<<
>>

§3. Features of indemnity against liability under the contract. Validity of the licensing of indemnity against liability under the contract.

Further it is offered to consider features of indemnity against liability under the contract.

1. Insurance of risk of a liability of infringement of the contract is supposed only in cases, statutory.

Among researchers of a question on the reasons of introduction of a similar interdiction of unity of opinions is not present. As a rule, following assumptions are resulted.

According to A.P.Lebedinova, the given norm of item 1 of item 932 GK the Russian Federation was the decision of a problem which at the moment of preparation of a part by the second GK the Russian Federation excited the legislator: necessities to bar abusings available at that time at indemnity against liability.

It is a question, first of all, about extended to the moment of acceptance of a part of the second GK the Russian Federation indemnity against liability of the borrower for a non-return of the received credit. Possible (and taking place in practice) cases of arrangement of the creditor and the borrower about a non-return of the given out (received) credit in a combination to the possible overestimated ("contractual") penal actions established in the credit contract, bore in themselves threat of financial stability of insurers and to indemnity against liability institute as a whole.

In the literature of that time opinions volume were expressed, that insurance of contractual responsibility allows to pay off from responsibility for guilty breach of contract by payment insurance премии1.

The similar opinion can be met and now.

According to A.Nikel, «... Indemnity against liability of the basic contractual obligations is not insured risk. It does not bear in itself(himself)

1 Rahmilovich V. A. New kinds of insurance in the Civil code//the Legal world. 1997. N 12. With. 11.

Elements of unexpectedness and accident at the moment of insurance making contract because insured accident approach - default of treaty obligations - depends on will, ability and experience of the insurer »1.

Earlier S.A.Gerasimenko's similar opinion that was resulted

«Similar rigid enough restriction is established by the Code not casually... In a normal situation the objective impossibility for the businessman executes the contractual obligations can to be caused the property problems available for the executor who have arisen for the reasons not dependent on it (property loss, losses from enterprise risks of the executor, etc.). But the risk of occurrence of the last is an independent subject of insurance, including as enterprise risk (item 930, 933 GK). To give to the businessman unlimited possibility to insure the responsibility for own breaches of contract - means to remove with

It the duty to execute contract »2.

According to S.V.Dedikova, there are more fundamental reasons of impossibility of indemnity against liability for infringement of any contracts, such insurance is capable to lead to falling of contractual discipline, that, in turn, can undermine in general the normal civil circulation in which basis lay dogovory and appropriate execution contractual обязательств3.

In our opinion, any of the resulted reasons cannot

To be the basis of similar legislative regulation which does not consider requirement of a society.

As a result subjects of the civil circulation find various ways of "detour" of the established interdiction. According to the operating

A.Problemy's 1 Nickel of insurance of the state contracts in the Russian market//Legal and legal work in insurance. 2009. N 2. With. 23.

2 Gerasimenko S.A.insurance//the Civil code of the Russian Federation. A part the second. The text. The comment. Alphabetically-index. M, 1996. With. 499.

3 Dedikov S.V.comment of the legislation regulating dogovory indemnities against liability of tour operators//Standard regulation of insurance activity. Documents and comments, 2007, N 3

//Union of Right Forces ConsultantPlus.

The legal regulation, only some kinds of activity admit

"Resolved" to insurance. Thus criteria of reference of kinds of activity at which realisation indemnity against liability under the contract is authorised, no.

By A.P.Lebedinov it is proved criticises such approach: «it turns out, that, having obliged in the Federal act" About estimated activity "appraisers to insure the civil liability, the legislator" has deduced from under suspicion "the given trade, recognising, that they (appraisers) in no event in any arrangement to other party of the basic contract are suspected cannot be (or, anyway, the probability similar is scornfully small) that you will not tell (and after all it indirectly and follows from the legislation) about representatives of variety of other trades with reference to whom in corresponding acts the norm about insurance of their responsibility is not provided. It is strange enough, that the similar state of affairs seems to normal and natural many dear lawyers, as big logic here not

It is looked through »1.

Recently in increasing frequency it is possible to meet positions of the scientists insisting on cancellation of the licensing of indemnity against liability under the contract.

So, S.V.Dedikov specifies: «obstacles to indemnity against liability for infringement of contracts from the point of view of the economic and legal nature of insurance does not exist. At the same time, really, it makes sense to raise the question about cancellation of the licensing of insurance of contractual responsibility because the insurance market on the development present stage already in a condition itself to provide the reasonable and cautious approach to this kind of insurance … Besides an interdiction existing in Russia for insurance of contractual responsibility without the special

1 Lebedinov A.P.question of insurance of risk of a liability of infringement of the contract//"Legal and legal work in insurance", 2005, N 4)//Union of Right Forces ConsultantPlus.

Permissions of the legislator it is perceived by participants of the insurance market as decided, and it is frequent enough in practice it bypass »1.

We support the given position. Really, neither legal, nor economic preconditions for introduction of the licensing of insurance of contractual responsibility are not present.

In our opinion, at the present stage the legislation on insurance of contractual responsibility contains enough of the legal mechanisms providing bar of claim by lapse of time of deterioration of contractual discipline of the parties owing to use of indemnity against liability under the contract.

First, deliberate default by the insurer of contractual obligations owing to intention releases the insurer from insurance indemnity payment (article 963 GK the Russian Federation).

Secondly, approach of the insured accident in insurance raises the size of the insurance premium in the future period.

The specified mechanisms do indemnity against liability under the contract effective for the insurer only in the event that the offence is for it casual and occurs not to its fault.

Besides, it is impossible to recognise consecutive the approach of the legislator in sphere of regulation of indemnity against liability under the contract as indemnity against liability under the credit contracts, become by the reason of the general interdiction for indemnity against liability under the contract, is authorised now. According to point 4 of article 31 of the Law on the mortgage the borrower (the depositor under the contract on the mortgage) has the right to insure risk of the responsibility before the creditor for default or inadequate execution of the obligation on credit return.

And, at last, it is necessary to notice, that with coming into force of the Federal act from 07.05.2013 №100-ФЗ «About modification in

1 Dedikov S.V.core of an indemnity against liability problem under the contract//the Jurist. 2010. N 1.//Union of Right Forces ConsultantPlus.

Subsections 4 and 5 sections of I part of the first and article 1153 of a part of the third Civil code of the Russian Federation »1, the presumption of negligibility of the void transaction is changed.

According to operating edition of article 168 GK the Russian Federation the transaction breaking the requirements of the law or other legal act is osporimoj if from the law does not follow, that other consequences of the infringement, not connected with invalidity of the transaction should be applied. On - former insignificant there is only a transaction encroaching on public interests or the rights and interests protected by the law of the third parties if by the law it is not established, that such transaction osporima.

Article 932 GK the Russian Federation, limiting indemnity against liability under the contract only the cases resolved by the law, does not establish a consequence of invalidity of the contract of insurance. Thus, the insurance contract, the prisoner in absence of the legislative permission, is the voidable contract.

Who can challenge such contract?

(The insurer and the insurer) to challenge the parties of the contract of insurance the indemnity against liability contract under the contract, the prisoner in infringement of requirements of the law, in our opinion, cannot.

By new rules, the party under the contract is limited in the right to challenge the transaction in following cases:

- If she knew or should know about presence of the bases for contest of the transaction,

- The behaviour of the party after making deal gave the basis to other persons to rely on the transaction validity.

Let's note, as before change of rules of contest of the transaction courts refused to insurers in a recognition of contracts of indemnity against liability under the void contract contract as contradicting the law. So, Presidium of the Supreme Arbitration Court of the Russian Federation in the decision №16996/09

1 Meeting of the legislation of the Russian Federation, 2013, №19, item 2327.

On business № А43-27008/200839-731 from 13.04.2010 has specified, that the conclusion of similar contracts is extended in practice of the insurance company and it, being the professional participant of the market of insurance services and including itself the diligent counterpart, realises legal effects of the conclusion of the given contracts. Having referred within the limits of the present business on discrepancy of the contract of insurance to the law, the insurance company has broken limits of realisation of the civil rights, the Russian Federations established by article 10 GK.

Thus, the contract parties (the insurer and the insurer) cannot recognise the insurance contract, the prisoner in absence of the permission of the legislator, as void.

To other persons who are not the party under the transaction, the legislator gives the right to transaction contest only in cases, statutory (item 2 of item 166 GK the Russian Federation). Such persons are not specified by operating insurance legislation.

Thus, now legal grounds for contest of the contract of indemnity against liability under the contract actually are absent.

2. Under the contract of insurance of risk of a liability of infringement of the contract the risk of responsibility of the insurer, instead of any other person can be insured only. The contract of insurance mismatching this requirement, is insignificant.

The given norm is caused by features of indemnity against liability under the contract.

Thus, at indemnity against liability under the contract the figure of the insured person is absent.

3. The risk of a liability of infringement of the contract is considered insured in favour of the party before which on conditions of this contract the insurer should bear responsibility, - the beneficiary even if the insurance contract is concluded in advantage

Other person or in it it is not told, in whose advantage it is concluded.

Thus, as the beneficiary under the indemnity against liability contract under the contract the creditor under the basic contract before which the insurer-debtor is obliged to bear responsibility even if the insurance contract is concluded in favour of other person always acts.

4. In indemnity against liability under the contract there is no right of a presentation of the direct claim of the beneficiary to the insurer about compensation of the caused losses.

It was already noticed, that such right is directly provided at tort liability insurance (item 4 of article 931 GK the Russian Federation).

In §1 chapters 2 of the present research the given question was already considered: we have come to conclusion that granting to the beneficiary under the indemnity against liability contract under the contract of the right of the direct claim to the insurer mismatches the purposes of the given kind of insurance as to establish insured accident occurrence it is possible only with the assistance of the debtor.

5. The sum insured is defined at the discretion of the parties.

It was already noticed, that the indemnity against liability volume under the contract is not limited to the indemnification under the broken contract, it also includes sanctions for infringement of treaty provisions (the penalty, percent for using another's money resources), and other expenses of the counterpart of the insurer, arisen owing to infringement by the insurer of the contract.

It is obvious, that at the moment of insurance making contract to define responsibility volume it is impossible. Therefore the sum insured is defined any way as agreed the insurer and the insurer.

In compulsory insurance cases the minimum sizes of the sum insured are established by the law (point 3 of article 936 GK the Russian Federation).

6. Indemnity against liability under the contract is

In not named way of maintenance of execution of obligations.

The question on indemnity against liability reference under the contract to not named ways of maintenance of execution of obligations is debatable.

GK the Russian Federation in article 329 point 1 the open list of ways of maintenance of execution of obligations is generated.

As ways of maintenance of execution of obligations understand the additional legal means specially provided for provisional remedy of valuable interests of the creditor by creation of special guarantees of appropriate execution of the obligation должником1.

The legislator is inconsistent in definition of the nature of insurance

As way of maintenance of execution of obligations: in one cases it carries indemnity against liability under the contract to such ways, in others – is not present.

So, the Law about kontsessionnyh agreements in subitem 6.1 of item 1 of item 10 provides, that kontsessionnoe the agreement should include conditions, including, about ways of maintenance of execution by the concessionary of obligations on kontsessionnomu to the agreement (granting of the irrevocable bank guarantee, transfer by the concessionary kontsedentu in the pledge of rights of the concessionary under the contract of the bank contribution (the deposit), realisation of insurance of risk of responsibility of the concessionary for infringement of obligations on kontsessionnomu to the agreement), the sizes of given maintenance and term on which it is given.

At the same time, for example, point 2 of article 587 GK the Russian Federation it is provided, that by the essential treaty provision, providing transfer under payment of the rent of a sum of money or other personal estate, the condition establishing a duty of the payer of the rent to give maintenance of execution of its obligations (article 329) is or to insure in

1 Russian civil law: the textbook: in 2 t. / V.V. Vitrjansky, V.S.Em, N.V.Kozlova, etc.; otv. red. E.A.Sukhanov. 2 izd., a stereotype. M: the Statute, 2011. T. 2: the Liability law. Union of Right Forces the Adviser Plus.

Advantage of the addressee of the rent risk of the liability for nonperformance or inadequate execution of these obligations.

In the doctrine of the uniform approach also is not present.

One scientists carry indemnity against liability under the contract to ways of maintenance of execution of obligations (A.V.Bormotov 1, M.I.Braginsky 2, S.V.Dedikov 3, L.Yefimov 4, A.V.Latyntsev 5, T.B.Zamotaeva6).

V.K.Rajher in 1928 specified on obespechitelnuju insurance function, having allocated three groups legal obespechitelnyh institutes - contractual, based on the law and insurance in which «function of maintenance of the economic blessings reaches the highest pressure» 7.

According to other scientists, obespechitelnoj function insurance not

Possesses (E.G.Komissarova and D.A.Torkin 8, A.N.Lysenko 9, E.A.Pavlodskij10, O.M.Sviridenko11, M.Chirkova12).

Traditionally, among signs obespechitelnogo obligations allocate:

- Its accessory in relation to the basic obligation character;

- obespechitelnaja (guaranteeing) функция1.

1 Bormotov A.V. obespechitelnaja insurance function in the Russian civil law: Dis. … kand. jurid. Sciences: 12.00.03. Perm, 2010. With. 123.

2 Braginsky M. I, Vitrjansky V.V. n. The book the second: dogovory about assignation. – M: the Statute, 2009. С.636.

3 Dedikov S.V.legal of an insurance problem in the mortgage//the Housing law. 2007. №9. With. 44-45. Indemnity against liability: legal support, anderrajting, marketing. The practical grant.

M: the Publishing house "Regulations-media", 2011. With. 45.

4 Yefimov L.Strahovanie as a way of maintenance of obligations under the credit contract//the Economy and the right. 1994. №7. With. 10.

5 Latyntsev A.V.maintenance of execution of treaty obligations. M: the Leks-book, 2002. With. 285.

6 Zamotaeva T.B.maintenance of rent payments by insurance//«Laws of Russia: experience, the analysis, practice», 2006, N 12//Union of Right Forces ConsultantPlus.

7 Rajher V. K. A sketch of the major transactions of the Soviet economic right//Magaziner JA.M.Soviet the economic right. L, 1928. With. 450.

8 Komissarova E.G., Torkin D.A.not ways of maintenance of obligations in civil law. M: AspektPress, 2008. With. 144.

9 Lysenko A.N.legal obespechitelnye the measures which have been not mentioned in chapter 23 GK the Russian Federation: qualification problems//Measures of maintenance and a responsibility measure in civil law: the collection of articles / hands. A bus

kol. And otv. red. M.A.Rozhkova. M: the Statute, 2010//Union of Right Forces ConsultantPlus.

10 Pavlodsky E.A.influence GK the Russian Federation on regulation of bank activity. In kn.: the New Civil code of Russia and the branch legislation. M, 1995. With. 42.

11 Sviridenko O.Strahovanie of credit risks//the Economy and the right. 1996. №7. With. 119-127.

12 CHirkova M.Strahovanie and cession as ways of credit maintenance in Russia//the Economy and the right. 1994. №7. With. 10-18.

Let's consider the specified signs with reference to insurance.

Indemnity against liability under the contract aktsessornosti, in our opinion, corresponds to a sign. If the basic contract stops or nullified, execution of obligations on which has been insured, the contract of insurance of contractual responsibility owing to that the insured risk (point 1 of article 958 GK the Russian Federation) ceases to exist stops also.

Maintenance (guarantee), according to B.M.Gongalo2 and V.A.Belova3 with

The reference to G.F.Shershenevicha, it can be reached by three ways:

1) or by means of stimulation of the debtor to appropriate execution;

2) or by creation of additional possibilities of satisfaction of valuable interests of the creditor who has suffered from default, warranting of their satisfaction;

3) or, at last, achievement of both purposes - both stimulations of the debtor, and warranting of interests of the creditor.

In case of indemnity against liability under the contract, in our opinion, obespechitelnaja function is reached both by stimulation of the debtor, and by warranting of interests of the creditor.

In the doctrine with reference to indemnity against liability under the contract it is considered, that stimulating function is absent. So, A.V.Bormotov specifies: «stimulating function of a way of maintenance of execution of the obligation does not work at making contract of insurance of risk of a liability of infringement of the contract. Perhaps,

1 Belov V. A. Theoretical problems of the doctrine about ways of maintenance of execution of obligations//"Laws of Russia: experience, the analysis, practice", 2006, N 12//Union of Right Forces ConsultantPlus.

2 Gongalo B.M.doctrine about maintenance of obligations. Theory and practice questions. M: the Statute, 2004//Union of Right Forces ConsultantPlus.

3 Belov V. A. Theoretical problems of the doctrine about ways of maintenance of execution of obligations//"Laws of Russia: experience, the analysis, practice", 2006, N 12//Union of Right Forces ConsultantPlus.

On the contrary, the insurance contract allows the debtor to concern more scornfully execution of the obligations »1.

With such conclusion, in our opinion to agree it is impossible.

It was already specified, that deliberate approach of the insured accident (default of the contractual obligation because of the insurer) releases the insurer from insurance indemnity payment. Thus, the debtor is interested in execution of the contractual obligation.

Also it is necessary to consider that fact, that approach of the insured accident in insurance raises the size of the insurance premium in the future period, that, certainly, has stimulating character for the insurer.

In general it is necessary to recognise, that is far not all the ways long maintenance of execution of obligations carry out stimulating function. Such ways concern, for example, the guarantee and bank гарантия2. They do not impose any additional encumbrances on the debtor, and have the purpose to guarantee to the creditor reception due from the third parties when the defaulter breaks the contract.

As guaranteeing function understand maintenance of interests of the creditor in the obligation on execution by the debtor of the obligation properly. Indemnity against liability under the contract, certainly, guarantees interests of the creditor as creates additional possibility of satisfaction of valuable interests of the creditor who has suffered from default. In this case the rights of the counterpart of the insurer under the contract (beneficiary) are guaranteed by that in case of default or inadequate execution by the insurer of contractual obligations responsibility of the insurer will be compensated by the insurer.

1 Bormotov A.V.indemnit under the contract as a way of maintenance of execution of obligations.//the Bulletin of the Perm university. 2010. ³3 (9).

2 Indemnity against liability: legal support, anderrajting, marketing. The practical grant. M: the Publishing house "Regulations-media", 2011. With. 46.

Thus, indemnity against liability under the contract answers the signs shown by a way of maintenance of execution of the obligation.

Thereupon, in our opinion, indemnity against liability under the contract is not named GK the Russian Federation in the way of maintenance of execution of obligations that the Russian Federation is supposed by a part of 1 article 329 GK.

<< | >>
A source: Nozhkina Alena Aleksandrovna. INSURANCE OF RESPONSIBILITY UNDER THE AGREEMENT. Thesis for the degree of candidate of legal sciences. Moscow –2014. 2014

More on topic §3. Features of indemnity against liability under the contract. Validity of the licensing of indemnity against liability under the contract.:

  1. §4. Otgranichenie indemnities against liability under the contract from indemnity against liability for injury
  2. Chapter 2. Concept and the legal nature of indemnity against liability under the contract. Otgranichenie from tort liability insurance
  3. §2. Legal regulation of relations of indemnity against liability under the contract in Russia at the present stage
  4. §3. Indemnity against liability under the contract in system of kinds of property insurance
  5. Chapter 1 indemnity against liability Legal regulation under the contract
  6. §1. History of development of indemnity against liability under the contract in Russia
  7. §2. The legal nature of insurance of professional responsibility. A parity with indemnity against liability under the contract and otgranichenie from insurance of non-contractual responsibility of subjects of professionalwork
  8. §2. The Insured risk and the insured accident at indemnity against liability under the contract
  9. Nozhkina Alain Aleksandrovna. INDEMNITY AGAINST LIABILITY UNDER the CONTRACT. The dissertation on competition of a scientific degree of the master of laws. Moscow, -2014 2014
  10. § 2.4. Indemnity against liability of members of controls of economic societies.
  11. §1. Concept of indemnity against liability of professionals. A legal status of subjects of professional work
  12. Chapter 1. Indemnity against liability as a way of protection of subjects of professional work
  13. § 3. Execution and a liability of infringement of the contract of insurance. The termination and invalidity of the contract of insurance
  14. § 3.1. The legal nature of the contract of insurance of a civil liability individual, members of joint executive powers of economic societies
  15. 2.1. Concept of the contract on rendering of paid educational services and its place in liability law system
  16. § 3. The state contract on delivery of the goods for law-enforcement bodies of the Russian Federation and its place in liability law system
  17. THE CHAPTER I CONCEPT, THE PLACE AND THE ROLE OF THE OBLIGATIONS ARISING FROM THE CONTRACT OF DELIVERY FOR LAW-ENFORCEMENT BODIES, IN LIABILITY LAW SYSTEM
  18. § 2. A subject of the contract building podrjada as its qualifying sign and features of a legal element of a subject of the contract