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1.2. Protection of the civil rights and interests on insurance means

Insurance of professional responsibility is the major component of social and economic development of a society, as a whole, and insurance systems, in particular. Insurance gives guarantees of restoration of the broken property rights and interests, that positive impact on strengthening of economy of the state finally makes.

The insurance essence consists in that, «that physically destroyed property (or the broken interest - a comment of the author) to transform in economically not destroyed...» 17.

Main objective of insurance of professional responsibility is protection of valuable interests of subjects. Thus specificity of the given kind of insurance consists that protection provides as the right of the subject who is carrying out professional work that allows to limit it from unforeseen losses, and the subject who is getting a job, service, from the property losses connected with professional errors.

The principal value of insurance the state sees in protection of valuable interests. «Insurance as system of protection of valuable interests of citizens, the organisations and the state is a necessary element of social and economic system of a society» 18.

17

Antonovich A.J.Kurs of political economy. - Kiev, 1886. - With. 652 - 653. TSit. On: Lyons S.E.Dogovor of insurance by Russian right. - M, 1892. - With. 7.

18 Governmental order of the Russian Federation from October, 1st, 1998 «the Basic directions of development of national system of insurance in the Russian Federation in 1998 - 2000»//Meeting of the legislation of the Russian Federation. - 1998. - N 40. - item 4968.

19 Law of the Russian Federation from November, 27th 1992 N 4015-1 «About the organisation of insurance business in the Russian Federation»//Sheets of Congress of People's Deputies of the Russian Federation and the Supreme body of the Russian Federation from January, 14th 1993. - N

2. - item 56.


According to item 2 of the Law of the Russian Federation from November, 27th 1992 N 4015-1 «About the organisation of insurance business in the Russian Federation» 19 under insurance are understood - relations on protection of interests physical and legal bodies, the Russian Federation, subjects of the Russian Federation and municipal unions at approach of certain insured accidents at the expense of the monetary funds formed by insurers.

The similar purpose of insurance was put earlier by authors of the Law of the Russian Federation from June, 28th 1991 N 1499-1 (red. From 24.07.2009) «About medical insurance of citizens in the Russian Federation». In particular, in item 1 of the given law it is specified, that medical insurance is the form of social protection of interests of the population in protection здоровья20.

In realisation of insurance protection of valuable interests of the agricultural commodity producers connected with manufacture of agricultural production specifies also item 1 of the Federal act from July, 25th 2011 N 260-FZ (from amendment from 07.12.2011) «About the state support in sphere of agricultural insurance and about modification in

21

The federal act "About agriculture development" ».

Thus, it is possible to establish, that the legislator a basis the insurance purpose sees protection of interests of subjects of the civil circulation.

In a consequence of it, for us it is important to establish parities of institutes of protection of the right and insurance, and also to define the protection mechanism at professional work realisation.

Thus it is necessary to notice, that in the legal literature it is possible to allocate two points of view for an insurance main objective.

The majority of authors support the legal point of view, specifying, that

22

20 Law of the Russian Federation from June, 28th 1991 N 1499-1 (red. From 24.07.2009) «About medical insurance of citizens in the Russian Federation»//Sheets SND and VS RSFSR from July, 04th 1991. - N 27.

- Item 920. (Has become invalid)

21

The federal act from July, 25th 2011 N 260-FZ «About the state support in sphere of agricultural insurance and about modification of the Federal act" About agriculture development "»//Meeting of the legislation of the Russian Federation from August, 01st 2011. - N 31.

- Item 4700.

22

See: Braginsky M. I, Vitrjansky V.V. The Conventional law. The book the third: Dogovory about performance of works and rendering of services. - M: the Statute, 2002. - With. 656; Thaler K.V. Compulsory insurance suffered from actions of terrorist character as a civil-law way of protection of their rights//Safety of business. - 2008.-N 4. - With. 34; Civil law: the Textbook. T. 2. Izd. 2, the reslave. And dop. / under the editorship of And. P.Sergeeva, thick. - M: the Prospectus, 1999. - With. 494; Isho K.Vozmeshchenie of harm under the contract of insurance of a civil liability//the Corporate lawyer. - 2006. N 7. - with. 78.


At the heart of insurance lays - protection of interests of weakness.

However in the literature there is also other point of view. In particular, O.A.Chausskaja believes, that the insurance purpose consists in distribution of the losses suffered by one subject, between set of persons at the expense of entering of money resources by them in the insurance fund of the specialised organisations,

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Engaged in insurance activity. According to I.J.Tsekovoj, an insurance main objective is compensation suddenly arising property

Losses by their distribution between as more as possible wide range

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Subjects.

V.I.Serebrovsky specified, that «... Property insurance puts the main objective compensation of the harm suffered from the provided

25

Event insurance ». In turn F. O.Fogelson considers, that insurance is a form of protection from вреда26.

The designated position, in our opinion, has both positive, and the negative moments. On the one hand, a duty of the insurer to pay damages at property insurance really is one of ways of protection of the civil rights provided by item 12 Civil

27

The code of the Russian Federation (further GK the Russian Federation). On the other hand, as it has truly been noted in the literature, insurance «provides the victim not from harm approach, and

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From insolvency harmed ». Thus, possibility of approach of harm or its approach cannot characterise interest in insurance in any way. Harm possibility is truly noticed in the literature, that«

29

23 See: Chaussky: the Textbook for students of educational institutions of average vocational training. - M: Dashkov and To, 2007. - With. 45.

24 See: Tsekova I. Ju. To a question on legal nature of the contract of insurance//the Right and a policy. - 2007. - N 4. - with. 34.

25 Serebrovsky Century And. The selected works by the hereditary and insurance right. Izd. 2, ispr. - M: the Statute, 2003. - With. 444.

26 See: Fogelson J.B.Kommentary to the insurance legislation. - M: JUrist, 2002. - With. 56.

27 Civil code of the Russian Federation (a part the first) from November, 30th 1994 N 51-FZ (red. From 30.11.2011)//Meeting of the legislation of the Russian Federation from December, 05th 1994. - N 32. - Item 3301; Meeting of the legislation of the Russian Federation from December, 05th 2011.-N 32. - Item 3309.

28 Civil law. Volume 1 / under the editorship of M.M.Agarkov, D. M.Genkin. - M: Legal publishing house NKJU of the USSR, 1944. - With. 318, 319

29 Civil law: the Textbook. T. 2. Izd. 2, the reslave. And dop. / under the editorship of And. P.Sergeeva,

J.K.Tolstoy. - with. 494.


- This property of the insured risk, instead of interest ».

Moreover, causes difficulties a parity of a category of losses of the insurer with indemnity against liability. First, responsibility as is difficult for carrying object of insurance to a category of valuable interests. Secondly, the duty on harm compensation to losses does not concern, it is civil obligation.

In due time specificity of indemnity against liability was marked by V.I.Serebrovsky, specifying, that at civil liability insurance, usually the insurer does not have interest in any defined имуществе30. Thereof there is a question: what comes under to insurance in case of indemnity against liability? According to the author, to insurance comes under «... Interest in possession this property... Thus, in this case the insurable interest consists that the losses suffered by the insurer as a civil liability before the third parties, can reduce the general value of property of the insurer...» 31.

The resulted arguments allow to approve, that the indemnity against liability purpose including, protection of valuable interests, instead of the indemnification or the caused harm is professional. Thus, creating a design of insurance of professional responsibility, the legislator pursued the aim first of all to provide protection of valuable interests not the insured person, and the person who has addressed for reception of professional service, but for whatever reasons has not received it, or rendering of poor-quality service takes place.

In turn, presence of losses or harm pulls together concepts of protection of the right and insurance. However for an establishment of legal communication of protection and insurance it is necessary to address to concept the rights are sewn up.

30 See: Serebrovsky Century And. The selected works by the hereditary and insurance right.

Izd. 2, ispr. - M: the Statute, 2003. - With. 492. 31 In the same place - With. 492.

In the legal literature there are some positions concerning understanding of the right of defence.

The compulsory way of realisation of the broken right with a view of it восстановления32 understands B.J.Tikhonov as protection. The similar position is stated And. V.Vershininom who, defines protection of the rights «legal activity on removal of obstacles on a way of realisation by subjects of the rights and to offence suppression, restoration

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The position existing to an offence ». From the presented points of view it is possible to draw a conclusion, that authors, first, connect protection with an offence, and, secondly, with restoration of the broken right.

At such approach we cannot say that insurance has for an object protection of the civil rights. However right protection not always is connected with an offence in which basis unlawful conduct lays. For example, right protection is carried out and when at the heart of injury the lawful behaviour (item 3 of item 1064 GK the Russian Federation) lays. For example, in conformity with

ch. 2 items 18 of the Federal act from March, 06th 2006 N 35-FZ (red. From 08.11.2011) «About

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Counteraction to terrorism »the harm caused by lawful acts at suppression of act of terrorism comes under to compensation.

Thus, the given point of view is not quite correct. However in the offered definitions there are also positive moments. Authors, it is absolutely proved specify in such function of protection of the right as restoration of the broken position. This function consolidates protection of the right and insurance of professional responsibility.

32 See: Tikhonov of the Soviet citizens, their protection and protection: avtoref. dis... kand. jurid. Sciences. - M, 1972. - With. 11 - 13.

33 Vershinin A.V. Ways of protection of the civil rights in court. - SPb.: Publishing house Sankt - Petersburg un y, 1997. - With. 17.

34 Federal act from March, 06th 2006 N 35-FZ (red. From 08.11.2011) «About counteraction to terrorism»//Meeting of the legislation of the Russian Federation from March, 13th 2006. - N 11. -

Item 1146.


Representatives of other direction define concept of protection more widely. In particular, N. V.Ostapjuk writes, it is necessary to understand application of statutory measures of a legal and actual order by competent bodies or the authorised person as protection of the civil rights for realisation of the civil rights at their infringement, contest or negation in other form. To a similar position adheres And. By V.Zykova defining protection as «set of measures of the material, remedial and administrative character which is carried out by competent body either authorised or a party liable with a view of realisation of rights and legitimate interests in a case when they are challenged, are broken or

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There is a threat of their infringement ».

Important point of the presented position is that authors widely treat possible ways of infringement of the civil rights, ranking to them: infringement, infringement threat, contest, negation in other form.

There is in a science also a direction which representatives identify protection of the civil rights and realisation of sanctions. So, A.I.Bazilevich defines protection of the civil rights as realisation of legal sanctions of civil-law norms by competent body either directly authorised or a party liable in legal relation with a view of realisation of rights and legitimate interests in a case, when

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The last are challenged by someone or broken.

However in this case following theory of law it is necessary to notice, that the sanction is a result of protection of the civil rights. Sanction application in civil law, leads to restoration of the broken right (though retaliatory functions here as it is not excluded).

Apparently all resulted authors speak about protection of the rights, but not interests. Whereas the legislative sources resulted above on insurance speak about protection of interests by insurance.

35 See: Ostapjuk N.V. Concept and forms of protection of the civil rights. Features of notarial protection of the civil rights//the Lawyer. - 2006. - N 4. - with. 67.

36 Zykova I.V. About the legal nature of protection of the civil rights//Arbitration and civil procedure. - 2010. - N 1. - with. 4.

37 See: Bazilevich A.I.Formy of protection of the subjective civil rights: Dis. On soisk. uchen. step. kand. jurid. Sciences. - Ulyanovsk, 2001. - With. 44.


Moreover, in the scientific literature it is underlined, that object of protection of the civil rights is the right fixed by the legislation and other legal acts for the participant civil оборота38.

The current legislation analysis also shows, that the concept of protection is used in it concerning infringement or contest of the civil rights (item 11 of item 12 GK the Russian Federation, etc.).

However it is possible to allocate and a number normz in which is spoken about protection of interests. So, the Russian Federation speaks item 13 GK about annulment of the certificate of the state body or the local government breaking the rights and interests protected by the law; in item 31 GK the Russian Federation is underlined that guardianship is established for protection of the rights and interests incapacitated or not completely capable citizens; in item 121 GK the Russian Federation is spoken about representation and protection of the general valuable interests commercial to the organisation, etc.

In the legal literature some researchers also specify in necessity of protection not only the civil rights, but also interests. In particular I.B.Zhivihina considers property right protection as lawful activity of the authorised persons and competent bodies on realisation of rights and interests protected by the law in cases when the last are challenged by someone or нарушаются39.

Thus, we believe, that protection has object as rights, and legitimate interests. Communications with it, the insurance having for an object protection of valuable interests, can be considered as one of ways of protection of the civil rights. Such approach does not contradict the current legislation as item 12 GK the Russian Federation listing ways of protection, supposes its extensive interpretation (paragraph 12 of item 12 GK the Russian Federation).

38 Zykova And. About the legal nature of protection of the civil rights//Arbitration and civil procedure. - 2009. - N 12. - with. 2.

39 See: ZHivihina I.B.Formy of property right protection//Civil law. - 2010. - N 1. - with. 26. See: as Tarhov V. A, Fishermen V.A.Sobstvennost and the property right. 3 izd., dop. - M: the Lawyer, 2007. - With. 56.


Thus in insurance it is protected valuable interests at both parties of relations on insurance of professional responsibility. The insurer - the subject of professional responsibility operates in the interests as in case of approach of a civil liability it should not bear financial burden, it is assigned to the insurer. Hence, insurance protects its valuable interests. The person receiving professional service as has the valuable interest, as in a case not performance by the subject of professional responsibility of the obligations, or granting of service of inappropriate quality, it receives property indemnification under the insurance contract. Thus, its valuable interests are protected also. Thus is also the third party which also has the valuable interest is an insurer who profits from the given transaction. Thus, the given kind of insurance simultaneously provides interests, both the parties of the insurance obligation, and the third parties.

Proceeding from it, we believe, that not quite truly traditional interpretation of insurance, as weakness protection. Insurance protects interests of all parties of insurance legal relation.

In a context of carried out research, also it is important to us to find out: whether insurance by way, the basis, means or a kind of protection of the civil rights is.

E.A.Sukhanov defines a way of protection of civil law as «a concrete law-enforcement measure by means of which breach of law» 40 is eliminated. Wider definition A.A.Pavlov, defining ways of protection as offers financially-legal measures fixed by the legislation by means of which suppression is made and

The prevention of infringements of rights and protected by the law

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Interests, and also restoration of the rights in case of their infringement.

40 Civil law. The textbook in 2. T. 1 / otv. red. E.A.Sukhanov. - M: BEK, 1998. - With.

410. 41

41 Pauls A.A.Prisuzhdenie to discharge of duty in nature as a way of protection of the civil rights in debt relationships: Dis.... kand. jurid. Sciences. - SPb., 2001. - with. 19 - 20.


V.V. Vitrjansky believes, that ways of protection of civil law are means with which help can be reached: suppression, prevention, elimination of breach of law, its restoration and (or) indemnification of the losses caused by infringement права42. Thus, the author accurately specifies in all list of the function, carried out in the way of protection of the civil rights.

Applications of a certain way of protection of civil law depends not only on that right which comes under to protection, but also against character of infringement. Circumstances with which the law or the contract connects

Possibility of application of this or that measure of protection, are called in the scientific

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To the literature the protection bases.

In opinion, E.E.Bogdanovoj under the protection basis it is necessary to understand an encroachment on subjective civil law. In turn statutory influence is meant an encroachment on the right of the participant of the civil circulation, consisting in negation of the right of the authorised person and shown in forms of non-recognition of the right, contest of the right, breach of law »44« not.

The basis for approach of professional responsibility «is causing of property or moral harm to the beneficiary irrespective of, in what frameworks of the obligation there comes responsibility of the insurer or the insured person (delictual or contractual)» 45.

Thus, if ways of protection specify in a concrete law-enforcement measure by means of which breach of law the protection bases are those juridical facts with which approach there is a necessity for application of ways of protection is eliminated.

42 See: Vitrjansky V.V. Problems of arbitrazhno-judicial protection of the civil rights of participants of a property turn: avtoref. dis.... Dr.s jurid. Sciences. - M, 1996. - With. 14.

43 See: Civil law. The textbook in 42. T. 1 / otv. red. E.A.Sukhanov. - with. 410.

44 Bogdanova E. E. A problem of the basis of protection of the subjective civil rights//Magazine of the Russian right. - 2004. - N 10. - with. 57.

45 Sotnikov S.L.Strahovanie of professional responsibility: disser... kand. jurid. Sciences. - Krasnoyarsk, 2010. - With. 15.

46 See: Vavilin E.V. Realization and protection of the civil rights - M: Volters Kluver,

2009. - WITH. 56.


In turn as a protection frame in the literature it is understood: the mechanism of protection of the subjective civil rights, that is individually built system of legal means and the conditions, directed on ultimate goal achievement on restoration of the broken rights or their suppression нарушения46, or «the legal phenomena expressed in tools (establishments) and acts (technology) with which help interests of subjects are satisfied

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The rights, achievement of socially useful purposes »is provided. To protection frames carry« rules of law, pravoprimenitelnye certificates, dogovory, juridical facts, rights, legal obligations, interdictions, privileges, encouragements, punishments »48, etc. Besides it in the literature to protection frames carry various kinds исков49. The Same approach has been reflected in

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The Russian pre-revolutionary legislation.

Apparently, authors discriminate concepts ways and protection frames, however accurate distinction do not spend. As a rule, ways are defined through means, and means through a measure and legal tools. However distinctions, certainly, are. Considering, for example, as the indemnification, it is possible to establish such way of protection of the civil rights, that means for realisation of the given way can be: the conclusion of the voluntary agreement on indemnification of losses, claim drawing up, a reference to the court with the statement of claim, etc. Thus, we believe, that means are those tools with which help ways of protection of the civil rights are realised.

47 Malko A.V. Legal means: theory and practice questions//Magazine of the Russian right. - 1998. - N 8. - with. 66-67.

48 See: Malko A.V. the Decree. soch. - with. 66 - 67.

49 See: the civil procedure Textbook / under the editorship of M.K.Treushnikova. - M: Publishing house "Spark", 1996. - With. 147.

50 Svod kassatsionnyh polozhensh on voprosam the Russian civil law of procedure for 1866 - 1913. Composer V.L.Isachenko Senator. The edition the second. - S.-Peterburg, 1914. The note to item 2037. - With. 232.

51 See: Gorshenev V.M.Sposoby and organizational forms of legal regulation in a socialist society. - M, 1972. - With. 17.

52 See: the Civil law of procedure of Russia / under the editorship of M.S.Shakarjan. - M: "Bylina", 1996. - With. 6.


As protection forms in the legal literature are understood: the complex of the procedures carried out pravoprimenitelnymi by bodies or the authorised person within the limits of remedial process and directed on restoration (acknowledgement) broken (challenged) права51 regulated by the right; a certain order of protection of the right that or other jurisdiktsionnym органом52; a complex of the internal adjusted organizational actions for protection of the rights proceeding in

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Frameworks of a uniform legal regime.

Classification of forms of protection of the right is spent or depending on the subject carrying out protection. Allocate: judicial, administrative, arbitration, notarial and public forms of protection of the right and protected by the law интереса54. And. P.Vershinin allocates judicial (in particular, protection of the rights by general jurisdiction vessels, arbitration and the arbitration courts), the administrative and mixed forms jurisdiktsionnoj protection права55. A.A.Dobrovolsky and S.A.Ivanov consider claim and not claim forms of protection civil прав56.

Discriminate in the literature also jurisdiktsionnuju and nejurisdiktsionnuju protection forms. Under jurisdiktsionnoj the protection form understand the activity of the bodies authorised by the state directed on protection of the civil rights. nejurisdiktsionnoj it is considered activity of the most authorised person on protection broken, challenged or denied in other form

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The civil rights without the reference to competent bodies.

53 See: Butnev V.V. To concept of the mechanism of protection of rights. - Vladivostok: Far East state university, 1989. - With. 9.

54 See: Chechot D.M. the Right and forms of its protection. - Leningrad: Publishing house of the Leningrad university, 1968. - With. 53.

55 See: Vershinin A.P.way of protection of the civil rights in court. - SPb.: publishing house of the St.-Petersburg university, 1997. - With. 20 - 21.

56 See: Dobrovolsky And. A, Ivanov S.A.Osnovnye of a problem of the claim form of protection of the right. - M: Moscow State University Publishing house, 1979. - With. 25.

57 See: I eat. I. 2 izd. / under the editorship of E.A.Sukhanov. - M: Publishing house "Бек", 2000. - With. 411.


Hence, depending on the form of protection ways of protection are realised or is direct the person, whose right is broken, or the government authorised body. There are ways of protection which can be realised only in one form, for example, jurisdiktsionnoj. So to nullify the certificate of the state body it is possible only in court (item 13 GK the Russian Federation). The Great bulk of ways of protection can be realised both in jurisdiktsionnoj, and out of jurisdiktsionnoj to the form. Hence, the form is a certain order of realisation of a way of protection.

The carried out analysis allows to approve, that insurance of professional responsibility concerns ways of protection of the civil rights as represents a concrete measure by means of which breach of law is eliminated. As criteria for insurance reference to ways of protection the object insurance (valuable interest) acts; presence of losses as a result of a professional error; performance by insurance of such function of protection as restoration of the broken position and indemnification.

Value of institute of insurance of professional responsibility as way of protection of the civil rights consists in restoration of the broken rights and indemnification of losses of the dissatisfied party. In such situation function is shown kompensatornaja and pravovosstanovitelnaja.

However indemnity against liability functions consist not only in indemnification and restoration. The important place is occupied here with distribution function. As we specified above, insurance gives protection to all parties of insurance legal relation. The person who is carrying out insurance of the professional responsibility receives protection owing to redistribution of losses when adverse material consequences can be assigned not only to this person, but also on the insurance organisation where responsibility is insured. Thus, it is possible to speak about distributive function of insurance of professional responsibility.

In the scientific literature in the maintenance of distributive function include: brave, precautionary (preventive), savings, control, инвестиционную58.

We believe, what not we can consider all allocated functions as functions

Insurance of professional responsibility. Recognising that function -

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58 See: Smirnova M. B. The insurance right: the Manual. - M: JUstitsinform, 2007. - With. 45; Basakov M. I. Insurance business: the Course of lectures. - M, 2001. - With. 8, 9.

59 See: Matuzov N. I, Malko A.V. Theory of state and law: the Textbook. - M: JUrist,

2004. - WITH. 45.


These are the basic directions of activity under the decision of the standing purposes and problems and in functions the essence of a concrete concept, its nature and social appointment is shown, brave function cannot concern a category of functions a priori. Risk presence stimulates insurable interest occurrence, but in any way is not the basic direction of action of this or that legal phenomenon. The risk (in our case presence of risk of a professional error) is in our opinion, one of the bases of occurrence insurance of professional responsibility.

Precautionary function is directed on prevention, localisation and restriction of negative consequences of fulfilment of professional errors. Savings function proves in accumulation of money resources on a case of fulfilment of professional errors. These functions, certainly, are inherent in insurance of professional responsibility.

Control function, in opinion авторов60, consists in complete formation and insurance fund use. However here, in our opinion, there is a substitution of concepts. Control function can be at certain bodies, but not at insurance as civil matter.

Insurance investment function is shown in participation possibility of temporarily available assets of the insurance fund in investment activity of the insurance organisations, replenishment at the expense of a part of profit (income) of insurance operations. We specified in this function of insurance above, I analyze value of insurance for the insurance organisations.

Thus, from all allocated functions of insurance to insurance of professional responsibility it is possible to carry: precautionary (preventive), kompensatornuju and pravovosstanovitelnuju, savings, investment. Thus the savings and investment concern directly the insurance obligation, and precautionary (preventive), kompensatornaja and pravovosstanovitelnaja characterise insurance as a way of protection.

60 See: Smirnova M. B. The decree. soch. - with. 45; Basakov M. I. The decree. soch. - with. 8, 9.

Considering the carried out research it is possible to allocate four specificity of insurance of professional responsibility: the first consists that protection provides as the right of the subject who is carrying out professional work that allows to limit it from unforeseen losses, and the subject who is getting a job, service, from the property losses connected with professional errors. The second - object of insurance acts not substantiated property, and interest. The third - this interest is directly connected with certain professional work. The fourth - functions savings and investment concern directly the insurance obligation, and precautionary (preventive), kompensatornaja and pravovosstanovitelnaja characterise insurance as a way of protection.

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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

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