Das Versicherungsvermittlerrecht nach der Reform

The EC Directive on insurance mediation has been implemented into German Law two and a half years late by the Insurance Intermediary Law Revision Act of 19^th December 2006, which has been enacted on 22^nd May 2007. On the one hand, this Act contains regulations on the professional law which are provided in the Industrial Code (Gewerbeordnung — GewO). In principle according to section 34d GewO, professional insurance intermediation is an activity requiring a licence. This licence is only granted under the condition that the applicant is able to present the conclusion of a professional indemnity insurance and a certificate that the applicant has passed an examination of knowledge and ability held by the chambers of industry and commerce (IHK). In fact, the exceptions from this principle prevail. Tied insurance agents are exempted from both conditions by act of law. Product accessory intermediaries can be exempted from the examination of knowledge and ability upon application. Employees of an insurance intermediary need to prove their knowledge and ability only to their employer. On the other hand the Insurance Intermediary Law Revision Act contains besides the regulations on professional law also new obligations of information, communication and consultation for the insurance intermediary. These obligations have been implemented into a professional law ordinance and into sections 42b und 42c Insurance Contract Act (VVG). The ordinance regulates the obligations of the insurance intermediary to provide the customer with information about his status. Sec 42b (1) VVG regulates the obligation of an insurance broker to give an advice on the basis of an analysis of a sufficiently large number of insurance contracts and insurance undertakings. Sec 42b (2) VVG regulates obligations of an insurance agent to inform the customer before the conclusion of an insurance contract about the market conditions and information basis he uses for his service, if the customer has not waived this right (sec 42b (3) VVG). Sec 42c (1) VVG further provides an obligation of the insurance intermediary to ask questions depending on the situation, an obligation to give advice depending on the situation and on the price of the product including an obligation to tell the reasons for the advice and finally an obligation of documentation. Sec 42c (2) VVG gives the consumer a right to express a waiver in writing to advice and documentation. Sec 42e VVG awards the costumer damages in the event that there has been a breach of the obligations regulated in sec 42b and 42c VVG. The Insurance Contract Law Reform Bill still has to be passed by parliament. Sec 1 of this Bill contains the new Insurance Contract Act. It is planned that this new Insurance Contract Act shall be enacted on 1^st January 2008. Sec 69 to 73 new Insurance Contract Act provide a complete revision of the law of the insurance agent’s representative authority which is now regulated in sec 43 to 48 of the old Insurance Contract Act (VVG). At the moment the law of insurance agent’s representative authority established by the courts differs extremely from the written law. Therefore the new Insurance Contract Act will bring only minor changes of the actual law. For most parts, the only aim of the reform is to adapt the law in action with the law in the book.     

Die Rechtsstellung der Prämien-, Bedingungs- und Deckungsstocktreuhänder nach dem VVG und dem VAG

The legal statuses of ?trustee for premium changes“, ?trustee for condition changes“ and ?trustee for coverage fund“ are comparable. All of them act under private law. Their function is slot in ahead of the grievance control of the supervising agency. The trustees are supposed to relieve the supervising agency and to inform it about the competitive practices of the insurance companies. The legal provisions concerning the trustees for premium and condition changes as stated in the VAG rank equally with those stated in the VVG. The rights to adapt contracts stated in §§ 172 and 178 g VVG have the characteristics of a one-sided right according to § 315 BGB. These rights allow the insurance company to pass on the risk of future changes of actuarial bases. Under private law, the independence of the trustees is merely a formal condition. Their declaration of consent has to include the reasons for the consent.     

Der Umfang des Ruhens der Leistungspflicht des Versicherers in der privaten Krankenversicherung

In this essay the author looks at the figure of the rest of the insurer’s duty of performance in German private health insurance as it is regulated in section 193 p. 6 VVG. After describing the basic rules, she analyses which kinds of performance rest and which the insurer despite the rest of his duty has to fulfill. In this case the author, too, looks at the opinion formulated in literature that the rest means a restriction to the level of the basic tariff. She concludes that the purpose of the figure intended by the legislator, having a sanction for non-paying policyholders, is not achieved.     

Die Erhebung personenbezogener Gesundheitsdaten bei Dritten

The recently introduced § 213 VVG is linked to an interesting history and regulates an issues that had been discussed in the insurance industry for some time. In its application § 213 VVG is more particular than regulations by the German data protection act, at least concerning the collection of health data. For the processing and usage of data the regulations of the German data protection act still apply. Time will show whether § 213 VVG will lead to a reconciliation of interests of the insured with those of the insurer. The aforementioned two-week-period for the data survey might be a contribution to achieve this goal.     

Die Haftpflichtversicherung nach der VVG-Reform

The reform of the German Insurance Contract Act (Versicherungsvertragsgesetz, ?VVG“) also targets key aspects of third-party liability insurance. The changes go beyond the findings made by both the courts and legal authorities to date.Compulsory insurance aside, the law still provides that an injured third party has no standing to assert a claim directly against the tortfeasor’s liability insurer. The tortfeasor may assign its indemnity claim against the insurer solely to the injured third party and may no longer be precluded from doing so under the General Insurance Conditions (AVB). Consequently, the tortfeasor’s indemnity claim against the insurer effectively becomes a pecuniary claim. This is criticised by the insurance industry particularly with regard to eliminating the prohibition against acknowledgment and satisfaction of claims.In the future, third parties will be able to assert claims directly against the tortfeasor’s insurer and this will be the case for compulsory insurance across the board. Provisions currently in effect in the motor vehicle liability insurance industry will be carried over to the entire compulsory insurance sector. Compulsory insurance does permit agreements involving self-deductibles. However, such agreements are generally effective only as between the insurer and the tortfeasor inter se, i.e. they are not effective as against third parties — in contrast to valid disclaimers of risk.Another change in compulsory insurance is the hierarchy of claims for compensatory damages and relief in the event the insured amount is inadequate. Specifically, the hierarchy gives preference to individual claims of injured parties which are not otherwise covered, such as claims for pain and suffering.The prohibition against the retroactive loss of provisional coverage for failure to pay the first premium, which had been criticised primarily by motor vehicle liability insurers, has been omitted in the Government bill.     

Vorvertragliche Informations- und Aufklärungspflichten des Versicherers nach finnischem Recht

The essay deals with the regulation of the pre-contractual duty of the insurer to inform and advice the prospective policyholders according to the Finnish law. The regulation could possibly be used as a model for the amendment of the German Insurance Contract Law (VVG). The widely amended Finnish Insurance Contract Law (VSL) came into force on 1. 7. 1995. The regulation of the pre-contractual duties of the insurer was one of the most important amendments of the law. According to sec. 5 VSL, the insurer shall give the insurance applicant the information which is needed for the assessment of the insurance requirement and for the choice of the insurance before the insurance agreement is entered into. If the insurer or his representative has neglected to provide the policyholder with the necessary information concerning the insurance or has provided him with faulty or misleading information, sec. 9 VSL will apply. According to it, the insurance agreement is considered to be in force with the content which the policyholder had reason to infer on the basis of the information which he had received. The provisions are general clauses. The essay explains the details of the provisions through the cases which have been solved by the Finnish Complaints Boards.     

Das Inflationsproblem bei der Übertragung von individuellen Alterungsrückstellungen in der privaten Krankenversicherung

In an ageing population, as e.g. in Germany, intergenerational justice is much better achieved in a capital funded health insurance system (as the PKV) than in a pay-as-you-go scheme (as the GKV). But the capital funded system leads to a lack of competition because insurants loose their ageing provisions if they switch their insurer. This problem can theoretically be solved by a transfer of ?individual ageing provisions“. But the implementation of this concept has three main difficulties: the calculation, the verification and the inflation problem. This article focuses on the inflation problem. It is shown that the inflation problem can be resolved by modifying the individual ageing provisions in a special way. Future research should concentrate on the calculation and verification problems.     

Überlegungen zu einem fairen Risikomanagement-Mix in Versicherungsunternehmen

This article deals with the question of how a ?fair risk management mix“ that does not lead to a wealth transfer between shareholders and policyholders can be achieved in a joint-stock insurance company. In our financial model of an insurer, the ?fair“ situation, it is assumed that there is no wealth transfer between shareholders and policyholders when both parties receive a net present value of zero on their investments. Taking the default risk of the insurance company into account, we first model a ?fair“ situation for the insurer’s existing portfolio. Surprisingly, closing a new insurance contract that has been priced on a fair basis and then included in the insurer’s existing portfolio leads to a disequilibrium situation because the net present value for the shareholders is no longer zero. This new net present value can be viewed as the fair price of any risk management measure the insurer must take so as to reestablish an equilibrium for both parties, the shareholders and the policyholders.     

Financial Intermediary Versus Production Approach to Efficiency of Marketing Distribution Systems and Organizational Structure of Insurance Companies

An examination of the efficiency of the marketing distribution channel and organizational structure for insurance companies is presented from a framework that views the insurer as a financial intermediary rather than as a “production entity” which produces “value added” through loss payments. Within this financial intermediary approach, solvency can be a primary concern for regulators of insurance companies, claims‐paying ability can be a primary concern for policyholders, and return on investment can be a primary concern for investors. These three variables (solvency, financial return, and claims‐paying ability) are considered as outputs of the insurance firm. The financial intermediary approach acknowledges that interests potentially conflict, and the strategic decision makers for the firm must balance one concern versus another when managing the insurance company. Accordingly, we investigate the efficiency of insurance companies using data envelopment analysis (DEA) having as insurer output an appropriately selected (for the firm under investigation) combination of solvency, claims‐paying ability, and return on investment as outputs. These efficiency evaluations are further examined to study stock versus mutual form of organizational structure and agency versus direct marketing arrangements, which are examined separately and in combination. Comparisons with the “value‐added” or “production” approach to insurer efficiency are presented. A new DEA approach and interpretation is also presented.     

Die geplante Umsetzung der Richtlinie zum Fernabsatz von Finanzdienstleistungen — Konsequenzen für die Einbeziehung von AVB

The German legislator is planning to realize the guiding principle of distant considering financial service within the VVG. It’s basically welcomed because of the clarity it would deliver. It should be possible to also use the German policy model for distant selling. The necessary methods of procedure, which were used up until now, will be simplified by the introduction of the textform. It should be taken into consideration that the consumer forth needs to acquire the demanded information. The legislator should abide more strongly to the allegation of the guiding principle to avoid exposition difficulties. The signing of short term insurance contracts within distant selling adds difficulties. One must add information about an especially granted right of withdrawal which the consumer may exercise.     

Informations- und Beratungspflichten des Versicherers nach der VVG-Reform

The insurer’s duty to enable the customer to come to an appropriate decision, providing advice and information, is a central topic of the reform of the German insurance contract law. The obligations of intermediaries given by the Directive 2002/92/EC on insurance mediation are transferred to insurers and thereby enlarged in some aspects. The duty to give advice in §6 I 1 VVG depends on the objective circumstances of each individual case depending upon either the complexity of the insurance contract and problems in understanding its terms, or the characteristics and situation of the customer. Therewith, the regulation both refers to former jurisdiction and exceeds it by implementing a duty for the insurer to ask for the demands and the needs of the customer. Without reason in the special case the customer has to disclose his need for advice to obtain it. During the term of the contract the insurer is only obliged to give advice if he knows or — acting diligently — could know the needs of the policy-holder. On a European level further duties to inform and advise could help to achieve an effective internal insurance market.     

Zur Bedeutung von Gentests beim Abschluß von Lebens- und Krankenversicherungsverträgen

The investigation deals with constitutional and insurance law problems of gene tests on completion of life and health insurance contracts. There are predominate reasons for the admissibility of a fundamental prohibition of predictive gene tests as a requirement of the completion of an insurance contract. Exceptions from the prohibition are only thinkable in special cases. Gene tests that were already performed should be allowed to be used by the insurer (only) if the insurer offers an expectancy insurance to the person affected. Furthermore the person must be informed about possible insurance related and legal risks before commencement of the test by the physician.     

Ein Risikoausgleichsmodell für den Wettbewerb um Bestandskunden in der PKV

The capital funded health insurance system in Germany (the PKV) is afflicted with a lack of competition because insurants lose their ageing provisions if they switch their insurer. So far an adequate model for the transfer of ageing provisions regarding economic as well as actuarial aspects is missing. In this paper we develop a model for the transfer of ageing provisions in the German PKV, which is consequently based on the existing calculation methods. We show the necessity of a new risk adjustment reserve providing a signal for the the risk level of health insurance collectives. From a calculative point of view, the risk adjustment reserve is connected with the basis for actuarial calculation of the PKV collectives. Further studies should concentrate on quantifications of the derived model components.     

Die Diskussion über die Portabilität von risikogerechten Transferbeträgen in der Privaten Krankenversicherung

The capital funded health insurance system in Germany (the PKV) is afflicted with a lack of competition because insurants loose their ageing provisions if they switch their insurer. This leads to prohibitive switching costs even after few years of insurance. An intensified competition can only be achieved by transferring ageing provisions with the switch-over. But this raises complex economic and actuarial questions.The article starts with a motivation of the appropriateness of calculative ageing provisions. These quantities can be transferred. A further amount has to be transferred in order to avoid risk selection. Central requests for a mechanism to determine such risk adjustment amounts are derived. After that, options for an implementation are lined out.     

Feintuning im Recht der Lebensversicherung zu § 169 Abs. 5 VVG – Neues zum Stornoabzug bei Einmalbeitr?gen sowie zu separaten Abschlusskostenvereinbarungen

The first part of this article deals with surrender charges. Due to the incredible increase of single premium life assurances this already written off instrument came back to discussion. The increase is based on the high income within the range of life assurances compared to interest income for safe investments. Speculations against to the collective of insured become possible as the right of the policyholder to notice a life assurance at any time, §?168 VVG, is inalienable, even concerning single premium assurances. Alerted by that, the Federal Financial Supervisory Authority (??BaFin??) demands appropriate surrender charges within the single premium matters. However, literature prefers a surrender charge caused by capital market which is consolidated into a lump sum to the amount of 0,2 per cent regarding the total payment of interest, for each year by which the single premium contract is going to be terminated before expiring after 10 years. This point of view can basically be followed. For reasons of principle consideration, the surrender charge must certainly be determined significantly lower than proposed, namely with 0,1 per cent each year. De lege ferenda, the alternative to make restrictions to the right to give notice for single premium assurances may be taken into consideration. The second part of this article deals with acquisition costs. The regional court of Rostock considers a separate agreement relating to cost averaging??whereby the policyholder must continue to pay the instalments for the acquisition costs even after the termination of the life assurance??to be a ??Umgehungsgesch?ft?? (evasive transaction) to §?169 V 2 VVG and is for that reason void. This cannot be followed. A?thoroughly interpretation of the provision shows that it does not prohibit the result, namely the deduction of the surrender value below the value which is determined by §?169 III VVG. The result is rather then prohibited when it is achieved by the non-transparent way of a set off of the costs with the paid assurance premium. That point of view of the regional court of Rostock is therefore contra legem. As the right to modify law is reserved to the legislative authority, it is well advised to observe the actual development for a certain period of time. In regard to that result the policyholder is not made vulnerable. Oftentimes, the liability for consulting activities of the insurer and his intermediaries will interfere in his favour.     

Grenzen der Auskunfts- und Belegpflicht in der D&O Versicherung

A large number of claims brought under German D&O insurance regard Insured vs. Insured cases, i.e. claims brought by the company against its own directors and officers (Executive Directors, Supervisory Board Members etc.). After notification of and examination by the insurer of such an insured event, the insurer will in most cases opt to grant the insured defence cover in order to fight off the claim. The insurer hereby expresses that it regards the claim of the company (= its own policyholder) against the board member (= the insured) to be without merit. This situation—where the policyholder is at the same time the damaged party—though typical under (German) D&O-policies is uncommon for liability insurance cover in general. It, thus, raises the issue as to the limits of the policyholder’s duty to disclose information. The scope of said obligation is not unlimited. It rather has to be ascertained pursuant to Sect. 31 VVG (German Insurance Contract Act), by taking into account the policyholder’s interests in commercial and industrial confidentiality and the burden of poof as provided by Sect. 93 para. 2 AktG (German Stock Companies Act). In case legal proceedings ensue between the company and the insured, and, as a consequence, the insurer exercises its obligation to conduct the case for the insured or the insurer joins the lawsuit on the side of the insured (by declaring a Third Party Notice [Streiverkündung]), the insurer clearly becomes an adversary to the company. Under such circumstances, the company is irrevocably released from its duty to disclose information.     

Verfassungsrechthiche Aspekte der Reform der PKV

On January 1, 2009, the Act to Strengthen Competition in the Statutory Health Insurance System (GKV-WSG) became effective. By final judgement of June 10, 2009, the Federal Constitutional Court declared the health insurance reform compatible with the German Basic Law. Nevertheless, the GKV-WSG fails to comply with the constitutional basic rights of the private health insurance companies, such as freedom of professionalism, the guarantee of properties, the freedom of association and the basic right of general freedom of action. Furthermore the constitutional freedom of contract as well as the principal of protection of legal confidence are violated. In addition, with the GKV-WSG the legislator introduced an unconstitutional special charge: The private health insurance companies and their insurants are held liable to pay for public health needs instead of financing them by tax money. This results in a disproportional claim of private persons for public social needs which is inadmissible by constitution.     

临时保险制度：赔付理由、期间及其限制

我国《保险法》未规定临时保险制度,本文建议,我国的临时保险制度应当分为强制临时保险与自愿临时保险两种,在保险人预收保险费的情况下,根据履行提前、对价平衡、合理期待等理论,保险人应当对临时保险事故予以赔付,此种临时保险的期间自投保人交付保险费之时起算,于正式保险生效之时或投保人收到拒保通知书并由保险人退还保险费之时终止;...     

预收保费与保险责任承担制度研究

目前,在审理保险人预收保费至保险人承保前发生保险事故的赔偿纠纷案件时,审理法院通常认为：保险人预收保费的事实与保险合同成立没有直接关系,预收保费不能证明保险合同成立,保险人对在预收保费后至承保前发生的保险事故不承担保险责任。大多数国家的保险法根据契约公平原则,规定了暂保险和强制临时保险制度。对预收保费后至承保前发生的保险事故,要求保险人依约定或法定承担保险责任。在我国保险市场已经成为国际保险市场的有效组成部分的今天,应当建立以保险立法和司法方式干预保险责任承担机制,为投保人和被保险人提供法律救济。     

Europäische Streitbeilegungsmechanismen bei Meinungsverschiedenheiten zwischen nationalen Versicherungsaufsichtsbehörden

In the course of the reconstruction of the European financial supervisory framework all level 3-committees (namely CEIOPS for the insurance sector) were re-established as fully-fledged authorities of the European Union. These authorities are granted authority to take decisions with immediate effect towards national supervisors. The European Financial Supervisory Authorities, however, form but the upper level of the European micro-prudential supervisory system. The day-to-day supervision of the financial markets will remain to be vested in the national supervisory authorities. By retaining a system, in which the financial supervision takes place primarily at the national level, one also remains to be faced with problems, where insurance undertakings or insurance groups act under the jurisdiction of several national supervisors. Disagreements between these supervisors will, thus, remain to be commonplace. In order to dissolve such disputes, the European legislator has provided for a formalised dispute resolution procedure in granting EIOPA a power to settle disagreements.