Die Überwachung des versicherungsaufsichtsrechtlichen Risikomanagement durch den Aufsichtsrat

§ 64a VAG intensifies control of insurance undertakings through their supervisory board concerning risk management. These extended duties and the new risk management specific qualification standards will result in higher liability risks for the members of the supervisory board. However, the new law does not ensure that the supervisory board is supplied with the information necessary to comply with these requirements. Particularly information of the supervisory board of insurance undertakings in a group is seriously insufficient. On the other hand the Federal Financial Supervisory Authority in its MaRisk VA Circular concedes rights to information to the supervisory board which conflict with the basic conception of corporate law, e.g. permanent direct contacts between the supervisory board and staff of the risk management function. Insurance undertakings can react to the new challenges by professionalizing the supervisory board, establishing audit committees, internal limitation of the admissible maximum number of supervisory board’s seats and/or by purchasing D &; O insurance.     

Neues Aufsichtsrecht für Aufsichtsr?te durch den Regierungsentwurf zum 10. VAG-?nderungsgesetz

The Transformation of the Solvency II Directive into the German insurance supervisory law will lead to more exacting tasks for the members of supervisory boards, which will have a significant impact on their qualifications. The directive, however, doesn??t stipulate fit an proper reqirements for the members of supervisory boards, so that German corporate law provides the relevant standards. The German governement??s draft of the transformation act, which still requires ??Sachkunde??, conflicts with German constitunional law and European supervisory law.     

Deutscher Aufsichtsrat versus Schweizer Verwaltungsrat – Systematischer Abgleich und Evaluation der zentralen Kontroll- und Leitungsgremien im deutschsprachigen Versicherungsbereich

We compare the supervisory boards of Swiss and German companies and the special rules for the insurers in these two countries. While the regulation is comparable, the mandate of Swiss boards is more extensive. The Swiss regulatory guidelines, however, usually have a less binding character than the German ones and let the insurance companies act more freely. We evaluate the regulation of the board regulation using results from academic studies and conclude that the Swiss regulation seems to fit better and to be more effective. In addition we compare all legal forms insurance companies can choose from regarding the regulation of the supervisory board. Although the regulation for listed share companies is highest, in both countries differences are minor.     

Should I stay or should I go? Former CEOs as monitors

In the German two-tiered system of corporate governance, it is not uncommon for chief executive officers (CEOs) to become the chairman of the supervisory board of the same firm upon retirement. This practice has been the subject of controversial debate because of potential conflicts of interest. As a member of the supervisory board, the former CEO must monitor his successor and former colleagues and is involved in setting their pay. We analyze a panel covering 150 listed firms over a 10-year period. Consistent with a leniency bias, we find evidence that firms in which a former CEO serves on the supervisory board pay their executives more. We further find weak evidence that the compensation of the members of the supervisory board is also higher. Short-run event study results indicate that the announcement of the transition of a retiring CEO to the supervisory board is considered good news. Thus, despite the increases in executive compensation we document, CEO transitions are not a cause of concern for shareholders.     

Konvergenz des Versicherungsvertragsrechts in Europa?

Insurance law has been embedded in an international context ever since. This is true not only for marine insurance and reinsurance but also for manifold other branches of the insurance sector. Against this background, the European Single Market and the intended legal harmonisation and integration are particularly important for insurance contract law. The future development of insurance law should give special attention to the question if and to what extent there is a convergence in the respective member state insurance contract laws. At the outset, the comparative analysis shows that French and German insurance contract law is governed by a “risk bearing community model” (Gefahrengemeinschaftsmodell) and that English law can be characterized as an “individual contract model” (Individualvertragsmodell). Convergence is not only found in European directives but also in reforms and reform proposals in member state law.     

Solvenzanforderungen in der Versicherungsaufsicht nach Solvency II und künftigem VAG

Solvency II leads to a new system of solvency requirements for insurance undertakings based on a risk-oriented approach. Risks have to be covered by own funds of the insurance undertakings. This academic legal paper analyzes and systemizes the new insurance related solvency system according to the Solvency II-directive, the proposed Level 2-Regulation and the proposed new German Insurance Supervision Act (VAG). It focuses then on the three problematic areas under the new solvency regime, i.e. complexity, volatility and procyclical effects. Finally it turns to the new roles, which the boards of directors and supervisory boards of insurance undertakings, the supervisory authorities, the courts and the academics will play in the Solvency II-process.     

Die niederländische Gesundheitsreform 2006 – Vorbild für eine weitere Reform des Krankenversicherungswesens in Deutschland?

The health sector of many European countries has been subject of a profound process of change for years. Since the federal elections of 2009 a discussion on the direction of the German health insurance system has emerged. In this context, German neighboring countries like Switzerland or the Netherlands are considered due to their changes in health policy for decades. This work deals with the effects of the recent Dutch health care reform. Due to the combination of the two elements “Bürgerversicherung” and “Kopfpauschale”, it serves as a possible model for further reform in the German health system since its introduction in 2006. Special attention was paid to the consolidation of statutory and private insurance in a general citizens insurance in the Netherlands “three-pillar model”. Because of the medium-term time horizon, financial impacts on state and private households and changes in competition between insured individuals, insurers and providers could be analysed. Especially, positive effects in terms of increasing competition and reducing the two-tier health care became apparent.     

德国监事会制度的源流考察及其创新发展

本文考察了德国监事会制度生成及演进的路径。在外部环境的复杂性与不确定性不断增强的情况下，公司的经营权逐渐转移到董事会手中。为了在经营中维护投资者的利益，监事会作为一种监督制衡机制得以产生。在德国监事会制度变迁过程中，依存一定的历史路径，不同的利益主体通过不断的博弈，最终由国家主导，在监事会中确立了劳资双方代表人数均等以及银行代表、独立监事共同参与的机制，实现了监事会从机能到结构的创新发展。根据德国监事会制度演进的经验，本文提出了我国监事会制度建设的政策建议。     

Aufsichtsrats- bzw. Diversitätsmerkmale und Profitabilität von deutschen und österreichischen Versicherungsunternehmen

This paper focuses on supervisory boards and investigates various board characteristics for the largest German and Austrian insurance companies. Furthermore, the study examines the link between diversity policies and financial performance.The study reveals some differences between the two aforementioned countries, which are mainly driven by size effects. In addition, the analysis shows that larger and stock listed insurance companies have better diversity management policies and a higher proportion of female directors. There is no significant correlation between gender diversity measures and profitability.     

保险治理与公司违规——董事高管责任保险的治理效应研究

公司治理机制被认为是影响公司违规的重要因素,然而董事高管责任保险作为一种重要的外部治理机制,是否会影响公司违规尚未得到充分研究。本文研究发现董事高管责任保险显著降低公司违规概率,符合监督效应假说。经工具变量法、Heckman两阶段模型和倾向得分匹配法稳健性检验,上述结论依然成立。影响机制分析表明,董事高管责任保险显著降低了公司违规倾向,显著增加了违规后被稽查的概率,并降低了上市公司的第一类代理成本。对董事高管责任保险的监督职能做进一步分析发现:(1)董事高管责任保险对上市公司经营违规和领导人违规的监督效应更为显著,但对信息披露违规的治理作用并不显著;(2)董事高管责任保险发挥的监督职能与股权属性和保险机构股东治理存在替代效应,与外部审计师治理和董事长CEO二职分离存在互补效应;(3)分组检验结果表明,董事高管责任保险对公司违规的监督效应在外部监管环境较差或者公司内部信息透明度较高的情况下更加显著。本文既提供了保险合约通过公司治理渠道影响公司违规的证据,同时也表明保险机构通过董事高管责任保险为中国资本市场提供了一种较为有效的公司外部治理机制。     

Die Private Krankenversicherung im Fokus des Verfassungsrechts

Starting with the question as to the extent to which the state may interfere with economic interests at all, a brief historical overview is given through to the regulations currently in force. The Basic Law (Grundgesetz) remains neutral on this issue so that the question cannot be discussed as to whether regulations are at all conceivable and admissible but how far these can go. The noteworthy parameters of the German law on intensifying competition in the statutory health insurance system (GKV-WSG) are then highlighted: the collision of the reform of private health insurance law with the reform of the entire insurance contract law as well as the length of the individual provisions and the correlating remark of member of parliament Merz in the Cicero magazine according to which no single member of parliament had even a rudimentary understanding of he was actually deciding on. From the point of view of substantive law, the main “diseases” of the GKV-WSG are strikingly shown, including in particular the creation and design of the basic rate as well as non-terminability etc. Finally reference is made to the double balancing act with which the private health insurance system is confronted: on the one hand the statutory health insurance system with its allocation principle and the private health insurance system with it superior principle of equivalence that wakens the desires of 4/5 of the German population who live in a poorly functioning system; on the other hand the field of tension between individual and collective consumer protection, i.e. between the high standards which are to be created for individuals which are then ultimately to be borne by the collective.     

Auswirkungen der Neuregelungen im Versicherungsaufsichtsrecht auf das Gesellschaftsrecht,insbesondere Geschäftsleiterhaftung und Managementvergütung

The article deals with the impact that recent legislation in German Insurance Supervision law concerning both directors’ liability and management remuneration exercises on the law of corporations applicable to insurance companies. In both areas the general rules of corporate law are presented first, followed by an examination of the specific new supervisory rules. Considering everything, three results may be named: (1) The principle that directors are bound to observe any relevant legal rule constitutes a link between the supervisory rules and the law of corporations; (2) the new legislation has lead to an increase of surveillance, and (3) in practice an efficient use of existing self-regulatory mechanisms within the corporation should make any intervention by supervisory authorities unnecessary.     

Zum Treuhänder des Sicherungsvermögens unter dem neuen Versicherungsaufsichtsgesetz – Auswirkungen der Solvency II-Umsetzung

This paper is about the consequences of the transposition of the Solvency II Directive into the new German insurance supervisory law (VAG 2016) on the trustee for monitoring of the guarantee assets. The trustee of the guarantee assets is a national security mechanism to protect policyholders in case of insolvency of their insurance undertaking. The previous German Regulation of Investments (AnlV) is not valid any more for insurance undertakings falling under Solvency II since 01.01.2016. Instead of legal investments rules insurance undertakings are now obliged to have a (written) internal investment policy, which is also the basis for monitoring of guarantee assets by the trustee. Challenges arise because of the clash of the accounting view (German local GAAP) and the market valuation view of Solvency II. Our analysis contributes to a better understanding of the interplay between unchanged legal provisions and the new economic, risk based perspective of Solvency II.     

Life Expectancy in the Future

Abstract

The public responsibility of life insurance actuaries has changed from supervisory compliance with detailed state laws to certifying adherence to more general regulatory objectives complemented by actuarial standards of practice.     

董事会断裂带与企业薪酬差距

高管与普通员工之间的薪酬差距不仅影响着企业的激励效率与企业价值,还关系到社会的公平与稳定。断裂带是Lau and Murnighan(1998)提出的假想的分割线概念,即可以将团队划分为多个小团体。以2005—2019年中国A股上市公司为样本,本文从董事会断裂带这一视角探索董事会中小团体的差异性对于薪酬差距的影响和后果。本文研究发现:(1)董事会断裂带的存在加剧了企业高管与普通员工之间的薪酬差距;(2)分解董事会断裂带的类型后,由深层特征形成的断裂带对于薪酬差距的影响高于由表层特征形成的断裂带;(3)区分行业竞争的程度后,公司所在行业的激烈竞争有助于缓解董事会断裂带造成的薪酬差距扩大;(4)从经济后果来看,董事会断裂带造成的薪酬差距对企业绩效具有显著的负向影响。本文的研究有助于深入理解企业薪酬差距形成的机制及其后果,同时对于完善我国董事会的监督机制也有一定的现实启发。     

Growth of the Public Responsibility of Actuaries in Life Insurance

Abstract

The public responsibility of life insurance actuaries has changed from supervisory compliance with detailed state laws to certifying adherence to more general regulatory objectives complemented by actuarial standards of practice.     

Board 3.0: What the Private‐Equity Governance Model Can Offer Public Companies∗

The authors view board structures as an adaptive institution that responds to the key challenges faced by public companies: helping management solve the problems of production and organization of large‐scale enterprise; limiting managerial agency costs; serving as a delegated monitor of the firm's compliance obligations; and responding to the governance environment of changing shareholder ownership patterns. U.S. company board structures are shown to have evolved over time, often through discontinuous lurches, as particular functions have waxed and waned in importance. This article is part of a larger project that traces two iterations of the public company board, what the authors call Board 1.0 (the “advisory board”) and Board 2.0 (the “monitoring board”). The authors argue in particular that Board 2.0, as embedded in both current practice and regulation, now fails the functional fit test for many companies. First, it does not scale to match the dramatic increase in the size and complexity of many modern public corporations. Second, at a time of reconcentrated ownership achieved through institutional investors and increased activism, it does not have the expertise and commitment needed to resolve the tension between managerial or market myopia, or “short‐termism,” and managerial “hyperopia.” This article holds out an optional alternative, Board 3.0, which would bring to the public company board some strategies used by private equity firms for their portfolio company boards. Such “Portco” boards consist of directors who are “thickly informed,” “heavily resourced,” and “intensely interested.” Bringing such “empowered directors” to public company boards could facilitate evolution of the public company board model in response to dramatic changes in the corporate business environment. The authors also suggest possible routes for implementing Board 3.0, including the enlisting of PE firms as “relational investors” that would have both capacity and incentives to engineer changes in board structure.     

Die offene Mitversicherung als Outsourcing

Transfer of tasks to the leading insurer when establishing a co-insurance is common. German insurance supervision law classifies this delegation as an outsourcing and provides legal requirements regarding its performance. After the full installation of the Solvency II-regime this form of outsourcing will have to meet changed legal requirements. Fulfillment of legal requirements needs to be harmonized with the legal specifities of co-insurance, which evolve from the legal relationships of the co-insurers with each other.     

Strategisches Asset-Liability Management in der Versicherungswirtschaft — Ein Ansatz zur integrierten Bilanzstrukturoptimierung

Asset-Liability Management has gained increased significance within the German insurance industry. This was mainly driven by recent capital market developments. In fact, insurers have encountered challenges to earn given interest guarantees. Regulatory changes also require more sophisticated ALM-tools. Solvency II will change the underlying paradigm and shift balance sheets perception towards a market value oriented view. Especially liabilities will have to be accounted for using the fair value approach. Most ALM-tools appear to be unable to cope with these demands. To improve this current practice, in this paper a Markowitz-approach is employed in order to generate an integrated method for the optimization of assets and liabilities in the life insurance industry. This technique aims to link new regulatory requirements to the latest capital market theory and therefore delivers a procedure for an integrated asset allocation policy in the insurance industry.