalid as committed under the influence of deception, except when the circumstances about which the insurer is silent have disappeared (Article 179, item 3 of item 944 GK).

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

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

The insurer, notified of the circumstances that involve an increase in the insured risk, has the right to demand changes in the terms of the insurance contract or the payment of an additional insurance premium. If there are objections to this from the insured (beneficiary), the insurer has the right to demand the termination of the contract (clause 2 of article 959 of the Civil Code).

If the insured (beneficiary) fails to inform about the circumstances significantly increasing the insured risk, the insurer has the right to demand not only the termination of the contract, but also compensation for the losses caused to it, except for cases when such circumstances have already disappeared (Section 3, 4, Article 959 GK).

In the case of personal insurance, the specified consequences of changes in insurance risk during the validity period of the insurance contract do not come, unless they are expressly provided for in the contract (clause 5 of Article 959 of the Civil Code).

Insured event - an event that occurred under the insurance contract or a law, with the onset of which the insurer's duty to make an insurance payment (clause 2 of Article 9 of the Law on Organization of Insurance in the United States).

The policyholder under the property insurance contract is obliged promptly to notify the insurer of an insured event or its representative. The same obligation rests with the beneficiary, who is aware of the conclusion of the contract in his favor, if he intends to use the right to insurance compensation (clause 1 of article 961 of the Civil Code).

If the insured event is the death of the insured person or damage to his health, the term of the insurer's notification can not be less than 30 days (item 3 of Article 961 GK).

In the event of an insured event stipulated in the property insurance contract, the policyholder must take reasonable and accessible measures in the circumstances to reduce possible losses (Article 962 GK). The main responsibility of the insurer is the payment of the insured amount in the event of an insured event.

The sum insured is the amount of money that is established by the federal law and (or) determined by the insurance contract and on the basis of which the size of the insurance premium (insurance premiums) and the amount of insurance payment is established when an insured event occurs.

In order to designate insurance payments to be made with property insurance, the name " " insurance indemnity ", is used in the Civil Code, and in case of personal insurance - insured amount (thus, the concept of insured amount is used in two senses). The difference in these names is due to the fact that causing damage to life or health, the consequences of a certain age, etc., unlike the harm caused to property, can not be subjected to a valuation, and therefore the corresponding insurance payments are not restorative, and compensation (security) nature, i.e. are aimed at compensating for what can not be estimated in money.

In personal insurance contracts, the insured amount is determined by the parties themselves at their own discretion and is not subject to restriction. Similarly, the insurance amount is determined in civil liability insurance contracts (clause 3 of Article 947 of the Civil Code).

When insuring property or entrepreneurial risk, unless the insurance contract provides otherwise, the insured amount must not exceed their actual value (insurance value). This cost is considered:

• for property - its real value at the place of its location on the day of conclusion of the insurance contract;

• for entrepreneurial risk - losses from entrepreneurial activities, which the insurer, as can be expected, would have been incurred in the event of an insured event (clause 2 of Article 947 of the Civil Code).

If the insured amount specified in the property insurance contract or entrepreneurial risk exceeds the insured value, the contract is insignificant in terms of the insured amount exceeding the insurance value. As an exception, it is allowed to exceed the total insured amount in the property insurance of the same object from different insurance risks both for one and for individual insurance contracts, including with different insurers (item 1 of item 952 GK).

The insurer is charged with the execution of the insured event. The presence (or absence) of the insured event is certified by the insurance certificate (emergency certificate), drawn up on the basis of the insured's application by the insurer or the person authorized by him.

The obligation of the insurer is also compliance with insurance secrets, ie. non-disclosure of information received by him as a result of his professional activity about the insured, the insured person and the beneficiary, the state of health and property status of these persons. According to Art. 946 CC for violation of the secrecy of the insurer is liable under the rules of Art. 139 or 150 GK. However, Art. 139 GK since January 1, 2008 has lost its force, in connection with which it is required to make changes in Art. 946 GK.

The fulfillment of insurance obligations consists in the insurer's production of insurance payments to the insured (beneficiary) in the event of an insured event. In case of property insurance, the insurer is paid insurance compensation, named because the purpose of this payment is to compensate for losses incurred as a result of the insured event. In this case, only direct losses, , i.e. losses in the insured property itself or directly caused to other property interests of the insured (Clause 1, Article 929 of the Civil Code). Loss of profits or losses that go beyond the object of insurance (indirect losses), are not reimbursed by the insurer.

In those cases when the property is insured for an insured amount lower than the insured value and it was damaged, two systems are used to calculate the insurance compensation: proportional liability and the first risk.

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

The system of the first risk provides coverage for all losses caused by the insured event, but within the insured amount, regardless of the ratio of the sum insured and the insured value. Within the insured amount, the compensation of damages is the risk of the insurer (the first risk) (this name is the reason for the name of the system), and the loss in the remaining unpaid portion is the risk of the insured (beneficiary) (second risk).

In order to protect the interests of the insurer in property insurance, the law (Article 965 CC) establishes a rule on transferring to the insurer the rights of the insured to recover damages (subrogations). According to this rule, if the contract of property insurance does not provide otherwise, after payment of the insurance indemnity, the insurer shall transfer the right of claim, which the policyholder (beneficiary) has to the person responsible for losses compensated as a result of insurance.

The property insurance contract may provide the insured with the right of claim to the person liable for damages, which excludes subrogation. However, the condition of the contract, excluding the transfer to the insurer of the right of claim to the person, intentionally causing losses, is negligible (clause 1, Article 965 GK).

Fulfillment of the obligation for personal insurance in accordance with Clause 1, Article. 934 CC is carried out by paying the insurer a lump sum or periodically stipulated by the contract amount (insurance amount) to the insured (beneficiary). At the same time, the insurance amount is paid regardless of the amounts under other insurance contracts, as well as on compulsory social insurance, social security and in the order of compensation for harm (Paragraph 1, Clause 6, Article 10 of the Law on Organization of Insurance in the United States). This rule excludes the possibility of using subrogation in liabilities for personal insurance.

According to paragraph 1 of Art. 963 of the Civil Code, the insurer is released from payment of the insurance compensation or the insured amount, if the insured event occurred as a result of the intent of the insured, of the beneficiary or the insured person. The law provides for cases of exemption of the insurer from the obligation to pay insurance compensation under property insurance contracts in the event of an insured event as a consequence of the gross negligence

of the insured or the beneficiary.

The law establishes two cases when the insurer can not be released from the production of insurance payments, including when an insured event occurs due to intent of the insured or the insured person. First, the insurer is not exempt from payment of insurance compensation under the civil liability insurance contract for causing harm to life or health, if the harm is caused through the fault of the person responsible for it, i.e. the insured or the insured person (item 2 of item 963 GK). Secondly, the insurer is not exempted from the obligation to pay the insured amount payable under the personal insurance contract in the event of the death of the insured person if his death occurred as a result of suicide and by that time the insurance contract had been in effect for at least two years (Section 3, Article 963 GK).

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

• the effects of a nuclear explosion, radiation or radioactive contamination;

• military actions, as well as maneuvers or other military events;

• Civil war, popular disturbances of all kinds or strikes.

The exemption of the insurer from insurance payments may be due to causing losses by public authorities that are compulsory. So, if the contract of property insurance does not provide otherwise, the insurer shall be exempt from payment of insurance compensation for losses arising from the seizure, confiscation, requisition, seizure or destruction of the insured property by order of state bodies (paragraph 2 of Article 964 of the Civil Code).

The responsibility of the insurer for non-fulfillment or improper performance of the obligations imposed on it by law or by contract is determined in the legislation regulating certain types of insurance, insurance rules or a particular insurance contract.

The liability of the policyholder (the beneficiary, the insured person) is expressed in the non-receipt of all or part of the insurance compensation (insured amount). The grounds for refusal of the insurer to make an insurance payment are provided directly in Ch. 48 Civil Code (articles 961, 963, 964), and can also be established by special legislation or specified in a specific insurance contract.

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

• the recognition of the insurance contract as invalid because of the overstatement of the insured amount as a result of the fraud of the insured (in the 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 insured (beneficiary) during the period of the contract to discharge the obligation to immediately notify the insurer about the circumstances that entail an increase in the insured risk (paragraph 3 of Article 959 of the Civil Code).

The claim for claims arising from the property insurance contract, except for the contract of liability risk insurance for liabilities arising from the damage to life, health or property of other persons, may be brought within two years.

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Early termination of the insurance contract is possible if, after its entry into force, the possibility of the occurrence of an insured event has disappeared and therefore the existence of an insured risk has ceased (paragraph 1 of Article 958 of the Civil Code). In case of early termination of the insurance contract for such reasons, the insurer is entitled to a portion of the insurance premium in proportion to the actual period of validity of the insurance (Paragraph 1 of Item 3 of Article 958 of the Civil Code).

The insured (the beneficiary) has the right to refuse from the insurance contract at any time , if by the time of the refusal there were no circumstances leading to its early termination (clause 1, article 958 GK ). At the same time, the insurance premium paid to the insurer is not subject to refund, unless otherwise provided by the contract (paragraph 2 of clause 3 of article 958 of the Civil Code).

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

The types of property insurance are:

• Property insurance (Article 930 of the Civil Code)

• insurance of civil liability, including for causing harm and under the contract (Article 931, 932 GK);

• insurance of business risk (Article 933 GK).

The following types of personal insurance are regulated by the rules of civil law, taking into account their specifics:

• life insurance;

• insurance against accidents and diseases;

• Voluntary medical insurance.

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