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§2. Self-regulation and insurance of a civil liability of associations of proprietors of habitation

During I All-Russia meeting of the operating organisations ^ in the housing sphere, passing on October, 17th, 2006 in Moscow the bill of amendment in ZHK the Russian Federation, devoted to introduction of system of the self-adjustable organisations (further - SRO) in sphere of management has been promulgated by apartment houses.

According to the bill, SRO, the consolidating operating companies and other organisations working in sphere of management by apartment houses, should incur, in particular, the control over observance by the members of rules And ' standards in professional work, settlement of disputes, between them, and also representation of interests of the members in their relations with authorities, public organisations and citizens.

The initiative on amendment in ZHK the Russian Federation has been caused by absence for that moment of the special law. At the moment the Federal act from December, 01st, 2007 № 315-FZ «About the self-adjustable organisations» already has become effective and operates since December, 17th, 2007.

The leading legal adviser of Fund «Institute of economy of a city» D.Gordeyev, making comments on the given law has noted: «In spite of the fact that Institute of economy of a city positively относится* to institute SRO, the given innovations are capable to harm to the developing market of efficient control apartment houses which, at the moment, experiences the difficulties of practical character connected with an unsatisfactory condition of apartment houses, insufficient volume and poor quality of carried out services and works, high losses of power resources in houses».

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The main reason of the specified problems, according to D.Gordeyev, absence of a competition, as in the market of services in management is

http://www.regnum.ru/news/900733.html 113 Gordeyev D.Samoregupnruemye of the organisation in the field of management of the multiroom

Houses.

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Apartment houses the municipal operating organisations dominate. Local governments in practice, often counteract occurrence of the private operating companies on the market, continuing to mete houses and to create advantages municipal managing director (MUPam, GUPam). The most extreme position of city administration is creation of Open Society with absolute add city or area participations that allows to specify in the reports in presence of private managing directors. Formal signs are observed, and practically there is a signboard change. Municipalities illegally supervise financial streams through «transit accounts» settlement-cash centres. Besides up to present time there is no system of the effective control over execution by proprietors of premises of burden of the maintenance of the community property. All listed reasons neustranimy system SRO introduction.

At the same time, the idea of self-regulation consists that the state reduces superfluous both unjustified regulating and supervising influence by commercial relations: protection of the private interest of businessmen against intrusion of public structures in sphere of their professional work as businessmen accept responsibility for the participants who have entered into the given union raises.

In the countries of the developed economy of association of businessmen in the noncommercial organisations for self-regulation of the markets and professional work were created for a long time evolutionary by under own initiative, proceeding from comprehension of necessity of maintenance of the effective mechanism of the control over maintenance of performance of managerial process.

Necessity of introduction of process of self-regulation for our country it is caused also by corruption mechanisms, the bureaucracy control over natural laws of development of business, that its efficiency in the market of services of management of apartment houses, as a whole, brakes. Introduction SRO will allow consumers

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Corresponding services to be guided by system of the internal control and mutual responsibility of members given ^ the organisation by default establishing supervision over observance of requirements of the current legislation and corporate ethics, and also depriving infringers of the right to consist in its membership and to enter the market with the offer of competitive services.

In spite of the fact that in Russia it is introduced and the system of the state control in sphere of management with the apartment houses which structure is formed by the state housing inspections of regions, bodies Rospotrebnadzora and Rostehnadzora operates, - efforts of these bodies are insufficient and sprayed. In a number of subjects of the Russian Federation zhilinspektsii are liquidated under the decision of regions, in other part of subjects zhilinspektsii are so small, that hardly have time to answer letters.

The monitoring system behind a condition of multiroom and individual houses requires serious optimisation. Now for all admitted нарушения* to responsibility involve associations of proprietors of habitation and other specialised organisations exercising administration by apartment houses.

And, though self-regulation urged to displace state intervention in economy or to lead to reduction of such intervention, including within the limits of the control, the novel does not contain any positions about the termination or restriction of powers of supervising bodies.

In our opinion instead of voluntary association of subjects of enterprise activity in SRO it is necessary to provide compulsion of membership of the operating organisations in SRO; and the management contract can conclude proprietors only with the managing directors who are members SRO.

However, many experts specify that system SRO introduction will face in practice set of problems. «A requirement establishment about obligatory membership of the operating organisations in SRO as conditions

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Activity realisation on management of an apartment house to equivalently introduction of licensing ' such activity, - D.Gordeyev approves,-... That will create superfluous administrative barriers to formation of competitive relations on management of apartment houses, occurrences on this market of the private operating organisations, that as a result, is capable to paralyse the market and a competition »114. As an illustration such example can serve: the self-adjustable organisation is created on the basis of the former or operating municipal enterprises accepting standards, obviously impracticable for individual businessmen and for the private organisations which are not possessing office premises for placing ^ thus at MUPov of such premise are available, and the rent on them is absent, as premises are carried to municipal available housing. Introduction of obligatory membership will create conditions for relations of purchase and sale of the so-called "entrance" ticket »on the management market at the reference of the new participant to leading managing directors компаниям* about transfer of a part of houses to its management. Answer SRO is obvious, especially taking into account last transformations to Moscow, providing transfer of stock privatised DEZov in confidential management to the several large building organisations. In this situation about a competition to speak it is not necessary.

Other example the case of replacement from the market of corresponding services of the objectionable participant can be. Status SRO allows it to develop independently system of standards and mechanisms of the control over its observance. Thereupon, if by results of planned check of activity of organisation SRO reveals the essential lacks influencing reputation SRO, it does not need even to initiate litigation as the exception of members of such organisation is spent by the decision of its participants by voting. While the excluded participant will be

Gordeyev D. The self-adjustable organisations in the field of management of apartment houses. С.68.

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To petition for restoration in the rights, in houses dropped out of sphere of its management there will be new managing directors. And in this case the decision of proprietors of premises on a choice of the former managing director will be simply ignored.

Such system is programmed on abusings and kelejnost. There is a conflict of interests of members SRO and persons who have intention to get the status of the operating organisations and to carry out activity on management of apartment houses. Creation SRO by the operating organisations, afillirovannymi with bodies публичной* the authorities, will lead to restriction of a competition in formation to the markets of management of apartment houses.

Predicting a situation which can slozhitsjapri formation SRO with obligatory membership in management sphere mnogokvartirnymi'domami with that situation which exists in building where associations operate some years, it is necessary to recognise, that today association ' (prototypes SRO) still, much to our regret, have not typed corporate culture of self-checking.

It it is possible to tell and about self-regulation to the management sphere, only the given sphere is estimated in units of the created associations. The market of services of management, apartment houses only develops. In this connection at the given - stage it is expedient to give possibility to the operating organisations самостоятельно* on a voluntary basis to form the associations or the unions. For this purpose there are no standard obstacles. Such associations should prove, that do not cover unfair or incompetent managing directors, and can demand from the members of performance of norms of the legislation and accepted in SRO the quality standards and rules of business ethics.

Associations created by operating organisations or the unions can carry out functions of the self-adjustable organisations in process of formation of market relations in sphere of management of the multiroom

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Houses, to development of optimum conditions and standards of mutual relations with proprietors of premises and counterparts (contract and resursosnabzhajushchimi the organisations).

Besides, in the absence of licensing of activity of the operating organisations it would be expedient to establish requirements to presence in the organisation of the qualified experts, and also requirements to the minimum size of the charter capital of such organisation. Besides, for maintenance of interests of proprietors of premises probably introduction of compulsory insurance of a civil liability of the operating organisations under contracts of management of an apartment house. At this insurance the sum should correspond with cost of the community property of an apartment house, and also the size of means of the proprietors brought on the maintenance and repair of specified property.

According to N.B.Grishchenko115, one of the main problems limiting development of insurance of professional responsibility in our country, imperfection of its legal regulation is. The question on an accessory of insurance of professional responsibility to this or that branch in insurance classification therefore should be solved. According to item 929 GK the Russian Federation the given kind concerns property insurance branch; according to positions of item 4 of the Law of the Russian Federation from November, 27th, 1992 № 4015-1 «About the organisation of insurance business in the Russian Federation» 116 it is one of kinds in indemnity against liability branch. Thus resulted positions mismatch the international classifications of insurance. So, according to the classification of insurance accepted in the European Union, civil liability insurance in which frameworks indemnity against liability of the professional is already defined is allocated.

As positions GK the Russian Federation have advantage before others

115 Grishchenko N.B.//Legal regulation of insurance of professional responsibility in Russia. Москва.2008.

116 Russian newspaper. № 6. 1993.

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Acts, the analysis of insurance of professional responsibility in the light of positions gl. 48 GK the Russian Federation allows to consider civil liability insurance as a kind professional, made on an insurance case «responsibility under the obligations arising owing to injury of a life, health or property of other persons», according to item 931 GK the Russian Federation, or on an insurance case «responsibility under contracts» - item 932 GK the Russian Federation, or on an approach case «losses from enterprise activity» - item 933 GK the Russian Federation. However in practice it leads to excessive alternativeness and discrepancy. Insurance companies at licensing of this kind of insurance frequently do not consider a number of the essential moments in the conditions of carrying out of insurance of professional responsibility.

Positions of the item of item 935 - 937 GK the Russian Federation and item 3 of the Law of the Russian Federation «About the organisation of insurance business in the Russian Federation» are defined content requirements of the acts establishing introduction of a kind of compulsory insurance, and responsibility for their execution. At the moment the criticism of experts concerning legislative vacuum concerning insurance of separate kinds of activity is fair. So, indemnity against liability operating apartment houses is established only at legislation level субъектов.* Besides such responsibility, despite its professional character, defined as "civil", and as a whole ^ does not come under to licensing.

From our point of view, the sphere of management of apartment houses deserves bolshego attention from the legislator. And the special law regulating given sphere could consider a number of the important parametres of indemnity against liability of the managing director: the objects which are coming under to compulsory insurance; risks from which they should be insured; the minimum sizes of sums insured, and also as a whole conditions and an order of carrying out of such insurance. Besides, insurance of a civil liability of the managing director should become an obligatory component

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Process.

Compulsory insurance of responsibility of managing directors for. The account of citizens, and also obustavnomkapitale not less than one million roubles will deduce requirement introduction from the market of services in management of the organisation apartment houses, incapable to bear property responsibility for the professional work before korporativnym.klientom, including, before proprietors of premises in the apartment houses which have selected, association of proprietors of habitation as a way of management - and. Delegating such powers to the special subject, member SRO.

According to J.B.Fogelsona., in? The normative act which has established compulsory insurance, should be - defined: persons who are obliged to insure; persons, whose interests come under to insurance; insured interests; dangers, from наступления* which they, are insured; the minimum insurance sums-.

The analysis of the regulatory legal acts anyhow providing insurance professional, of responsibility, in comparison, to the resulted requirements testifies to almost full - discrepancy of these certificates to compulsory insurance requirements.

Presence of requirements to the insurance which is carried out as obligatory in »conformity from the item 3'Закона« About the organisation strahovogo^dela »and item 935 - 936 GK the Russian Federation, at the analysis of principal views of insurance of professional responsibility is not expressed. With drugojhtorony, absence in acts of the basic conditions страхования* does not cancel compulsion такого* insurance for the persons mentioned in it.

Besides, there are also other not less important omissions. So, a part of the persons obliged by positions of considered normative acts to insure the responsibility, are physical persons (the arbitration managing director, the notary, the lawyer), a part - legal bodies (the auditor, a customs carrier and the broker); a part - both the first, and the second (appraisers,

117 Fogelson JU.B.comment to the insurance legislation. M, 2000. With. 121.

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Builders).

Other professional persons (trade) are allocated also, insurance of which professional responsibility in a recommendatory order contains in normative acts, thus, in our opinion, some of the listed requirements should be obligatory.

Indemnity against liability operating an apartment house in the name of the specialised organisation carry to kinds of insurance of a civil liability, instead of professional as characterise occurrence of the responsibility which has been not connected directly with performance of professional obligations. However, activity on management of an apartment house cannot be carried out by the persons who are not knowing about process as in this case, it will be a question of straight losses to a home ownership so and about other kind of insurance.

According to the concept of insurance of a civil liability of the contract organisations which are carrying out operation and repair of available housing of a city, for the harm caused to inhabited both uninhabited premises and objects of common use in apartment houses, approved by the decision

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The governments of Moscow from September, 23rd, 2003 №840-1111 - civil liability insurance urged to provide protection of valuable interests both these organisations, and employers, tenants, owners, proprietors of premises and (or) the organisations operating available housing which have suffered losses as a result of caused harm.

According to item 1064 GK the Russian Federation, the harm caused to the person or property of the citizen, and also the harm caused to property of the legal person, comes under to compensation in full the person who has harmed.

Thus harm can arise for the reason:

- Default or untimely performance of necessary works;

- Lacks of the performed work (the rendered service), shown as

118 Collection of is standard-legal base on development of self-management of citizens in zhshiptsnoj to sphere, ch. 1. Moscow. 2008.

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By manufacture of works in the provided terms, so и* in process

The operation of buildings subsequent after repair. For full realisation, positions of the civil legislation on compensation of the caused harm, reduction ^ the budgetary expenses connected with it-unforeseen and increase of efficiency of protection ^ housing laws of citizens it is offered to use the mechanism добровольного* strahovanija'otvetstvennosti contract organisations before the third parties. Thus, introduction of the mechanism of insurance; to a civil liability will allow:

- To provide, timely sh the full indemnification to owners and (or) operating ^ жилищным* fund - to the organisations - of the losses connected with professional dejatelnostjupodrjadnyh of the organisations;

- To cut down irrational expenses of the city budget;

- To enhance the responsibility contract organisations »for quality of carried out works.

Insurers, under the insurance contract the contract organisations which are carrying out ekspluatatsiju.i repair of available housing should ^ act-. Thus a source of payment insurance премии* are own means of these organisations.

Now ' a theme страхованияі the civil: responsibility of managing directors the multiroom? Houses, mentions also the special organisations investigating this problem.

So, the city centre of reform in housing and communal services at the government of Moscow periodically holds educational and practical seminars. On July, 3rd, 2008 in Moscow the seminar, посвященньїйі to questions of insurance of a civil liability of the operating organisations in housing sphere has taken place. The urgency of the given problematics comes to light at different levels and follows from the name of a theme of a seminar: «Insurance of a civil liability of managing directors and contract organisations. Insurance of the community property of proprietors of premises in apartment houses». The curator of the given theme

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Has acted GU «the City centre of housing insurance» 119.

The head of the Center of reform in ЖКХ* Irina Shramko, shining a problematics of the declared theme, has informed: «Moscow is a unique city in Russia where the insurance system develops within the limits of the city program that allows to provide protection of available housing and from the city budget means for its realisation» go.

She has noticed, that the major document - in this area is the governmental order of Moscow from April, 15th, 2008 №299-1111 «About measures on development of insurance of a civil liability of managing directors and contract organisations for injury to premises and objects of the community property of proprietors of premises in apartment houses» 120.

By words заместителя* head GU of a city of Moscow «the City centre of housing insurance» Irinas Chertkovoj, «... The Moscow complex system of insurance includes insurance of premises, the community property in an apartment house and a civil liability of the contract and operating organisations. Thus insurance of objects of the community property provides payment of insurance grants for a possible damage at a rate of 40 %. Such participation of the Government of Moscow allows to pay and an insurance premium payment part» 121.

It is necessary to notice also, that managing directors have taken part in seminar work and contract organisations, representatives of associations of proprietors of habitation and housing co-operatives for whom insurance of risks in some cases is reliable way to minimise financial losses within the limits of legitimate activity.

«Competent use of possibilities of insurance, on the one hand, allows to protect the rights and interests of the population, with another — to minimise expenses of managing directors and contract organisations, providing creation of an effective control system and modern, civilised,

119 On newspaper materials the Moscow environment. 2008. July.

120 Bulletin of the Mayor and the Government of Moscow. № 25. 2008. On newspaper materials the Moscow environment. 2008. July.

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Competitive market ZHKU », - Irina Shramko has concluded.

The commission of the Moscow Municipal duma on municipal economy and the housing policy at session suggests to suppose to work in housing and communal services sphere only those operating companies which have financial guarantees.

The chairman of the specified commission S.Orlov has noticed, that as financial guarantees can be applied either the indemnification bank guarantee, or civil liability insurance. The size of a financial guarantee is offered to establish in the sum not less than 10 million roubles, term of its action - not less than three years. As the guarantor or the insurer the organisation registered in the Russian Federation can act.

«In case of default or inadequate execution by the operating company of the obligations proprietors of apartments will have the right to make the demand about the indemnification directly to the organisation,

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Given financial guarantee », - was declared by S.Orlov.

Data on the operating organisation having a financial guarantee, it is expedient - to bring in the register of the operating organisations of the subject of the Russian Federation in which territory activity on management of multiroom apartment houses is carried out. Besides, the operating organisation comes under to entering into corresponding registers of all subjects of the Russian Federation in which territory activity realisation on management многоквартирными*жилыми is supposed houses. The indemnification at the expense of means of a financial guarantee should be carried out by the organisation which has given a financial guarantee, in conformity with the legislation of the Russian Federation.

Introduction of the mechanism of financial guarantees of the operating organisations will allow to exclude danger of occurrence in the market of the unfair commercial organisations applying for management by apartment houses. Besides it, the size of a financial guarantee should correspond with the fiscal obligations taken up by managing directors

On newspaper materials the Moscow environment. 2008. July.

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The companies.

The governmental order of Moscow «About measures on development of insurance of a civil liability of managing directors and contract organisations for injury to premises and objects of the community property of proprietors of premises in apartment houses» the decision on distribution of experience of insurance of a civil liability of contract organisations on the organisations of various patterns of ownership performing works and rendering services under the maintenance and repair of inhabited, uninhabited premises and objects of the community property of proprietors of premises in such houses without attraction of contract organisations operating apartment houses is accepted.

In 2008-2009 of function on coordination, monitoring and methodical support of activity of the insurance organisations are assigned to Department of a housing policy and available housing of a city of Moscow and GU by of Moscow «the City centre of housing insurance».

To the organisations operating apartment houses, it is recommended to conclude dogovory civil liability insurance; to expose to the contract organisations involved under the contract for rendering of services or performance of works, the requirement about insurance of their civil liability; to be guided at the coordination with the insurance organisations of conditions of contracts of insurance of a civil liability by the methodical materials recommended by the corresponding order of Department of the housing policy and available housing of a city of Moscow from October, 16th, 2006 №870 «About methodical support of experiment on insurance of a civil liability of the contract organisations which are carrying out works under the maintenance and repair of available housing in to Moscow» 123.

To the insurance organisations it is specified in necessity of the conclusion

The collection of is standard-legal base on development of self-management of citizens in housing sphere, ch. 1. Moscow. 2008.

161 agreements on interaction on development of the given kind of insurance with GU of Moscow «the City centre of housing insurance» and granting under the form developed by it and in the terms adjusted with it received by the given kind of insurance of the information of a statistical property; formations by the given kind of insurance of fund of precautionary actions for use of its means for actions for the prevention of approach of insured accidents and reduction of the size of their consequences.

It is entrusted to prefectures of administrative districts of a city of Moscow to provide entering into the contract draught of management with an apartment house, a part of the competitive documentation for carrying out of open competitions on selection of the operating organisations for management of the apartment houses, developed according to item 8.3 of the order of the Government of Moscow from September, 13th, 2007 №1973-РП «About the organisation and carrying out of open competitions on selection of the operating organisations for management of apartment houses in the city of Moscow» 124, as one of conditions the conclusion operating organisation the-winner of competition of the contract of insurance of a civil liability for injury to inhabited, uninhabited premises and objects of the community property of proprietors of premises in a course or owing to performance of works in apartment houses operating organisation.

Insurance group "РАСО" and «the City centre of housing insurance» of Moscow have signed agreements on an order of interaction at carrying out of actions for insurance of a civil liability of managing directors and contract organisations in capital territory. Responsibility of managing directors and contract organisations for injury to premises and objects of the community property of proprietors of premises in apartment houses becomes object of insurance.

Similar measures help to protect valuable interests and

The bulletin of the Mayor and the Government of Moscow. № 54. 2007.

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Housing laws of proprietors and employers of habitation, and give to customers high-grade insurance protection on the compensation of harm caused to proprietors of habitation at performance repair and works under the maintenance of habitation.

Principal views of works which can be insured: planned repair of the house, roof and facade repair, an accomplishment of domestic territory, electrosupply repair, under abnormal condition-maintenance service at home etc.

The given agreements are signed within the limits of the Order of the Government of of Moscow «About development of insurance of a civil liability of the contract organisations which are carrying out works under the maintenance and repair of available housing in a city of Moscow» from June, 7th, 2006.

On conditions of the given agreements of insurance group "РАСО" has the right to carry out insurance in three districts of Moscow: Central, Northern and Jugo-east.

Thus, once again we will underline, that within the limits of activity legal regulation on management of apartment houses, it is necessary to enter such forms of the control over realisation of contractual activity of managing directors which would allow to carry out it with the least losses for proprietors of premises of an apartment house. Thus proprietors should have guarantees of rendering of high quality of services in the corresponding market, by means of the mechanism of self-regulation of professional participants of the market and introduction of institute of insurance of a civil liability of managing directors.

The bulletin of the Mayor and the Government of Moscow. N 35. 2006.

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A source: Zakuskin Alexander Andreevich. Civil-law regulation Activity of association of proprietors Habitation on management of an apartment house. The dissertation on competition of a scientific degree of the candidate legal naukju Moscow - 2009. 2009

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