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.     

赋予第三者直接请求权与责任保险的风险管控

新《保险法》明确了责任保险中第三者对保险人的直接请求权,受限于中国保险业的发展现状及法律普及程度,第三者直接请求权的赋予将导致责任保险实务中出现新的纠纷,给保险公司带来未知的经营风险。为保证保险公司的稳定经营,有必要加强对诉讼风险的防范,扩大强制责任保险的承保面,加强与新闻媒体及公众的沟通等,以确立对保险公司的利益保护,并以之作为责任保险稳定经营的制度基础。     

Die Marktabgrenzung im Versicherungskartellrecht am Beispiel der Berufshaftpflichtversicherungen

The definition of the relevant market is crucial to the application of European and German competition law and especially difficult when dealing with insurance markets. Generally, the product and geographic market comprises all products or services that are regarded as substitutable by consumers. In addition, the supply-side substitutability can be taken into consideration. In defining insurance product markets, the supply-side substitutability is decisive, because insurance products are seldom interchangeable from a policy holder’s point of view. Applying the concept of supply-side substitutability to professional indemnity insurances leads to product markets correlating with the different professional groups: Indemnity insurances for physicians constitute a product market; insurances for lawyers, notary publics, tax advisers and public accountants form another market and insurances for architects and construction engineers another one. These product markets are still national markets. Professional indemnity insurances are extensively shaped by the differing legal systems, namely by national insurance contract law, by liability provisions and by a legal obligation to insure. Consequently, policy holders cannot substitute their indemnity insurance with foreign insurance products and insurers are confronted with market entry barriers. However, the proposed directive on services on the internal market and the adopted directive on insurance mediation could result in community-wide markets in the near future.     

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.     

Die Bedeutung der Haftpflichtversicherung für die Annahme konkludenter Haftungsausschlüsse

The article covers the practically important question under which circumstances the construction of implied exclusions of liability is influenced by the liability insurance of the injuring party. It is focused on the two practically most relevant case groups in which the jurisdiction considers implied exclusions of liability possible (liability in accommodation agreements and liability in sports). The author firstly shows that under tort law, the consideration of liability insurance is both possible and necessary. Secondly, the author demonstrates that possible objections based in insurance law (such as the principle of separation) are not convincing. This is not limited to compulsory insurances, but applies to all types of liability insurances.     

Aspekte einer Neugestaltung des Rechtes der Versicherungsvermittlung

The current fundamental reform of the German insurance law cannot and will not stop short of the law of insurance mediation. Up to now Sec. 43 to 48 Versicherungsvertragsgesetz (VVG = German Insurance Act) govern only one type of insurance intermediary known as insurance agent. The act only sets up rules to which extent the insurance agent has authority to bind the insurer. In the way the law is construed by the courts it differs in many aspects from the written law. Thus it is suggested to define the generic term ?insurance intermediary“ in the act as well as the subcategories ?insurance broker“ and ?insurance agent“, whereby the term ?insurance agent“ also includes the field staff employed by an insurer. In connection with the diffi-cult distinction between insurance brokers and insurance agents it remains questionable on which type of intermediary the rules regulating the relationship between agents and insurants and thereby protecting the potential customers should be applied accordingly. This controversial and in practice significant question should be explicitly decided by the legislator for reasons of legal certainty. In so far Sec. 43a of the Austrian Insurance Act could act as a model function. Regarding the insurance agents’ authority to receive (Empfangsvertretungsmacht des Versicherungsvertreters) for the insurer propositions exist to explicitly declare Sec. 43 No.l VVG, which grants the agent the authority to receive when accepting a contractual offer for the insurer, as mandatory. This suggestion would be in accordance with the current case law. Furthermore the wording of Sec. 43 No.l VVG should be altered so that the insurants’ pre-contractual risk-notifications, which the prevailing opinion already regards as being included, is explicitly mentioned. In principle Sec. 43 No.2 WG, which grants the agent the authority to receive notifications and representations for the duration of the insurance contract, should be declared as mandatory, too. Exempted should be the authority to receive for dispositions regarding the entitlements to benefits from (life) insurance contracts and the right to receive the insured sum. Sec. 44 WG, which strongly restricts the attribution of the agent’s knowledge to the insurer, is unconvincing, especially from a legal policy point of view. Therefore it is to be cancelled without substitution. Finally the legislator should refrain from codifying the customary liability based on the principles of reliance.     

Wird der vom Regierungsentwurf eines VVG geplante Direktanspruch des Geschädigten gegen den Pflichthaftpflichtversicherer ein stumpfes Schwert? Zur Notwendigkeit eines Informationsanspruchs des Geschädigten in der neuen Pflichthaftpflichtversicherung

The amendment of the German Act on Insurance Contracts comprises a number of substantial modifications regarding liability insurance. The most important modification is the introduction of a direct claim against the insurer with regard to all compulsory insurances. Such a direct claim is up to now only known from the motor vehicle liability insurance. Yet, a direct claim will be advantageous for the aggrieved claimant only if he manages to identify the proper insurer. As a result of the structural differences to the motor vehicle liability insurance the act of identifying the insurer is almost utterly impossible for the claimant without any help by the insured. Thus the claimant must also be given a claim against the insured to be furnished with all necessary information regarding the insurer. This right originates from sec. 242 of the German Civil Code.     

„Unisex-Tarife“ — Gleichbehandlung von Männern und Frauen im privatrechtlichen Versicherungswesen

The enactment of a council directive ‘implementing the principle of equal treatment between women and men in the access to and supply of goods and services’ is beyond the EC’s legislative competences as far as it obliges private insurers to charge ‘unisex-rates’. Especially Art. 13 ECT constitutes no corresponding jurisdiction. Furthermore the compatibility of the draft directive and the principle of subsidiarity as laid down in Art. 5 II ECT is very doubtful. German laws implementing the directive needed to be in accordance with the Basic Constitutional Law of the Federal Republic of Germany since a considerable leeway in implementing the directive is left to the national legislator. In this respect such rules of law are open to judicial review by German courts of justice. The Federal legislator would have a so called concurring legislative competence according to Art. 74 I Nr. 11 GG (insurance industry under private law) and Art. 72 II GG. The legal obligation to apply ‘unisex-rates’ would lead to an unequal treatment of the sexes without adequate justification. Thus German implementation laws would infringe Art. 3 II1 and III 1 GG. The ban of gender-related actuarial factors would, after all, be incompatible with the Freedom of Profession of the concerned insurers guaranteed in Art. 12 I GG.     

Pflichthaftpflichtversicherung für Hersteller von Medizinprodukten – überfällig oder überflüssig?

Given actual legislative initiatives in the German Bundestag the question arises as to whether in the interest of patient safety-compulsory liability insurance for producers of medical devices should be implemented. At present, these proposals for reform are incompatible with the constitutionally-guaranteed principles of professional freedom and freedom of contract. Furthermore, it is questionable whether compulsory liability insurance would in fact improve the situation of patients taking into consideration the insurer’s status and possible release from obligation. Should compulsory liability insurance pass constitutional review due to new factual findings in the future, a direct claim against the liability insurer is not advisable. A possible victim compensation fund is not to be financed by the producers or their liability insurers.     

Die Qualifikation der Aufsichtsratsmitglieder von Versicherungsunternehmen nach VAG und Solvency II

Since 2009, the German insurance regulatory law has provided internal qualification standards for the supervisory board members of insurance companies. In accordance with Paragraph 7a sec. 4 clause 1 VAG, the members of supervisory boards are required to be competent at fulfilling their task and supervisory function in line with their expertise. This new stipulated requirement covers the previous standards of the German corporate law, which has been established by the German Federal Court of Justice (BGH) in its “Hertie”-jurisdiction. As such, this jurisdiction will also serve as a basis to interpret the expertise requirements in German insurance regulatory law. Consequently, each of the supervisory board members is obliged to have a certain minimum level of general competencies, whereby the special expertise and advance knowledge have to be safeguarded within the board. Even if the supervisory board members are not “persons with key functions” as per framework directive of Solvency II, nevertheless the imminent transformation of the existing guidelines into the national law itself will indirectly have an impact on the qualification requirements of the supervisory board members in the insurance company industry.     

Gendiagnostikgesetz und Versicherung: Anspruch und Wirklichkeit

With the new German Gene Diagnostic Act (Gendiagnostikgesetz) the legislator aims at improving the protection of insurance applicants by prohibiting private insurers from collecting and using genetic information. However, the analysis of the new provisions shows that the provisions pertaining to insurance neither provide a comprehensive protection against genetic discrimination of insurance applicants and insured nor do they protect their right of gene-informational self-determination. Cuts of insurance benefits of the insured in private health insurance as well as incoherent disclosure obligations for insurance applicants unconstitutionally limit the rights of affected people as compared to the time before the Gene Diagnostic Act came into force. In summary, the new Gene Diagnostic Act does not only fail to meet its claims and thus falls short of the expectations, but also, due to numerous unclear provisions, poses a series of grave problems for insurance applicants, privately insured and private insurers.     

Regelungsziele der Solvency II-Rahmenrichtlinie

The Solvency II project seeks to achieve a variety of different legal objectives, some of which are pursued directly, others indirectly. Pursuant to the framework Directive its main objective—which it seeks to implement and safeguard directly—is the protection of policy holders and beneficiaries. Other legal aims, taking on the form of secondary objectives, are to guarantee the stability of the financial systems as well as to give special consideration to the pro-cyclical effects of supervisory measures. The Directive, however, leaves several questions unanswered, e.g. regarding the concrete scope of some legal aims and the exact relation between the main objective and the secondary objectives.Other objectives are pursued indirectly, prevalently using specific legislative techniques. To allow for a quick and effective manner in which to amend the more detailed technical provisions, the Lamfalussy process is used. In designing the rules the European legislator opted to apply a principles based approach. This is intended to enhance the supervisory authorities’ leeway when applying the provisions and allows for greater flexibility. The Directive, furthermore, makes a regulatory “clean sweep”, integrating nearly all Directives, which currently make up the fragmented insurance supervisory framework, into one all-embracing legal statute. Moreover the Directive seeks to achieve convergence of national insurance supervisory laws and of their application throughout the member states while at the same time harmonizing insurance supervision with the supervisory rules of the other financial sectors.It can be envisioned that the diversity of legal objectives will sporadically lead to a conflict between two or several of these aims. How such conflicts may be solved—or if they are to be solved by the legislator—remains to be seen.     

Systemlücken im deutschen und europäischen Haftungs- und Schadensrecht

The european liability systems differ widely. The divergences arise in the liability systems themselves, the extent of compensation in relation to damaged property and personal injury claims and the costs of bringing about an action. It is particulary problematic that the person having suffered damages (could say: injured party) cannot insure an unforeseen event and in addition the (tortfeasor) wrongdoer will often have to bear the costs for his own damages.The essay develops a concept of compensation that aims to close the liability gaps through private insurance contracts. In the context of these insurance contracts it is possible to choose the preferred legal system. The european liability and compensation systems can be harmonized without straining the european legislator. Furthermore, the article goes on to show that class action is going to gain more importance in Europe.     

Deckungsbegrenzungen in Pflichtversicherungen – Die Bedeutung des § 114 VVG 2008 für Verträge über Pflichthaftpflichtversicherungen

Numerous liability insurances are mandatory in order to ensure the indemnification of potential victims. These compulsory insurances are regulated by sections 113 et seqq. of the “Versicherungsvertragsgesetz” (German insurance contract law). The new section 114 aims at protecting the victims' financial interests by specifying the necessary scope of cover of compulsory insurances.However, the statutory interpretation of section 114 provides several difficulties: For example, it prescribes concrete amounts on the hand – and contains a vague blanket clause on the other hand. This study wants to disclose these difficulties, develop specific solutions and reveal the fundamental legal interests which lie behind section 114.     

金融创新如何缓解信任品市场失灵?——中国食品安全责任强制保险的自然实验

信任品市场(如食品、医药等)存在的问题一直困扰着中国和世界很多国家。关于产品和服务质量的信息不对称(道德风险和逆向选择)会导致信任品市场失灵。缓解信任品市场失灵,一种常见的解决方案是政府监管;而经济学家认为更加基于市场的解决方案(例如强制责任保险等金融创新)可能更为有效。在理论上,强制责任保险有两种相反的效应:保险公司的监督减少了道德风险 vs. 保险加剧了企业的道德风险,但一直亟待实证检验。幸运的是,中国食品安全责任强制保险的改革实验走在了世界的前列。本文利用了中国在不同地区、不同时间推行的这个自然实验,通过双重差分的方法识别出责任保险对于信任品市场的因果效应。本文的研究发现,强制责任保险能显著降低食品安全事故发生概率。这表明政府强制推行的金融创新可以成为信任品市场失灵的一种有效的替代性解决方案。     

Europäische Richtlinie über Versicherungsvermittlung und VVG-Reform

The directive on insurance mediation, proposed by the European Commission, is supposed to secure a minimum standard of professional competence for intermediaries to protect customers as well as to ascertain the intermediaries’ freedom of establishment and freedom to provide services in the internal market. Pursuant to the directive, only an intermediary who is registered in his / her home country’s intermediary register will be allowed to mediate insurances. The intermediary has to comply with professional requirements set by the directive in order to be registered. Yet, part-time intermediaries can be exempted from those requirements by the member states. Additionally, the intermediaries are burdened with certain information and documentation duties towards their customers, a breach of which will cause personal liability. Only these contractual duties are to be implemented in the WG (German Insurance Act), which is soon to be basically reformed.     

强制责任保险与无过失保险可否兼容?——台湾的经验与大陆的教训

强制责任保险与无过失保险是机动车强制保险的两种模式,二者在保险原理、保障范围及运作机制等方面都有较大不同。与大多数强制责任保险立法不同,我国台湾地区《强制汽车责任保险法》在强制责任保险的框架内吸收了无过失保险的经验,规定了保险公司的无过失赔偿责任,并已被实践证明运行良好。然而,《道路交通安全法》第76条强制责任保险与无过失保险结合的规定却遭到了质疑。因此,有必要探讨强制责任保险与无过失保险的兼容性问题。     

论机动车交通事故责任强制保险第三者的直接求偿权

在我国,机动车交通事故责任强制保险第三者是否享有直接求偿权的争议并未因《保险法》的修订而停止,本文从合同相对性理论的突破和责任保险理论基础的变化入手,分析了赋予第三者直接求偿权的现实意义,并从法理角度论证了该项权利的性质。最后,结合各国的立法现状,对我国现行相关立法和司法实践进行评析,同时提出相应对策和应注意的问题。     

Die Mitgliedschaft EG-ausländischer Versicherungsunternehmen im Sicherungsfond der Lebens- und Krankenversicherung

The present regulation of the German guarantee funds for life and health insurance offers no possibility for insurance enterprises from other memberstates of the EC to become a member of these funds. Whereas an obligatory membership for EC-foreign insurance enterprises would violate the single-license-principle for financial supervision in the EC, community law requires a possibility to become a member of the German guarantee funds on a voluntary basis. The absence of the possibility of such a voluntary membership in the German insurance supervision law leads to an inadmissible restriction of the fundamental economic freedom rights of the common market. Therefore, the German legislator has to add the possibility of a voluntary membership to his national regulation of the guarantee funds to secure an undistorted competition on the common market for insurance in the EC.     

Grenzen zulässiger Kapitalanlagestrategien deutscher Lebensversicherer

The article focuses on two questions related to the financial supervision of German life insurers. German insurers are not allowed to invest more than 30% (35 % from Jan. 1st, 2002) of their assets covering the technical provisions in stocks. First, it has been elaborated that this fixed limitation of stock investments is inconsistent with a risk-related asset allocation. Life insurers should observe the recognitions of the capital market theory as do all other investors. Basically, fixed liabilities have to be covered safely, i. e. with bonds. Not withstanding this, fixed liabilities may be covered with stocks if the losses which may occur due to the volatility of the capital markets can be equalized through the dissolution of hidden reserves (which is a phenomenon arising from the German accounting standards). Since the hidden reserves differ from insurer to insurer the regulation of stock investments is recommended to be carried out individually. The British solution has been introduced as an example for an individual regulation of the stock / bond-ratio. Secondly, the differentiation between the German technical provisions and free assets is also partly inconsistent with a risk-related asset allocation. The free assets cover liabilities to the amount of the terminal bonus reserve, which have to be covered safely with bonds. Nevertheless, even today a with-bonus life insurance contract investing more in stocks than in bonds can be offered. In this case, fixed liabilities should be prevented by a low guaranteed interest rate and a high and variable terminal bonus.