Rechtliche Strukturen und Rahmenbedingungen der Privat- und Sozialversicherung

Private insurance and national social security insurance do not coexist unrelatedly. The constitution rather presumes a complementary co-operation of both branches of insurance. Whereas private insurance is based on the doctrine of privity of contract, national social security requires statutory legitimation. However, the principle of the bipolar insurance constitution restricts social security insurance to the effect, that it cannot expand unlimitedly at the expense of private insurance. This constitutional basis is reinforced by European Community law in Articles 49, 81 pp. EC. An essential difference between private and social security insurance is the fact that private insurance is characterized by the principle of personal equivalence between contribution and benefit payments, whereas in social security insurance this relation is determined by the principle of general equivalence. Consequently, the principle of solidarity in social security insurance is enriched by additional social components, the most dominant being the principle of social protection. Contrary to the developments of the last decades, social security systems are not designed as a legal scheme to protect a status quo of possession but should primarily serve to fight poverty. Thus, social security law should recall its absorbing function in the social network and rediscover, guarantee and realize the principle of subsidiarity in social security.     

AVB und Beratungspflichten – Markt – und Produktdisposition

Although insurers over services, they are no advisers/consultants. Nevertheless, the jurisdiction has already established an pre-contractual insurers duty to l advise insureds under the validity of the old VVG according to general civil law rules. Article 6 VVG standardizes such duties for the first time and aims to guarantee customers proper advice/consultancy particularly before the contract ends to prevent lapses in coverage. Therewith some considerable questions referring to concurrent laws concerning the law of the general terms and conditions, which aim to guarantee reliable and transparent information for customers in a quite similar way, arise. The author discusses this problem of concurrent laws and develops criteria which show which law is applicable on what occasion. As a result, a possibly contradictory pre-contractual double review is avoided.     

Deutsches und österreichisches Versicherungsvertragsrecht – Gemeinsamkeiten und Unterschiede

The codification of the German and the Austrian private insurance law started at the beginning of the 20th century. They are based on the same roots and were characterized by far-reaching conformity for a long time. This status changed when Austria joined the European Union in 1994 and the Austrian VersVG underwent a major reform. Even more so, the subsequent enactment of the German VVG 2008 contributed to the now remarkable differences between the German and the Austrian private insurance law. Nevertheless, the basics are still similar. The following article discusses both the similarities and the differences of the two codifications.     

Kartellrecht und GKV

Protagonists of the social health insurance (GKV) often consider competition law as being a disturbing factor for the realisation of the solidarity principle. As a consequence, there have taken place ideological struggles over the applicability of competition rules to health insur-ance funds for years. The paper deals with the four current main battle zones, i.?e., the general applicability of EC competition law to social health insurance funds, the relevance of Sect. 69 of the Social Security Code V (SGB V) as amended, the merger control of health insurance funds and the applicability of procurement law to contracts between health insurance funds and their health care providers. The focus is on the issue whether health insurance funds could be classified as undertakings within the meaning of competition law. The paper shows that the social health insurance and the private health insurance (PKV) converge more and more due to legal intrusions. It follows that exclusions from competition law are less and less legitimate. This is especially true for the offer of comprehensive health insurance including elective rates to voluntarily insured parties.     

Zinsrechnung und Zinsrecht

With the application of simple laws of logic to the clearly defined terms(capital) interest andinterest rate the rational dealing with interest-bearing money, the interest calculus, is derived followingLeibniz with present values, and according toEuler with future values. The procedure is determined by the equality in kind of the service rendered and the remuneration, the lending of money — a substitutable matter — as capital and the payment of money as interest for a certain time. With the addition of clear definitions of points and periods in time and of calculating with the accuracy of a day the rational dealing is a complete systems of rules compatible and coherent with other applications of mathematics and other situations in economics. It is logically simple, can easily be used with computers, and is suitable to serve as a basis for a transparent interest law, demanding and furthering clarity and truth, on a national and global level. The law claims the primacy of the rules of logic and nature over statute law, thecorpus juris, but it is not willing to base interest law on interest logic, interest calculus, it is not willing to admit the consequences of the equality in kind of capital and interest, the substitutability of money. It treats — for about the last 25 years with growing intensity —interest andinterest rate as word shells, to be filled with contents not to be subjected to matter-of-fact logic. Legal regulations, court decisions, scholarly opinions on using interest rates and calculating debts are full of contradictions to each other and in themselves. Theregula de tribus (the rule of three with linear conversion) is enforced wherever it is inappropriate. These circumstances are documented with examples from several states, with national, European and American regulations, and commented on with remarks by Leibniz, today as valid as in his time.     

Moral Hazard und Sozialversicherung — Versichertenverhalten und Versicherungsfall im Sozialversicherungsrecht

The contribution first looks into the behaviour of the insured persons and its influence on the occurrence, scope and the course of the event insured against in German social insurance. At the same time the legal provisions are investigated bringing into account such influence and providing specific reaction to it. In the following, these provisions are classified doctrinally and hence divided into five categories (rules of conduct; limitations or exclusions of risks, duties to mitigate damages, economic incentives neutral in value, and appeals free of sanctions). On the basis of a historic retrospection it is finally shown that the instruments of control for the behaviour of the insured once arranged this way can be attributed to three fundamental principles: the principle of the ethic minimum, the principle of minimum solidarity and the one of calculating an advantage.     

Naturkatastrophen und Versicherungsdeckung

Natural disasters are increasing all over the world; whether by the ever-stressed climate change or by the ever-growing mega-agglomerations where people and investments can be expected to suffer more and more damage from these catastrophes.Owing to the statistics of Swiss Reinsurance for the decade 2006 to 2015, the extent of the worldwide damage caused by natural catastrophes is visible, and likewise the small insured proportion of less than one third. By contrasting with the global gross domestic product the insurance industry covers significantly 0.063% of global GDP. The greater part of 0.157% must be borne by the injured parties themselves, if the government does not enter into a “lender of the last resort”.The following section examines the limits to which the insurance industry is subject, how it can expand the cover through risk-selection and reinsurance, and which are the natural disasters that show limits in the insurance sector.Finally, the alternative is to introduce risk transfer, where the capital market acts as a risk bearer, and to joint ventures of countries forming a kind of mutual insurance association in order to obtain more cash resources for their budgets immediately after disasters, and then to provide the necessary emergency measures.