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1.2. Professional responsibility as a civil responsibility version, its concept, signs and kinds

«As legal responsibility is called application to the person who has made an offence, the measures of the state compulsion provided by the sanction of broken norm, in the remedial order established for this purpose» 61.

Traditionally allocate five kinds of legal responsibility - civil-law, administrative, disciplinary, material, criminal.

Now in the operating Russian legislation «professional responsibility», nor concept «insurance of professional responsibility» are not defined neither concept. In this connection the insurance purposes predetermine necessity of allocation of the bases and consequences of occurrence of professional responsibility, its definition konstituirujushchih signs.

61 General theory of state and law. The academic course: in 3 t. / otv. red. M.N.Marchenko. - 2 izd., the reslave. And dop. - M: Zertsalo Th, 2002. - T. 3. - With. 469.

62 See: Sotnikov S.L.Strahovanie of professional responsibility: dis.... kand. jurid. Sciences. - Tomsk, 2010. - With. 56.


In normative acts the term «professional responsibility» is fixed only in connection with possibility of its insurance, last traditionally is civil law institute. Insurance is come under by only civil-law retrospective responsibility expressed mainly in the form of the indemnification, collected on the basis, both the judicial certificate, and the agreement between the insurer and страхователем62.

Presence of legislative fastening «insurance of professional responsibility» causes presence of legal grounds and consequences of occurrence of professional responsibility in the Russian civil legislation, being a basic condition of realisation of the insurance with the same name.

As we have specified above, the legislator uses now the term «professional responsibility» only in connection with insurance of professional responsibility. At the same time separate normative acts provide responsibility of the persons who are professionally engaged in certain kinds of activity.

In particular, Fundamentals of legislation about нотариате63 provide professional responsibility of the notary which differs depending on the status of the notary - the state or private notary. Full property responsibility (both for deliberate injury, and on imprudence) for the private notary comes if property damage grows out of wrongful notarial action, wrongful inactivity or disclosure of data on perfect notarial actions. Property damage which is caused as a result of the given actions by the public notary is compensated at the expense of treasury of the Russian Federation (item 1069

GK THE RUSSIAN FEDERATION).

Responsibility of subjects of auditor activity at realisation of the professional functions by them carries both disciplinary character, and civil-law. In particular, regular infringement by the auditor

At carrying out of audit of requirements of the Federal act «About the auditor

63 Fundamentals of legislation of the Russian Federation about a notariate (utv. VS the Russian Federation on February, 11th, 1993 for № 4462-1) (red. 23.06.2014)//Sheets SND and VS the Russian Federation.
- 1993. - №

10. - 6С4т. 357.

64 About auditor activity: the Federal act from December, 30th, 2008 № 307-FZ (04.03.2014)//Meeting of the legislation of the Russian Federation. - 2009. - № 1. -

Item 1565.

65 About the statement of federal rules (standards) of auditor activity: the Governmental order of the Russian Federation from September, 23rd, 2002 № 696 (red. From December, 22nd, 2011)//Meeting of the legislation of the Russian Federation.-2002. - № 39. - Item 3797.


64 65 activity », Rules (standards) of auditor activity and others

Similar offences can entail cancellation of the certificate of the auditor, and even an exception of members of the self-adjustable organisation of auditors.

Civil responsibility directly the law is not named, but whereas in this case there are contractual obligations relations (item 393, 401 GK the Russian Federation), it is established owing to default or inadequate execution of the obligation arising from the contract of rendering of auditor services (for example, infringement of terms of carrying out of auditor check, audit report granting etc.).

Appraisers bear civil responsibility for the caused property damage to the customer at definition of a market project cost (item 24.6 of the Law about estimated деятельности66), also is provided a disciplinary responsibility (item 24.4 of the Law on estimated activity) appraisers, as members of the self-adjustable organisations.

The law on legal profession (item 7 item 2) provides corporate (disciplinary) and civil-law (property) responsibility of the lawyer. The bases of approach of responsibility of the lawyer is default of obligations to the client, default of requirements of the code of a professional etiquette and default of the decision of bodies of lawyer chamber of the subject of the Russian Federation, Federal chamber of lawyers of the Russian Federation, accepted within their competence.

66 About estimated activity in the Russian Federation: the Federal act from July, 29th, 1998 № 135-FZ (red. red. From 12.03.2014года)//Meeting of the legislation of the Russian Federation. - 1998. - № 31. - item 3813.

67 Code of the Russian Federation about administrative violations from December, 30th, 2001 № 195-FZ (red. From June, 8th, 2012)//Meeting of the legislation Russian

Federations. - 2002. - № 1 (ch. 1). - item 1.

68 Criminal code of the Russian Federation from June, 13th, 1996 № 63-FZ//Meeting of the legislation of the Russian Federation. - 1996. - № 25. - item 2954.


The arbitration managing director bears administrative responsibility (item 14.13 KoAP РФ67) for default by arbitration managing director of the duties established by the legislation on an inconsistency (bankruptcy) if such action (inactivity) does not contain penal act, the criminal liability (item 195 UK РФ68). Also the law provides a disciplinary responsibility by way of exception the arbitration managing director from the self-adjustable organisation in connection with infringement by arbitration managing director of conditions of membership in it (Law item 20.4 about банкротстве69). Civil responsibility of the arbitration managing director in the form of the indemnification to the debtor, creditors and other persons comes in case of an establishment the decree of the fact of causing of losses as a result of inadequate execution (default) of the duties assigned to it.

Medical workers according to the Federal act from 21.11.2011

70

N 323-FZ "About bases of health protection of citizens in the Russian Federation" (items 98) bear various statutory kinds of responsibility for injury of a life and (or) to health at medical aid rendering: criminal, civil-law, disciplinary.

Judges bear a disciplinary responsibility for minor offence fulfilment (infringement of norms of the present Law, and also positions of the Code of the judicial ethics approved by the All-Russia congress of judges), except for judges of the Constitutional Court of the Russian Federation (item 12.1 of the Law of the Russian Federation from June, 26th, 1992 № 3132-1 «About the status of judges in

71

69 About an inconsistency (bankruptcy): the Federal act from October, 26th, 2002 № 127-FZ//Meeting of the legislation of the Russian Federation. - 2002. - № 43. -

Item 740190.

70 Federal act from 21.11.2011 N 323-FZ (red. From 28.12.2013, from amendment from 04.06.2014) "About bases of health protection of citizens in the Russian Federation"//Meeting of the legislation of the Russian Federation - 28.11.2011. - N 48. - Item 6724.

71

The law of the Russian Federation from June, 26th, 1992 № 3132-1 «About the status of judges in the Russian Federation» (red. From 25.11.2013)//the Russian newspaper. - 1992. - № 170.


The Russian Federation ». Professional responsibility of the judge comes for infringement of norms as Code of judicial ethics, and Law of the Russian Federation« About the status of judges in the Russian Federation », that does not give possibility to speak about presence in Russia to professional corporation of judges. On the other hand, the fact of achievement by judicial community of this stage of development

Is a surprising phenomenon. After all from all professional

72

Corporations only members judicial are civil servants. Builders and others, connected by professional functions with them persons,

73

According to item 60 of the Town-planning code of the Russian Federation, bear civil responsibility for harm (damage) caused to a life, health and-or property of the third parties as a result of carried out by them professional

74

Activity. Also for infringement of the legislation of the Russian Federation about town-planning, including established the town-planning documentation and corresponding regulations of a legal regime of use of territorial zones, the Town-planning code of the Russian Federation provide administrative, criminal and other responsibility (item 58 GrK

THE RUSSIAN FEDERATION).

It is necessary to notice, that judiciary practice also actively uses

75

The term «professional responsibility».

The carried out analysis allows us to allocate four groups of principal views of activity at which realisation there is a high probability of infringement of bases of the law and order and-or life injury, to health or property of the third parties:

- Medical activity;

- Technical activity (engineers, designers, builders and t.

72 See: Melnichenko the River of About formation of institute of professional responsibility//the Government and local government. - 2009. - № 11. -

WITH. 1773-21.

73 Town-planning code of the Russian Federation from December, 29th, 2004 № 190-FZ (red. From 28.06.2014)//Meeting of the legislation of the Russian Federation. - 2005. -

№1 (ч74. 1). - Item 16.

74 Methodical materials on insurance of building risks (the rivers. Letter Minstroja the Russian Federation from August, 30th, 1996 № ВБ-13-185/7)//the Russian insurance bulletin.-1997. - № 10.

75

See: Decision FAS of Volga region district from April, 11th, 2006 № А65-1307405-С13-28//Union of Right Forces «the Adviser Plus»; Definition of the Supreme Court of the Russian Federation from March, 26th, 2010 № 50-V09-9//Union of Right Forces «the Adviser Plus».


d.);

- Legal activity (lawyers, notaries, lawyers, judges);

- Financial activity (auditors, financial advisers, appraisers etc.).

The carried out research has allowed to allocate also following the basic konstituirujushchie concept signs «professional responsibility».

1. Subjects of responsibility are "professionals".

Trade - the certain labour activity, accompanied by obligatory presence of a complex of theoretical knowledge and skills and abilities of practical character in this or that area, got as a result of special educational preparation and an operational experience. Acknowledgement of presence of the last are presence of corresponding documents (diplomas, certificates etc.).

Proceeding from volume and quality indicators of the above-stated characteristics of a trade judge professionalism of the worker in its trade.

The professional - the person who (unlike the fan) is engaged in any business as the expert owning профессией76, and it is confirmed by appropriate amount (the diploma, the certificate etc.). Professionalism special property of people regularly, effectively and reliably carries out the

77

Activity in the diversified conditions.

Thus, about professional responsibility it is possible to speak only as about responsibility of the physical person who are engaged in directly notarial, legal, estimated or other activity on a professional basis.

However the given point of view in the special literature, though and

78

It is supported by a number of authors, but is not indisputable.

76 See: Ozhegov S. I, Shvedova N. Ju. Russian Explanatory dictionary. - M, 2005. - With.

78. 77

77 See: In the same place. - with. 79.

78

See: antimonov B.S.Osnovanija of contractual responsibility of the socialist organisations. - M, 1962. - With. 29.


In particular, separate researchers state the point of view about possibility of legal bodies also to bear professional responsibility. In particular, N.B.Grishchenko considers, that subjects of professional responsibility are, along with physical persons and

80

Legal bodies (auditors). Nozhkina A.A. carries to subjects of professional responsibility «legal bodies (tour operators,

81

Appraisers, auditors, professional participants of a securities market) »

In our opinion, legal bodies and the persons who independently are not engaged in given kinds of activity, cannot bear professional responsibility as do not possess a trade. Responsibility in this case is regulated by general provisions on responsibility for a corresponding offence. The given sign, in our opinion, is determining. Therefore in a case if auditors and appraisers carry out professional work on the basis of the employment contract as insurers persons with whom the given contract and is concluded should act. FZ «About bases of health protection of citizens in Russia» names subjects of responsibility and the medical organisations and medical workers. Therefore in this case also if the medical worker consists in labour relations insurance is a duty of directly medical organisation. The given legal bodies with whom the professional consists in labour relations have the right to insure both the tort liability, and tort liability of the physical person. The professional can directly insure the contractual responsibility, therefore they are subjects of insurance of professional responsibility (item 932 GK the Russian Federation)

79 See: Civil law: the textbook. CH. 2 / otv. red. V.P.Mozolin. - M: JUrist, 2004. - With. 681; Shinkarenko I. E. Indemnity against liability: the directory. - 2 izd., isp. And dop. - M: Ankil, 2006. - With. 350.

80 See: Grishchenko of professional responsibility in Russia//the Finance. - 2003. - № 12. - with. 48.

81 Nozhkina A.A.insurance of professional responsibility in system of existing kinds of insurance//Actual problems of the Russian right. 2013. N 10. With. 1254 - 1263.


Indirect acknowledgement of possibility of approach of professional responsibility only the physical person is the item 3ст.2 the Federal act from 01.12.2007 N 315-FZ "About the self-adjustable organisations in which subjects of professional work are understood as the physical persons who are carrying out professional work

2. Realisation of activity in the presence of the special permission (licence) or/and after the introduction into professional community (the self-adjustable organisation).

3. Presence public values (value) of such activity and possibility of a legal estimation of its result.

Activity (result of activity) is estimated through its comparisons to is standard certain standards of activity (quality standards), norms of a professional etiquette.

4. Reception of negative result, including in the form of injury (losses), as consequence of inadequate performance by the person who is carrying out professional work of the duties.

As truly marked N.B.Grishchenko, professional responsibility consists in application under the relation to the professional, whose professional work has harmed the third party (to the state, physical or to the legal body) or has entailed other negative

83

Result of measures and sanctions.

5. Application to the person who is carrying out professional work, measures of responsibility statutory mandatory provisions. Responsibility arises only then if forms of adverse property or personal consequences for the offender are is standard established, and in this case and there is a guarding

The legal relation which subjects are: the person who has admitted infringement

84

The rights and the person before whom last should bear responsibility.

82 Federal act from 01.12.2007 N 315-FZ (red. From 07.06.2013) "About the self-adjustable organisations"//Meeting of the legislation of the Russian Federation. - 03.12.2007. - N 49. - Item 6076.

83 See: Grishchenko of professional responsibility in

Russia. - with. 25-26.

84 See: Ioffe O. S. The Liability law. - M, 1975. - C. 96.


Allocation of signs of professional responsibility allows to come to conclusion, that the category «professional responsibility» is uniform for various kinds of responsibility. The drawn conclusion allows to agree with S.L.Sotnikovym who approves, that professional responsibility can come in the form of criminal, administrative, civil, disciplinary ответственности85.

In specification of the specified position judiciary practice has developed the approach according to which professional responsibility gravitates to a disciplinary responsibility. So, in definition of the Supreme Court of the Russian Federation from March, 26th, 2010 № 50-V09-9 it is specified, that established in the Professional code of notaries of the Russian Federation professional responsibility of members of the given community is in essence a measure disciplinary воздействия86.

But, not all authors support the given point of view. So, R.G.Melnichenko considers, that the institute of professional responsibility grows out of synthesis of several kinds of legal responsibility: disciplinary, administrative, criminal and civil-law. The author allocates it in an independent kind and defines as «.... The legal relations between bodies of the professional control and the infringer to whom the duty is assigned to undergo adverse consequences for itself for infringement of requirements of the corporate norms which basis is

87

Professional offence ».

85 See: Sotnikov S.L.Strahovanie of professional responsibility: dis.... kand. jurid. Sciences. - Krasnoyarsk, 2010. - With. 67.

86//Union of Right Forces "ConsultantPlus".

87 Melnichenko R.G.Professionalnaja responsibility of the lawyer: the monography. -

Volgograd, 2010. - With. 37.


We believe, that the given conclusion is not quite correct. The matter is that the responsibility basis in this case is the offence falling under signs or a criminal offence, or civil, administrative violation, or a minor offence. Independent signs of the basis of a professional offence does not exist. If to consider impeachment conditions here again we do not reveal specificity. The unique criterion distinguishing the given kind of responsibility from other kinds, professional work realisation is. Therefore it is necessary to establish, that professional responsibility receives the expression in the form of criminal, administrative, civil, a disciplinary responsibility.

We consider, that allocation of professional responsibility is caused by that it arises at inadequate realisation by the person «activity only within the limits of the declared specialisation and the competence, assuming

88

Certain degree of qualification and vocational training ». The given sign does not allow to allocate professional responsibility in a separate kind of responsibility along with civil, criminal, disciplinary, etc.

At the same time the term use «professional responsibility» in a broad sense is supposed possible: as negative reaction of the state to the malfeasance made within the limits of performance by the physical person of the professional duties.

Recently in the legal literature the prevailing point of view is consideration of professional responsibility as civil responsibility versions. In particular, S.V.Dedikovym is allocated, on the basis of the fact of application of responsibility to professional persons for made by it of the action (inactivity), a separate kind of responsibility - professional in which certain features within the limits of operating civil права89 are inherent.

Traditionally there are also opposite points of view. At N.N.Kosarenko90's sight, in civil law it is not obviously necessary to allocate complex formation - professional with responsibility

88 See: Sotnikov S.L.Strahovanie of professional responsibility: dis.... kand. jurid. Sciences. - Krasnoyarsk, 2010. - With. 67.

89 See: Dedikov S.V. the Basic problems of indemnity against liability under the contract//the Jurist. - 2010. - № 1. - with. 89.

90 See: Kosarenko N. N. Legal maintenance of public interests in sphere straho - vanija: the monography. - M: Volters Kluver, 2010. - With. 78.


The carried out analysis of the legislation convincingly shows, that at the heart of professional work realisation realisation by professionals of activity in the form of rendering of services or performance of works lays. The given kinds of activity exist in a legal field in a kind grazhdanskoyopravovyh the obligations which infringement attracts sanctions provided by norms of civil law.

Civil responsibility in these cases are negative (adverse) consequences for the perfect offence, expressed in deprivation of the offender of the property blessings in favour of the victim owing to realisation professional деятельности91. Responsibility comes before victims and has, first of all, «the functional integrated approach expressed, first of all, in performance

It compensating both preventive function and regenerative character

92

pravoprimenitelnyh sanctions ».

Traditionally civil responsibility is differentiated on its "genetic" bases on contractual and delictual. The basis of contractual responsibility is default or inadequate

Execution of the contractual obligation, the basis of the delictual

93

Responsibility injury is directly.

91 See: Smirnov V. T, Sobchak A.A.Obshchee the doctrine about tort liabilities in the Soviet civil law. - L, 1983. - With. 49.

92

See: Grishchenko, N.B.methodological and organizational bases of indemnity against liability at realisation professionaldnoj activity: dis.... kand. jurid. Sciences. - SPb., 2007. - with. 67.

93

See: Fogelson J.B.Teoreticheskie of a basis of the contractual insurance right: dis.... Drs. jurid. Sciences. - M, 1998. - With. 134.

94 See: Smirnov V. T, Sobchak A.A.Obshchee the doctrine about tort liabilities in the Soviet civil law. - with. 99.

95 Nozhkina A.A.insurance of professional responsibility in system of existing kinds of insurance//Actual problems of the Russian right. 2013. N 10. With. 1254 - 1263.


According to existing dogma, the question practical side consists in to admitting cases of compensation of non-contractual harm by rules of contractual responsibility, and on the contrary as it can lead to infringement of the rights потерпевшего94. «At infringement of the absolute powers, in whatever relations the parties consisted, property responsibility always has non-contractual character. Accordingly, infringement of the rights in personam involves occurrence of a liability of infringement of the contract» 95.

According to N.N.Kosarenko, essence of division of a civil liability on the contractual and delictual it is caused

Features romano-German (or continental) legal systems,

96

Based on a primacy of the normative act.

In the legal literature there is no uniform position concerning reference of "professional responsibility» to one of civil responsibility kinds.

9798

In particular, A.Kozlov and E.Popov, P.V.Sokol, notice, that professional responsibility has non-contractual character, follows from torts - from injury, is connected with a duty, persons engaged in professional work, to indemnify a loss put to the third parties, in connection with realisation to them professional деятельности99.

Akisheva, S.J.Kapranova, A.A.Mohov pay attention in particular that professional responsibility arises owing to injury to the rights and the protected law to interests of certain persons (item 931 GK the Russian Federation) 100, but not from the contract.

Ampere-second. samohvalov it is convinced of the return: a basis for occurrence of professional responsibility is infringement contractual обязательств101.

96 See: Kosarenko N. N. Legal maintenance of public interests in insurance sphere: the monography. - M: Volters Kluver, 2010. - With. 78.

97 See: Goats A, E.Strahovanie's Priests of professional responsibility of the lawyer//the Russian justice. - 2002. - № 5. - with. 23.

98 See: Falcon P.V.Kommentary to the law of the Russian Federation «About the organisation of insurance business in the Russian Federation» (article by article). - M: JUstitsinform, 2006.

99 See: Martyanov: the textbook. T. 4. - 3 izd. - M: Volters Kluver, 2006. - With. 377.

100 See: Mohov A. A, Kapranova S. Ju, Akisheva Insurance of professional responsibility and indemnification of moral harm//the Lawyer. - 2006. - № 6. - with. 12.

101 See: samohvalov Ampere-second. Insurance of professional responsibility: dis.... kand. ekon. Sciences. - M, 2004. - With. 56.


According to D.A.Shevchyuk, a basis for occurrence of legal responsibility is contractual delinquency as the person who is carrying out professional work, and the person operating from his name. More often relations of the parties in legal relation «the businessman - the client» are under construction on the basis of the contract of rendering of services.

It generates occurrence of treaty obligations of the parties which infringement involves occurrence of already new duty of the debtor to pay to the creditor the damages caused by default or inadequate execution of obligations. As this risk of responsibility of the person who are carrying out professional work it has contractual основу102 is insured.

J.N.Andreev specifies that the term «the professional

Responsibility »includes both non-contractual, and contractual

103

Responsibility.

Let's address to the positions established in the legislation.

Initially, insurance of professional responsibility was defined by the legislator perechnevym a method, by instructions on concrete kinds of objects of insurance as which understood valuable interests of the physical person connected with its duty to indemnify a loss caused to the third parties, in connection with realisation insured to professional work (medical, notarial and other professional).104

About a notariate (item 18) is established by fundamentals of legislation of the Russian Federation a duty of notaries to insure responsibility if it is damnified interests of property character of the third parties. Thus requirements can be declared, as clients of the notary who are connected with the last contractual relations, and the third parties which have no contract with the notary. Hence, non-contractual responsibility can be insured both contractual, and.

102 See: Shevchyuk D.A.Strahovye disputes: the practical grant. - M: GrossMedia; ROSBUH, 2008. - С.78.

103 See: Andreev J. N. Property insurance: the theory and judiciary practice. - M,

1200408. - WITH. 341.

104 Appendix 2 «Classification by kinds of insurance activity» to Conditions of licensing of insurance activity in territory of the Russian Federation, approved Order FSSN of Russia from May, 19th 1994 № 02-02/08,


FZ «About lawyer activity and legal profession in the Russian Federation», provides, that «the lawyer carries out according to the federal act insurance of risk of the professional property liability of infringement of conditions of the agreement entered into with the principal about legal aid rendering» 105. As it was specified, earlier responsibility of the lawyer can be contractual and delictual (if it comes before lawyer formation, the third parties etc.). The maintenance of above-stated article specifies only in insurance of contractual responsibility. However in the literature there is a point of view according to which if realisation of professional duties (by its definition means

Competence, qualifying characteristics (931 GK the Russian Federation), the given kind

106

Insurance concerns insurance of non-contractual responsibility.

According to item 6 of item 20 of the Law on an inconsistency (bankruptcy) a condition of the statement of the arbitration managing director as the time, administrative, external, competitive managing director is presence of the contract of the indemnity against liability which insured accident is causing of losses to the persons participating in business about bankruptcy.

According to T. P.Shishmareva absence of the contractual relation between the arbitration managing director with the debtor or other third party, allows

To carry the contract of indemnity against liability of the arbitration managing director to

107

To contracts of insurance of tort liability.

However at the same time the arbitration managing director can enter as a result of the professional work contractual relations with certain persons (appraisers, auditors etc.), and in this case there can come contractual responsibility.

105 Items 19 of the Federal act «About lawyer activity and legal profession in the Russian Federation» № 63-FZ from May, 31st, 2002. See: Meeting of the legislation of the Russian Federation. - 2002. - № 23. - item 2102.

106 See: Civil law: the textbook: in 2 t. T. 2. Semivolume 2 / otv. red. E.A.Suhanov. - M, 2005. - With. 191-194.

107 See: Shishmareva T.P. Indemnity against liability of the arbitration managing director//the Jurist. - 2010. - № 2. - with. 65-70.


FZ «About estimated activity in the Russian Federation» obliges the appraiser to conclude the contract of insurance of the professional responsibility, which insured accident also is injury to clients of the appraiser at estimation carrying out by a concrete kind of estimated activity (depending on object of an estimation) or under the concrete contract on an estimation of object of an estimation (item 17). As it is represented, given article cannot be unequivocally interpreted. But the prevailing point of view in the literature

Is that by the nature the indemnity against liability contract

108

The appraiser concerns indemnity against liability under the contract.

It is necessary in this connection to specify, that the choice the legislator of such kind of insurance is not absolutely successful, whereas the appraiser according to FZ «About estimated activity in the Russian Federation» (item 15.1) can work under the employment contract. And in this case property responsibility before the customer of an estimation comes for the employer (item 1068 GK the Russian Federation) which without fail should not conclude the contract of insurance of its civil liability. The insurer and there is an appraiser, but it is not the participant of contractual relations. At the same time the appraiser bears responsibility and before the third parties (with which is not in contractual communications) in case of causing of property damage by it in connection with performance of the professional duties.

108

See: Gusev. V, Larionov V. A, Hlistun J.V. the Comment to the Federal act from July, 29th, 1998 № 135-FZ «About estimated activity in the Russian Federation» (article by article) / otv. red. S.N.Bratanovsky//Union of Right Forces "ConsultantPlus", 2009. 109 Federal act from 29.11.2010 N 326-FZ (red. From 12.03.2014) "About obligatory medical insurance in the Russian Federation"//Meeting of the legislation of the Russian Federation.-06.12.2010. - N 49. - Item 6422.


According to item 10 ч.1 item 79 of the Law on health protection the medical organisation should carry out insurance on a case of injury of a life and (or) to health of the patient at medical aid rendering. Unlike earlier operating Fundamentals of legislation of the Russian Federation insurance of a professional error though in the project its developed definition has been given directly is not mentioned health protection of citizens (item 63 item 7) in the new act. From the maintenance of item 10 of item 79 of item 7 of item 63, item 98 of the Law on health protection and item 31 the Federal act about obligatory medical insurance in Russian Федерации109 not probably to draw an unequivocal conclusion what kind of insurance the legislator has in view of: insurance of professional responsibility of the medical worker or insurance of a civil liability of the medical organisation. It is represented, that use of two kinds of insurance in their reasonable combination is possible.

Also in the literature there is no unity of a sight at the nature of the given insurance. As well as concerning other kinds of insurance of the professional responsibility, one scientists support the point of view of tort liability of the executor medical услуг110, others specify on contractual character, proceeding from that that harm is a consequence of inadequate execution contractual обязательств111. In our opinion, if the contract was the basis of occurrence of relations between the executor of medical services and the patient, and its inadequate execution has entailed injury to a life (health) there comes contractual responsibility. In this case injury does not generate the new obligation, and the executor has a new duty - to compensate damnified.

According to item 55.5, 60 GrK the Russian Federation is insured a civil liability, on a case of injury owing to lacks of a various kind of the civil work influencing safety of objects of capital construction. Traditionally in the literature there is no unequivocal opinion concerning a kind of insured responsibility (contractual or non-contractual). In our opinion, criteria "safety" and "harm" in bolshej degrees testify to tort liability.

The carried out research shows, that the basis of occurrence of professional responsibility is nenadlezhashee performance (default) of the duties within the limits of the contract of performance of works (rendering of services), caused is standard defined

110 Given points of view adhere to N.I.Sergeeva, A.N.Savitskaja, L.A.Majdannik, K.B.Jaroshenko.

111 Suhoversky V.A.Nekotorye features and a branch accessory of legal relations on a donor service and transplantation. - Sverdlovsk, 1975. - With. 105.


Requirements on qualification. Therefore in most cases professional responsibility should concern contractual responsibility, but in some cases, the professional functions caused by various character, it can be considered as tort liability.

Hence, being a version civil responsibility, professional responsibility in "narrow" sense is complex formation, and can be both contractual, and non-contractual (a sign poliformost). For the sake of justice it is necessary to notice, that the given versions of responsibility are close enough, in a kind of that at the heart of both harm - «adverse event, negatively lays

112

Affecting a property status of the victim ». In this connection A.D.Zhiltsova's point of view is convincing, that insurance of tort liability with« success replaces with success replaces indemnity against liability for breach of contract »113.

Thus civil responsibility of the persons who are engaged in professional work, general terms of approach of a civil liability, and special, containing in the special legislation are inherent also.

As it was specified above, a determining sign of professional responsibility is the status of the offender is the person who is independently engaged in professional work. For approach of civil responsibility of the professional observance of four conditions is necessary: presence of harm (damage); illegality of act; a causal relationship between the come act and harm; fault. All given conditions should be present and at approach of professional responsibility.

Professional responsibility is characterised by personal character that does not exclude plurality of persons on the party of the respondent.

112

Nozhkina A.A.insurance of professional responsibility in system of existing kinds of insurance//Actual problems of the Russian right. 2013. N 10. With. 1254 - 1263.


ZHiltsova A.D.indemnit for breach of contract//Auditor sheets. 2010.

N 4.


As well as any civil liability, professional responsibility comes as a result of fulfilment of tort which is characterised by presence of certain conditions. Among them special value gets a condition about presence (absence) of fault and about its character.

L.B.Sitdikova specifies in guilty character of infringement of the contractual obligation which is caused by incompetence, rashness специалиста114.

S.I.Kurpjakova and T.A.Popova consider, that the behaviour of the professional in a considered case should be inappropriate to due degree of discretion and the professional ability, established requirements to the competence, i.e. to be небрежным115. According to the approach offered by given authors "negligence" is an imprudence version (as versions of the form of fault).

The given authors stand on a position of guilty responsibility of the professional, but narrow sphere of its approach only the negligence form. If the professional operated deliberately, its responsibility will not have any more character of the professional. It is represented, as in this case responsibility will be professional.

As a rule, proceeding from the maintenance of item 3 of item 401 GK the Russian Federation, in case of approach of contractual responsibility professionals (especially the persons possessing the status of the individual businessman, for example, the notary, the appraiser, the auditor, etc.) bear the raised responsibility

It is necessary to notice, that, under the general rule, tort liability is characterised by guilty character, the burden of absence of fault by a principle of "the general tort» is assigned to the offender.

114 See: Sitdikova L.B.Normativno-pravovoe and contractual regulation of relations on vozmezdnoe rendering of consulting services: the monography. - M: the Lawyer, 2007. - With. 60.

115 See: Kurpjakova S.I., popova T.A.some questions of indemnity against liability of auditors at realisation of obligatory audit the Lawyer - 2005. - №12. - With. 79-80.

116 About protection of the rights of consumers: the Law of the Russian Federation from February, 7th, 1992 № 2300-1//Meeting of the legislation of the Russian Federation. - 1996. - № 3. - item 140.


If work (service) is carried out within the limits of consumer relations the executor under the general rule, bears the raised liability for nonperformance or inadequate execution of the duties (item 13116), including at injury. During too time, the legislation can be established and other rules (item 39 of the Law on protection of the rights of consumers). In earlier operating Fundamentals of legislation about public health services in the Russian Federation

117

(Item 66, 68) it was provided, that the medical worker, whose actions have entailed death or health damage compensated harm in the presence of guilty behaviour. During too time the given positions were included into the contradiction from item 1095 GK the Russian Federation where it is established bezvinovnaja responsibility of the executor and irrespective of presence of contractual relations of the executor with the consumer.

Now item 98 of the Law on health protection directly is not spoken about guilty (innocent) responsibility of the medical organisation, the medical worker in this connection general rules about the tort liability caused to a life and health of the citizen are applied, including about consumer and professional participation.

Professional level differs from ordinary that besides special character of knowledge the person concerning a certain trade, is obliged to have a certain minimum which 10 times more, than is established for the inhabitant. It is defined by those requirements which the society shows to the professional and causes, accordingly, in our opinion, the raised responsibility of the professional for harm or losses which it has caused to the third parties irrespective of, whether they are caused within the limits of performance contractual or tort liabilities.

Thus the instructions on approach of responsibility of the professional only in the presence of fault are represented wrongful.

117 Fundamentals of legislation of the Russian Federation about health protection of citizens (utv. VS the Russian Federation on July, 22nd, 1993 № 5487-1)

Nevertheless, judiciary practice is not always consecutive in the given question. In particular, istitsa has addressed in court with the claim about compensation of a damage caused as a result of poor rendered medical service and asked to recognise as the void item of the contract according to which the executor is relieved from responsibility in case of a failure of treatment of the patient if there is no its fault, and, accordingly, money resources to the customer do not come back. The court, having given up to satisfaction of claims, has referred to item 39 of the Law on protection of the rights of consumers and item 723, 779, 783 GK РФ118.

In our opinion, court it is absolutely groundless the legislator the mandatory provision has applied the given norms as it was specified above, has established the raised responsibility of the executor.

It is necessary to add, that the volume of responsibility of the professional depends and on fault (intention, gross negligence) the most sustained person.

The variety of the bases of professional responsibility is shown and in ways of protection of the civil rights. So the victim can demand from the professional of compensation of a real damage and the loss of profit, moral harm etc.

Thus, the carried out research specifies in allocation possibility to "professional responsibility» as civil responsibility versions. Allocation of professional responsibility is caused by that it arises at inadequate realisation by the person of activity only within the limits of the declared specialisation and the competence, assuming certain degree of qualification and vocational training. Thus professional responsibility can come in the form of civil, criminal, administrative, disciplinary.

In connection with stated it is obviously possible to use the term «professional responsibility» in narrow sense - as civil obligation of physical persons, whose professional work is connected with possibility of injury of a life and to health, property to citizens or with causing of losses legal and to physical persons to compensate damnified (losses) in full taking into account the features provided by the special legislation.

118 Business 2-47/2002 considered by the Soviet court of of Volgograd//Archive of the Soviet court of of Volgograd.

At the same time it is supposed possible to use the term «professional responsibility» in a broad sense - as negative reaction of the state to the malfeasance made within the limits of performance by the physical person of the professional duties.

In turn, professional responsibility as a version civil-law responsibility possesses a number of signs: poliformnost (it can be both contractual, and non-contractual); strictly personal character (therefore as the subject of responsibility the physical person who can be involved in it for default or inadequate performance of the professional duties can act only); presence of the limited structure of tort.

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A source: Lugovets Valentina Jakovlevna. Legal framework for professional liability insurance in the Russian Federation. DISSERTATION on competition of a scientific degree of the candidate of legal sciences. Volgograd, 2015. 2015

More on topic 1.2. Professional responsibility as a civil responsibility version, its concept, signs and kinds:

  1. § 2. Concept and kinds of civil responsibility of members of controls of economic societies
  2. 3.1. The contract of insurance of professional responsibility: concept and the legal nature
  3. §3. Features of separate kinds of insurance of contractual responsibility of subjects of professional work
  4. 2.1. Insurance of professional responsibility: concept, specificity and the occurrence bases
  5. §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
  6. similarities and differences of administrative responsibility for infringements in sphere of taxes and tax collections in the Russian Federation from other kinds of legal responsibility
  7. the Chapter II. Insurance of professional responsibility: concept and forms
  8. § 1. Responsibility as a filosofsko-legal category. Concept and kinds
  9. § 2. A parity of insurance of a civil liability for injury to the third parties in the course of realisation by the insurer (insured person) of administrative activity with institute of insurance of professional responsibility
  10. § 1. Concept and essence of insurance of civil responsibility
  11. CHAPTER 1. CONCEPT AND KINDS OF "GETTING RESPONSIBILITY»
  12. the International legal analysis of the concept of "divided responsibility» (shared responsibility) in a context of a liability of infringement of the obligations following from norms jus cogens
  13. Chapter 3. Diminished responsibility. Concept,criteria, signs, forms of diseases.
  14. CHAPTER 1. RELAPSE OF CRIMES: CONCEPT, KINDS, THE RESPONSIBILITY BASES
  15. Concept and essence of civil responsibility for the harm caused owing to lacks of the goods (works, services).
  16. Chapter 2. FEATURES of is standard-LEGAL REGULATION of COMPULSORY INSURANCE of SEPARATE KINDS of CIVIL RESPONSIBILITY