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.     

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.     

Vom ?Alles-oder-Nichts-Prinzip“ zur Quotelung der Versicherungsleistung – Rechtsvergleichende überlegungen zur Reform des Versicherungsvertragsrechts in der Schweiz und in Deutschland

The reform of the German Insurance Contract Law (??d-VVG??) and the ongoing revision of the Swiss Insurance Contract Law (??ch-VVG??) show numerous parallels, driven by the aim of policyholder-/consumer-protection. This article is exclusively about the parallel tendency in both laws largely to abolish the ??All or nothing?? rule ??Alles-oder-Nichts-Prinzip?? (i.e., the principle according to which, the insurer is either obliged to pay the full amount insured or is fully relieved from its payment obligation) and to replace it instead with a system of the proportionate reduction of insurance benefits. The abolishment of the ??Alles-oder-Nichts-Prinzip?? affects the legal consequences of (1)??in Germany??the causation of the insured event (2)?the violation of contractual obligations, (3)?increase of the hazards and (4)??in Switzerland??the violation of pre-contractual disclosure obligations. The article will show that, despite this parallel tendency, both systems continue to have considerable differences in how they apply and will apply the proportionate reduction of insurance benefits.     

论保险法的最大诚信原则

最大诚信原则作为保险法的基本原则,占有重要地位。在保险实务的运用中,最大诚信原则主要强调保险合同当事人双方的如实告知和说明义务。尽管新修订的保险法使最大诚信原则得到了更好的体现,然而在我国因违反诚信原则而引起的保险纠纷仍屡见不鲜,这与保险法对最大诚信原则的规定不明确、不完善有着内在关系。本文就诚实信用原则在保险法中的适用进行了全面分析,并对最大诚信原则的完善等方面进行一些探讨。     

日本法上保险人说明义务制度及其启示

日本法上保险人说明义务的法律规制见于《消费者契约法》、《金融商品销售法》和《保险业法》中。日本法上保险人的说明义务制度以保险人对保险契约重要事项的说明及其违反该说明义务的法律后果为核心进行构造,并有保险人消极说明义务和积极说明义务之区分。日本法上保险人说明义务的制度设计对我国保险法上保险人说明义务规制模式的完善具有借鉴意义。     

Grundfragen zu Anzeige-, Auskunfts- und Aufklärungsobliegenheiten nach dem VVG 2008

This article analyzes the disputed legal nature of the duty to notify and the duty to disclose information according to sections 30 et seq. of the German Insurance Contract Act (VVG). To the extent to which the aforementioned legal provisions impose such obligations on a third party, the author reaches the conclusion that they are to be regarded as true legal obligations, i.e. their breach may result in damage claims. As to the policyholder, however, the legal provisions must be qualified as statutory warranties (so-called Obliegenheiten) without sanctions. Therefore, in order to sanction a policyholder’s breach of his obligations, the contracting parties have to turn the statutory Obliegenheiten into contractual Obliegenheiten, which are then subject to section 28 VVG. In the second part of the article the author addresses the scope of application and the content of the Obliegenheit to instruct the policyholder according to section 28 subsection 4 VVG. This Obliegenheit is imposed on the insurer as a requirement for the sanction of a breach of the contractual duties to provide information and to disclose by the policyholder.     

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.     

先行支付制度法理分析

从社会保险法理看,社会保险基金对第三人侵权造成的保险损害承担保险给付义务,在履行保险给付义务之后,保险人依法获得保险代位权;工伤保险基金对未缴纳保险费的单位职工工伤损害承担保险赔偿责任.我国《社会保险法》确立的先行支付制度,否定相关社会保险基金在该情形下的保险赔偿义务.这不仅冲击了社会保险法理,也违背了社会保险法的基本原则,而且给司法实践造成一定困扰.明确相关保险基金先行支付义务和求偿权的实质,是该制度正常运用的基础.     

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.     

在商法与消费者法之间寻求平衡的保险法--美国《责任保险法重述》评述与启示

《责任保险法重述》可以说是美国保险法近年来发展的总结。《重述》以被保险人与保险人之间的权利义务关系为中心展开,以亲保险人规则(Pro Insurer Rule)与亲被保险人规则(Pro Insured Rule)之间的冲突博弈为主线,在保险合同解释、不实陈述、抗辩义务、强制执行与救济等方面对规则进行了澄清。伴随着金融消费者权益保护运动的兴起,我国保险法未来发展是更偏向于消费者权益保护法还是商法,长期以来存在争议。由于美国对我国保险法的规则制定和保险业务实践均有不同程度的影响,因此,以《重述》作为我们观察的制度样本,不仅可以从规则内容上为我国保险法改革提供借鉴;而且还提供了以"美国"作为方法论,探讨《重述》经历项目性质变更,在后金融危机时代保护保险消费者利益与维护保险人商业经营之间所作的努力与妥协,为我们回答"商法"与"消费者法"之争提供参考。     

Das Anspruchserhebungsprinzip — ein Deckungskonzept in der Haftpflichtversicherung mit Zukunft?

The claims made principle is one possibility to define the trigger of an insurance contract. Until now, the question whether the claims made principle is valid pursuant to German law has never been reviewed. Sec. 149 of the German Act on Insurance Contracts acknowledges the claims made principle.Particularly for long tail risks, the claims made principle has substantial advantages compared to traditional policy concepts.     

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.     

Die aktuelle Bedeutung und Gestaltung der Vertrauensschadenversicherung – zugleich eine rechtsvergleichende Betrachtung der Fidelity Insurance in den USA

The German fidelity insurance (Vertrauensschadenversicherung) protects companies from negative impacts of white-collar crime. More specifically, the fidelity insurance is aimed to prevent companies from negative financial impacts caused by intentional breach of duty by its own employees. In some industries, in particular in the IT-business, the fidelity insurance usually also covers damages caused by third parties. Further more, fidelity insurances cover computer abuse, data abuse, and betrayal of secrets. Apart from damages in the strict sense, the fidelity insurance covers costs for appropriate it-measures, damage investigation, fees and costs of legal proceedings, and public relation costs which are necessary after damages occurred. The fidelity insurance is not specifically mentioned in – or governed by the German Insurance Contract Act (VVG). Every insurance contract is therefore in large parts subject to the parties agreements. Limitations may arise from general provisions of the VVG or the German Civil Code (BGB). The German Insurance Association (GDV) does not issue general terms regarding the fidelity insurance, as they do for other types of insurances. This leads to a large variety of standard terms of various different insurance companies. Different terms of different companies vary with regard to some central topics such as the period of coverage. Consequently, comparing different offers is very difficult and changing the insurance company may in some cases lead to the loss of coverage for certain periods of time.While the fidelity insurance is not very common in Germany, it is already a key protection measure in the USA. All insurance companies in the USA use the some standard terms and conditions (also referred to as standard forms). Regarding the period of coverage, these standard terms and conditions rely on the principle of discovery of damages (Schadenentdeckungsprinzip). Costumers benefit from these standard terms and conditions in the USA by being able to compare costs and product details. Considering selected aspects of the standard terms used in the USA can improve the spread and the acceptation of the fidelity insurance in Germany.     

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.     

Quotelung bei Obliegenheitsverletzungen: Alles,Nichts oder die Hälfte

The German Insurance Contract Act of 1908 provided that the insured person would totally loose its claim on the insurance benefit in case of gross negligence. In order to give the insured person better protection the German Insurance Contract Act of 2008 rules that the insurance benefit is only reduced proportionally to the fault of the insured person. This article broaches the issue of how to calculate the amount of reduction. The main thesis is that light and gross negligence do not differ categorically from each other. Gross negligence is rather a gradual increase of negligence. Thus, the criteria that are relevant for the determination of gross negligence also decide over the weight of negligence relevant for the amount of reduction. In case the circumstances regarding a breach of warranty cannot be clarified, it is presumed that the insured person has acted with gross negligence. In this case, the gravity of the negligence has to be determined primarily by the objective weight of the breach of warranty.     

Unterschriftenpads in der Kranken- und Lebensversicherung – Zur Vereinbarkeit der Verwendung eigenhändig unterzeichneter elektronischer Dokumente mit den Formvorschriften für den Vertragsabschluss in der Kranken- und Lebensversicherung

Insurance business is more and more based upon ecommerce and internet. But this situation causes legal problems. Insurance regulations are often based on the obligation to close contracts or to submit documents in a written form. This obligation prevents insurance business from using new modern tools like for instance PADs and tablet computers for the transmission of consumer data to the IT center of an insurance company. The following considerations deal with the use of tablet PCs and internet in life and health insurance business and tries to demonstrate that the written form required by law is not a real obstacle in insurance business.     

论保险法上的因果关系

我国保险法欠缺因果关系原则及规则,不能给保险业务和保险司法提供必要的准则。本文分析了海上保险中的近因原则、英美法系与大陆法系非海上保险的因果关系原则以及若干具体规则,主张海上保险应当继续借鉴英美法上的近因原则,非海上保险应当吸收民法中相当因果关系规则,同时保险法还应规定若干因果关系的具体规则。     

Der Kausalitätsgegenbeweis des Versicherungsnehmers

According to Section 28 para. 3 of the revised German VVG (Insurance Contract Law), a policyholder may prove that his breach of duty did not cause a disadvantage for the insurer by means of so-called causality counter-evidence. In contrast to the former provision, this possibility obtains even in case of an intentional breach. Therefore, in the future, causality counter-evidence will increase in importance—especially with regard to notice and information duties and duties to keep subjective risks to a minimum. However, the new provision does not impose an unfair burden on the insurer: if the causality counter-evidence is successful, the insurer must pay only the actual costs required under the contract. The insurer’s interest in prevention is protected insofar as the introduction of causality counter-evidence is generally precluded in case of malice.     

论产品召回保险的性质

产品召回的前提是产品存在系统性缺陷而不管该缺陷是否已经造成损害.产品召回风险是一种或有的法定义务风险,即在一定条件下才存在的法定义务.召回费用是厂商履行召回义务的费用,而非民事损害赔款.因此,产品召回不是厂商对私法责任的承担而是对公法义务的履行.产品召回保险是一种义务保险而非责任保险,其标的应为整批产品虽存在系统性缺陷...     

Beratungspflichten des Versicherers nach § 6 VVG n. F.: Grundlagen,Reichweite, Rechtsfolgen

The article deals with the requirements and the legal effects of the insurer's duty to provide advice, which has been laid down in the German Insurance Contract Code as part of its recent reform. Thus the various causes that lead to a duty to provide advice are inspected, as well as the role of the cost of such advice for its extent. Further topics include the insured's possibility to waive the right of advice, the insurer's duties after conclusion of the contract and the matter of liability, including the imputation of an insurance agent's behaviour with respect to the duties to provide advice. In the course of the article eight different theses are developed, which are presented summarily at its end.