Legal status of the insurer. Legal status of insurance organizations Legal status of insurance companies

The definition of an insurer is contained in the Civil Code of the Russian Federation and in the Law “On the Organization of Insurance Business in the Russian Federation”. In accordance with Art. 938 of the Civil Code of the Russian Federation, insurers are legal entities that enter into insurance contracts and have permits (licenses) to provide insurance of the corresponding type. According to paragraph 2 of Art. 969 of the Civil Code of the Russian Federation, state organizations are called insurers (compulsory state insurance). “Other state organizations” provide insurance without a contract (clause 2 of Article 969 of the Civil Code of the Russian Federation). However, in Art. 6 of the Law “On the Organization of Insurance Business in the Russian Federation,” the legislator speaks of any organizational and legal form for the insurer, but other provisions of this Law significantly limit the range of organizational and legal forms of legal entities in which insurance activities can be carried out. Thus, in the Civil Code of the Russian Federation the understanding of the insurer is broader than in the specified Law, and, obviously, in relation to state insurance one should be guided by this broader understanding. On the other hand, for the insurer, insurance is a business activity, since it falls within its definition contained in paragraph. 3 p. 1 art. 2 Civil Code of the Russian Federation.

Therefore, insurers must be recognized as commercial organizations and, therefore, can only be created in the organizational and legal forms provided for in paragraph 2 of Art. 50 Civil Code of the Russian Federation.

Insurers include:

insurance organizations (clause 1 of article 927 and article 938 of the Civil Code of the Russian Federation);

mutual insurance companies (clause 5 of article 938 of the Civil Code of the Russian Federation).

The concept of “insurer” also includes mutual insurance and reinsurance companies, whose essence and functions are specific and limited by law. Consequently, the concept of “insurer” is broader than the concept of “insurance company”.

You should not use the term “insurance company” in the sense of “insurance company”, since the latter is associated with a joint-stock insurance company, and the concept of “insurance company” and the concept of “joint-stock insurance company” are correlated as philosophical categories of form and content - the latter is one of forms of the first. The term “enterprise” should not be used to refer to an insurance company, since this is only a form of organization. In modern legal terminology of Western countries, an enterprise is an economic and organizational unity, which in each individual case is much more individual than a specific form of company. In foreign insurance, the definition of “insurance company” is currently used as a generally accepted concept.

Essentially, the term “company” (French compagnie) means an association of individuals or legal entities organized for the purpose of business and operating on the principles of a partnership, corporation or other forms of business organization. In other words, the insurance company is the primary link in the insurance business system. The activities of an insurance company as an institutional structure of the insurance market, as a historically determined organizational form of an insurance fund, always depend on the socio-economic environment in which it operates.

In a historical context, the term “compagnia” appears in the 11th-12th centuries. as a long-term enterprise, carrying out diversified trading activities for many years, often establishing branches in different cities. These business associations operated by creating contracts on the general principle of good faith, the belief that each partner would keep his or her promises. However, in addition to this, there was another legal principle manifested in the developing law of business associations, namely: the principle of the collective personality of the members of the association. Being founded by agreement, the company was, nevertheless, a legal entity that could have property, enter into contracts, and be the subject and object of claims. In the figurative expression of J. Charlesworth, “a company is considered by law as a person, just as a human being - Mr. Smith or Mr. Jones - it is a person.” The partners were authorized to act jointly on behalf of the company and were jointly liable for its debts.

In addition, each partner, acting separately, could create obligations for the company, and each was individually responsible for its debts. Together the partners constituted a corporation in the sense in which guilds, workshops, etc. were corporations. They were self-governing entities, communities whose identities were distinct from and tied to those of their members.

In the 12th century. Western trade law was formed, an integral part of which was the institution of “bodmery” as a means of financing and an indirect means of insuring overseas trade. At the same time, in law the individualistic Greco-Roman concept of “partnership” is being replaced by a more collectivist concept of “company”. The company as a whole had joint property, and the rights and obligations of one partner continued after the death of the other.

In the XIV century. The first marine insurance documents appeared, and in the 15th century. In France, a set of laws on marine insurance was developed, which was now used by numerous insurance companies. These are the historical origins of the practice and theory of development of foreign insurance companies.

Currently in the West, the generally accepted definition of an insurance company is the definition relating to private (non-state) insurance. Thus, an insurance company is “an organization acting as an insurer, i.e. which assumes the obligation to compensate the insured for losses upon the occurrence of an insured event”108.

In Russia, the first insurance organizations appeared in the 20th century. in the form of joint stock companies, mutual insurance companies and others. By the Decree of November 20, 1918, the insurance companies operating in Russia were liquidated, and all their assets were declared the property of the state." In 1920, an attempt was made to replace insurance with free state assistance (Decree of December 18, 1920), which did not lead to positive result. The Decree of October 6, 1921 established a state monopoly on insurance.

The Civil Code of the Russian Federation has priority in regulating the legal status of Russian insurance companies, which is practically expressed in the fact that if the rules of law contained in any other normative act conflict with the provisions of the Civil Code of the Russian Federation, the norms of the Civil Code of the Russian Federation must be applied. A number of problems in this regard were resolved thanks to the Decree of the Government of the Russian Federation dated October 1, 1998 No. 1139 “On the Main Directions for the Development of the National Insurance System in the Russian Federation in 1998-2000”, as well as the Decree of the Government of the Russian Federation dated October 2, 2002 No. 1361-r on the adoption of the “Concept for the development of insurance in the Russian Federation”.

Russian legislation establishes the legal capacity of an insurance company, which is closely related to civil liability. Civil Code of the Russian Federation in Art. 49 determined the legal capacity of an insurance company that conducts statutory activities.

The main features characteristic of an insurance company as a legal entity:

Technical and organizational unity, which ensures the action of a group of individuals as a single whole, the formation of a single will, which is expressed in the charter of the insurance company, contract, law, administrative act.

Independent property liability, since the insurance company operates in the economic system as an independently operating entity and is responsible for its obligations with its insurance resources. At the same time, economically isolated insurance companies build their relationships with other insurers on the basis of reinsurance and coinsurance."

3. The presence of the name of the insurance company as its own name, different from the name of other objects of rights and necessary for its identification in civil circulation.

It should be noted the dual legal nature of the insurance company: on the one hand, the insurance company has all the characteristics of a legal entity, on the other hand, it acts in its economic activities with specific functions inherent only to the insurance company as an economic entity. In the latter case, insurance companies are included in the subject structure of economic (entrepreneurial), financial, and trade law.

In modern insurance literature there is no single view on the issue of the subject composition of which law includes insurance companies. They are classified as subjects of civil, administrative, commercial, and financial law or, conversely, tied to any one of them.

Thus, the concept of “insurance companies” should be recognized as a collective, generalizing, generic definition, the use of which for any insurance organization is both legitimate and necessary.

There are two aspects of the definition, a narrow and an expanded interpretation. In the first meaning, an insurance company is a legally registered designation of an organization as a legal entity specializing in the insurance business. In a broad sense, the concept of “insurance company”, in addition to legal content, is filled with economic and organizational-legal content. In foreign legislation, a company is an economically independent economic entity that uses the organizational and legal form of entrepreneurial activity permitted by the civil law of a particular country.

Thus, an insurance company is a historically defined form of insurance activity, an organization that has a specific organizational and legal form, carries out the functions of insurance protection and functions in the general state socio-economic system as an independent legal entity and economic entity.

The set of insurance companies operating in a certain socio-economic environment forms an insurance system. In a market-type economy, the main task of the insurance system is to provide a full range of insurance services that provide guarantees to companies in the uninterrupted working cycle, and to clients - reliable insurance services. In world practice, it is customary to classify the insurance system, but the essential principles, features and criteria of this classification have not yet been developed. With regard to the Russian insurance system, this problem is at the stage of preliminary study and is still very far from being finally resolved. In the economic and legal insurance literature, there are different approaches to the classification of insurance companies: on the one hand, according to economic criteria, on the other, according to organizational and legal criteria. There is a wide range of opinions in the attempts to define types and subtypes, types and varieties of insurance organizations in the works of: A. Andreeva, T.G. Alexandrova and O.V. Meshcheryakova; V.B. Gomelya, S.L. Efimova, M.V. Zharova, L.M. Reitman, E.A. Utkina, D.S. Karponosov and others. At the same time, economists proceed from the development of the industry classification of the insurance institute, which cannot be considered complete in the context of the emergence of more and more new insurance industries during the period of rapid development of market relations in our country. Legal scholars do not offer a clear classification of insurance companies, since all discrepancies in the field of general definitions of types of legal entities have not yet been fully overcome, and the basis for the classification of legal entities varies greatly."2 At the same time, the authors rightly note that the Civil Code of the Russian Federation does not clearly distinguish between commercial and non-profit organizations, and in the federal law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” there are some discrepancies with the Civil Code of the Russian Federation.

Thus, all these new trends in the rapidly developing insurance business in the last decade will inevitably affect the evolution of the types of Russian insurance companies and introduce something new into the classification.

The subjects of the insurance relationship are the policyholder and the insurer. They are also parties to the insurance contract.

The insurer is the subject of the insurance relationship, which, for a fee in the form of an insurance premium, is obliged to provide insurance protection to the interests of the insured (the insured person) acting as the object of insurance, which in a material sense is expressed in the implementation, upon the occurrence of an insured event, of an insurance payment to the person in whose favor the insurance is made.

According to the Civil Code of the Russian Federation, insurance contracts can be concluded as insurers by legal entities that have permission (license) to carry out insurance of the corresponding type. The requirements that insurance organizations must meet, the procedure for licensing their activities and the implementation of state supervision over these activities are determined by the laws on insurance (Article 938 of the Civil Code). Currently, the main such law is the Law on the Organization of Insurance Business. Article 6 of this Law gives the following definition of insurers: “Insurers are legal entities created in accordance with the legislation of the Russian Federation to carry out insurance, reinsurance, mutual insurance and received licenses in the manner prescribed by this Law.” From this definition it follows that only a legal entity can be an insurer. Carrying out insurance activities by citizens as entrepreneurs without forming a legal entity is not permitted.

From the above definition given by the Law on the Organization of Insurance Business, it follows that an insurer can only be a legal entity that is created to carry out insurance, reinsurance or mutual insurance and is registered in this capacity. Finally, since insurance activity is a licensed type of activity, an organization claiming to carry out the functions of an insurer must have a license to carry out insurance activities in the form of insurance, reinsurance, and mutual insurance. Therefore, the insurer must have the following organizational characteristics:

1) be a legal entity;

2) be an organization specially created for the provision of insurance, reinsurance, mutual insurance, i.e. have the form of an insurance organization or mutual insurance company. This circumstance must be recorded in the constituent documents of this organization. By the way, reinsurance and mutual insurance are just forms of insurance. In other words, in the above definition, the particular is placed in the same classification series with the general, of which it is a part, and this is a violation of the laws of logic;

3) be registered as an insurance organization (mutual insurance company) on the territory of the Russian Federation and in accordance with the legislation of the Russian Federation;

4) have a license for the right to carry out insurance activities, issued by an authorized government body of the Russian Federation Aliev B.Kh., Makhdieva Yu.M. Insurance. M., 2011. P. 82..

The Law on the Organization of Insurance Business determines the range of activities of the insurer.

It is provided that insurers assess the insurance risk, receive insurance premiums (insurance contributions), form insurance reserves, invest assets, determine the amount of loss or damage, make insurance payments, and carry out other actions related to the fulfillment of obligations under the insurance contract (clause 2 of Art. 6 of the Law).

It is characteristic that in this case both those actions of the insurer that arise from the insurance contract and those that usually lie outside the scope of this contract are listed. The first (contractual) include assessing the insurance risk, receiving insurance premiums, determining the amount of loss or damage, and making an insurance payment. The second, not directly provided for by the insurance contract, includes the formation of insurance reserves and investment of assets. The implementation of these actions is not a contractual obligation of the insurer, and the implementation of these actions is not provided for by the insurance contract itself. However, it is quite obvious that these actions are aimed at ensuring the fulfillment of their contractual obligations. It follows from this that the range of responsibilities of an insurance organization as a legal entity is wider than the range of responsibilities of the insurer as a party to an insurance contract.

The Law on the Organization of Insurance Business establishes a certain specialization of insurance organizations. There are two types of insurers:

1) engaged only in personal insurance (life insurance, accident and illness insurance, medical insurance);

2) engaged in property insurance, as well as those personal insurance that relates to risk types of insurance (accident and illness insurance, medical insurance).

As we see, the specialization of insurance organizations is relative. Thus, risk personal insurance (insurance against accidents and illnesses, medical insurance) can be provided by insurers of both the first and second categories. At the same time, the insurance organization that deals exclusively with personal insurance does not have the right to deal with any type of property insurance.

The establishment of specialization of insurance organizations is dictated not only by the desire to improve the quality of insurance services, but also by protecting the interests of policyholders.

This is especially true for life insurance, where the stage of payment of insurance payments lasts, as a rule, for a fairly long period (for example, when insuring an annuity or an additional pension, it can reach several decades). The period for making insurance payments can also be long (up to several decades). All this requires not only the long-term existence of the insurance organization itself, but also the long-term preservation of insurance reserves, the presence of which would ensure the uninterrupted implementation of insurance payments.

The state strives to prevent the existence of insurance organizations based on the principle of a “financial pyramid”, which, having collected insurance premiums from citizens, then disappear to God knows where or innocently declare themselves bankrupt.

It should be noted that the question of whether an insurance organization can carry out any other activities other than insurance itself is one of the most controversial issues in organizing the insurance business. The sword here, as they say, is double-edged: engaging an insurance organization in other activities (for example, production or trade intermediary) will allow it to acquire additional capital, which will undoubtedly strengthen its financial stability as an insurer.

But, on the other hand, engaging in entrepreneurial activity puts this very stability at risk, since the insurer’s commercial adventures can lead to its ruin, and therefore to the impossibility of fulfilling its obligations under concluded insurance contracts.

A ban on carrying out activities other than insurance certainly reduces the risk of using insurance reserves for purposes other than insurance itself, and thereby protects the policyholder. But at the same time, such a ban limits the insurer’s ability to expand its own financial base, which ultimately acts as a material guarantee to ensure that this insurer fulfills its insurance obligations.

Uncertainty in the nature of the legal capacity of an insurance organization has increased due to the fact that in the new edition of the Law on the Organization of Insurance Business, the instruction prohibiting insurers from carrying out production, trading, intermediary and banking activities was generally removed.

The introduction of specialization of insurance organizations also requires an analysis of the nature of their legal capacity Sokol P.V. Features of participation of insurers in compulsory civil liability insurance in professional associations // Laws of Russia: experience, analysis, practice. 2011. N 3. P. 59..

We believe that the phrase “created to carry out insurance, reinsurance, mutual insurance” contained in the definition of an insurer entails a ban on insurance organizations from carrying out business activities other than insurance as their main type of occupation.

At the same time, this does not limit the right of insurance organizations to carry out transactions aimed at maintaining their activities related to the implementation of insurance (renting residential premises, acquiring property necessary to ensure insurance activities, carrying out advertising activities, etc.).

Finally, as part of providing insurance activities, insurers can place funds from their insurance reserves, which does not exclude elements of entrepreneurship (for example, the acquisition of securities in order to generate additional income, the sale of property in which the insurance fund funds were invested in order to ensure the fulfillment of their obligations ).

Insurers can issue and place their securities. They may also engage in lending where permitted by law.

All this gives insurance organizations an additional source of income, which strengthens their financial position as an insurer. It should be noted that in developed countries, insurance organizations have surpassed even banks in their investment opportunities. Moreover, a situation has developed where insurance itself becomes an unprofitable activity for such organizations - they receive their main income through investments, as well as credit operations.

In this regard, it seems that the restrictions on lending established for insurance organizations, provided for by Russian legislation, are economically unjustified. When lending at the expense of one's own profits (and not at the expense of insurance reserves), there are no sufficient grounds for prohibiting such lending.

Ultimately, we believe that the legal capacity of insurance organizations, although not a special legal capacity, is still limited in terms of the prohibition on carrying out business activities other than insurance, as well as the need to comply with their specialization within the framework of the insurance activity itself.

Neither the Law on the Organization of Insurance Business, nor the Civil Code stipulate in what organizational and legal form insurance organizations should be created. This means that insurance organizations can be created in any organizational and legal form provided for by the legislation of the Russian Federation.

But at the same time, it should be borne in mind that, as a rule, insurance relates to entrepreneurial activity, since it is associated with the conclusion and execution of insurance contracts, the receipt by insurers of payment for insurance in the form of insurance premiums, which form the income of the insurance organization, which is a source of profit. . This determines the choice for an insurance organization of such an organizational and legal form that belongs to the category of “commercial organization” by Gomel V.B. Insurance. M., 2011. P. 122..

6. Concept and characteristics of entrepreneurial activity. Forms and types of entrepreneurial activity.

7. State regulation of business activities.

8. State forecasting and planning of socio-economic development of the Russian Federation.

9. State control (supervision) in the field of entrepreneurial activity.

10. Concept and types of business entities.

11. Citizens as subjects of entrepreneurial activity. The procedure for registering business activities without forming a legal entity and the grounds for its termination.

12. Legal entities as business entities, their types and classifications.

13. Methods and stages of creating commercial organizations.

14. State registration of commercial organizations.

15. Licensing of business activities: concept, principles, licensing legislation, subjects of licensing relations, licensing requirements and conditions.

16. The concept of a license. Procedure for receipt, suspension, cancellation.

17. Legal status of structural divisions of legal entities.

18. The concept of a body of a legal entity; structure of organs and delimitation of competence. Responsibility.

19. Concept, types and procedure for reorganization of a legal entity.

20. Concept, types and procedure for liquidation of a legal entity.

22. Consideration of bankruptcy cases. The right to apply to an arbitration court. The right and obligation of the debtor to submit the debtor’s application to the arbitration court.

23. The concept of a debtor for the purposes of the Insolvency (Bankruptcy) Law. Concept, types, legal status of creditors. The meeting and committee of creditors, the procedure for their formation and competence.

24. Concept and types of arbitration managers. Mandatory conditions for membership in the self-regulatory organization, requirements for the candidacy of an arbitration manager. Rights and obligations, responsibility of the arbitration manager.

25. Observation as a procedure used in bankruptcy cases.

26. Financial recovery as a procedure applied in a bankruptcy case.

27. External management as a procedure applied in bankruptcy cases.

28. Bankruptcy proceedings as a procedure used in bankruptcy cases.

29. Settlement agreement as a procedure applied in a bankruptcy case.

30. Simplified procedures applied in bankruptcy cases.

31. Features of bankruptcy of individual entrepreneurs.

32. Business partnerships as business entities.

33. Joint-stock companies as business entities.

34. Production cooperatives as business entities.

35. State and municipal unitary enterprises as business entities.

36. Non-profit organizations as business entities.

37. Features of the legal status of banks and other credit organizations.

38. Legal status of exchanges.

39. Limited liability companies as business entities.

40. Legal status of insurance organizations.

41. Legal status of a joint-stock investment fund.

42. Mutual investment fund: concept, types. Origin and termination, management of mutual investment fund.

43. Legal status of subsidiaries and dependent business companies, holding companies.

44. Small and medium-sized businesses: inclusion criteria, state support.

45. Concept and types of property of business entities.

46. The concept of an organization's accounting policy.

47. Legal regime of the organization’s fixed assets.

48. Legal regime of the organization’s current assets.

49. Legal regime of intangible assets of the organization.

50. Legal regime of authorized (share) capital (fund).

51. Concept and types of funds of an organization. Rules for storage, accounting and use of cash.

52. Legal regime of shares. Procedure for issuing and selling shares. Controlling stake.

53. Legal regime of profit of a commercial organization.

54. The concept, content and limits of exercising the right of economic management and operational management of a unitary enterprise.

55. Foreclosing on the property of an organization (individual entrepreneur): grounds, stages, priority.

56. The concept of privatization of state and municipal property. Legislation on privatization. Types of privatization objects. Characteristics of the subjects of the privatization process.

57. Stages and methods of privatization of state and municipal property.

58. Concept and scope of application of antimonopoly legislation. Participants in relations regulated by antimonopoly legislation.

59. State antimonopoly body, its functions and powers.

60. Control of the antimonopoly authority over economic concentration.

63. Responsibility for violation of antimonopoly legislation.

64. Natural monopolies: concept, types. Legislation on natural monopolies. Implementation of state regulation and control in the areas of natural monopolies.

65. The concept of competition, the concept and forms of unfair competition.

66. The concept and procedure for providing state and municipal preferences in accordance with antimonopoly legislation.

67. Concept and principles of technical regulation. Legislation on technical regulation.

68. Technical regulations: concept, goals, content and application.

69. Concept, goals, principles of standardization. Documents in the field of standardization.

70. Confirmation of conformity: goals, principles, forms.

71. State control (supervision) over compliance with the requirements of technical regulations.

72. Responsibility for violation of legislation on technical regulation.

73. Concept and types of prices. State regulation of the establishment and application of prices for goods, works and services. Legal means of ensuring state price discipline.

74. Entrepreneurial agreement: concept, features, functions.

75. Features of concluding a business agreement.

76. Conclusion of an agreement at an auction.

40. Legal status of insurance organizations.

Insurance is a relationship to protect the interests of individuals and legal entities, the Russian Federation, constituent entities of the Russian Federation and municipalities in the event of certain insured events at the expense of funds formed by insurers from paid insurance premiums (insurance contributions), as well as at the expense of other funds of insurers.

Insurance activity (insurance business) is the field of activity of insurers in insurance, reinsurance, mutual insurance, as well as insurance brokers, insurance actuaries in the provision of services related to insurance and reinsurance.

Insurers are legal entities created to carry out insurance, reinsurance, mutual insurance and received licenses in the manner prescribed by law.

Insurance business entities, in order to coordinate their activities, represent and protect the common interests of their members, can form unions, associations and other associations.

Insurers assess insurance risk, receive insurance premiums, form insurance reserves, invest assets, determine the amount of losses or damage, make insurance payments, and carry out other actions related to the fulfillment of obligations under the insurance contract.

Insurance agents are individuals or legal entities permanently residing in the territory of the Russian Federation and carrying out their activities on the basis of a civil law contract, who represent the insurer in relations with the policyholder and act on behalf of the insurer and on his behalf in accordance with the powers granted.

Insurance brokers are individuals or legal entities permanently residing in the territory of the Russian Federation and registered in the prescribed manner as individual entrepreneurs who act in the interests of the policyholder or insurer and carry out activities to provide services related to the conclusion of insurance contracts between the insurer and the policyholder, as well as with execution of these contracts.

Insurers (with the exception of mutual insurance companies) must have fully paid-up authorized capital.

The minimum amount of the insurer's authorized capital is determined on the basis of the basic size of its authorized capital, equal to 30 million rubles.

Groups of insurers:

2) insurance organizations (engaged in insurance on a professional basis and services are provided to third parties (policyholder, insured person); can be established both in the form of commercial and non-profit organizations)

1) mutual insurance societies (created by legal entities and individuals on the basis of membership for insurance protection, property protection of members of this society; form - non-profit organization).

Licensing of the activities of insurance business entities is carried out on the basis of their applications and documents.

A license to carry out insurance, reinsurance, mutual insurance, and insurance brokerage activities (hereinafter also referred to as a license) is issued to subjects of the insurance business.

The right to carry out activities in the field of insurance is granted only to an insurance entity that has received a license.

To obtain a license to carry out voluntary and (or) compulsory insurance, the license applicant submits to the insurance supervisory authority:

1) application for a license;

2) constituent documents of the license applicant;

3) a document on state registration of the license applicant as a legal entity;

4) minutes of the meeting of founders on approval of the constituent documents of the license applicant and approval for the position of the sole executive body, head of the collegial executive body of the license applicant;

5) information on the composition of shareholders (participants);

6) documents confirming payment of the authorized capital in full;

7) documents on state registration of legal entities that are founders of an insurance business entity, an audit report on the reliability of their financial statements for the last reporting period, if a mandatory audit is provided for such entities;

8) information about the sole executive body, the head(s) of the collegial executive body, the chief accountant, the head of the audit commission (auditor) of the license applicant;

9) information about the insurance actuary;

10) insurance rules for types of insurance provided for by this Law, with attached samples of documents used;

11) calculations of insurance rates with the application of the actuarial calculation methodology used and an indication of the source of initial data, as well as the structure of tariff rates;

12) regulations on the formation of insurance reserves;

13) economic justification for the implementation of types of insurance.

Insurers Legal entities of any organizational and legal form provided for by the legislation of the Russian Federation are recognized, created to carry out insurance activities (insurance organizations and mutual insurance societies) and who have received, in the prescribed manner, a license to carry out insurance activities on the territory of the Russian Federation.

Insurers have the right to carry out either only insurance of personal insurance objects, or only insurance of property and personal insurance objects.

Insurers may carry out insurance activities through insurance agents and insurance brokers.

Insurance agents - individuals or Russian legal entities (commercial organizations) permanently residing in the territory of the Russian Federation and carrying out their activities on the basis of a civil contract, who represent the insurer in relations with the policyholder and act on behalf of the insurer and on his behalf in accordance with the powers granted.

Insurance brokers - individuals or Russian legal entities (commercial organizations) permanently residing on the territory of the Russian Federation and registered in the manner established by the legislation of the Russian Federation as individual entrepreneurs, who act in the interests of the policyholder (reinsurer) or insurer (reinsurer) and carry out activities to provide services related to concluding insurance (reinsurance) agreements between the insurer (reinsurer) and the policyholder (reinsurer), as well as with the execution of these agreements (hereinafter referred to as the provision of insurance brokerage services). When providing services related to the conclusion of these contracts, the insurance broker does not have the right to simultaneously act in the interests of the policyholder and the insurer.

Insurance brokers have the right to carry out other activities related to insurance, not prohibited by law, with the exception of activities as an insurance agent, insurer, or reinsurer. Insurance brokers are not entitled to carry out any activities not related to insurance.

Insurers may form unions, associations and other associations to coordinate their activities, protect the interests of their members and implement joint programs, if their creation does not contradict the requirements of the legislation of the Russian Federation. These associations do not have the right to directly engage in insurance activities.

Associations of insurers operate on the basis of charters and acquire the rights of legal entities after state registration in accordance with the Federal Law of August 8, 2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”.

Coinsurance - insurance of the same insurance object by several insurers under one insurance contract.

Reinsurance - activities to protect by one insurer (reinsurer) the property interests of another insurer (reinsurer) related to the insurance payment obligations assumed by the latter under the insurance agreement (main agreement).

Reinsurance is carried out on the basis of a reinsurance agreement concluded between the insurer and the reinsurer in accordance with the requirements of civil law.

The basis for the financial stability of insurers is: economically sound insurance rates; insurance reserves sufficient to fulfill obligations under insurance, coinsurance, reinsurance, mutual insurance contracts; own funds; reinsurance.

Insurance reserves and the insurer's own funds must be provided with assets that meet the requirements of diversification, liquidity, repayment and profitability.

Insurers must have a fully paid-up authorized capital, the amount of which must not be lower than the minimum amount of authorized capital established by this Law. The minimum amount of the authorized capital of the insurer is determined on the basis of the basic size of its authorized capital, equal to 30 million rubles, and the following coefficients:

1 - for insurance against accidents and illnesses, medical insurance, property insurance, civil liability insurance, business risk insurance;
2 - for insurance of any personal insurance items, including life insurance;
4 - for the implementation of reinsurance, as well as insurance in combination with reinsurance.

To ensure the fulfillment of accepted insurance obligations, insurers, in the manner and under the conditions established by the legislation of the Russian Federation, form from the received insurance premiums the insurance reserves necessary for upcoming insurance payments for personal and property insurance. Insurance reserves formed by insurers are not subject to withdrawal to the federal and other budgets.

An insurance organization has the right to form a preventive measures fund in order to finance measures to prevent the occurrence of insured events.

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Pequal status of insurance companies

INTRODUCTION

1. CONCEPT AND LEGAL PERSONALITY OF AN INSURANCE COMPANY

1.1. Concepts of insurer, insurance organization, insurance company, their evolution

1.2. Legal personality of insurance companies

2. ELEMENTS OF THE LEGAL STATUS OF INSURANCE COMPANIES

2.1. Rights of insurance companies

2.2. Main responsibilities of insurance companies

2.3. Liability of insurance companies

CONCLUSION

LIST OF SOURCES USED

INCONTROL

The relevance of the study is determined by the growing role of insurance as the main tool (means) for reducing the degree of risk in a market economy. In general, insurance is a type of activity in which citizens, organizations, and public entities can protect themselves in advance from the occurrence of adverse consequences in the area of their property interests and personal intangible benefits by making monetary contributions to a special fund of a specialized organization (insurer) that provides insurance services. , and this organization, upon the occurrence of agreed upon events and the occurrence of adverse consequences, pays from the funds of this fund to the insured or other person the amount stipulated by the agreement.

In modern conditions, when the risk of becoming a victim of a terrorist attack, or becoming bankrupt as a result of the economic crisis, or unfair actions of competitors, increases significantly, therefore, an increasing number of organizations, entrepreneurs, and citizens turn to insurance organizations in order to protect themselves to some extent, in case of adverse consequences. As a result, the insurance sector of the economy is constantly expanding, and more and more different insurance companies are entering it. The dynamic development of insurance in modern Russia is associated with the development of commercial insurance and, above all, property insurance. Thus, along with previously used types of property insurance, such types of insurance as business risk insurance and civil liability insurance are being developed and improved.

In parallel with the development of various types of insurance services, insurance legislation is also being improved. The Insurance Institute is in its infancy. The Russian insurance market is actively developing, but its development in some cases is limited by the imperfection of the legal regulation of insurance relations. The presence of gaps and contradictions between different regulations require a systematic study of insurance law in general, and the legal status of insurance companies in particular. Since the legal status of insurance companies directly determines their ability to fulfill the obligations assigned to them by law, and in case of non-compliance, bear responsibility.

Based on the foregoing, we can confidently say that the development of insurance in general, and issues of the legal status of insurance companies in particular, is one of the most pressing topics in legal doctrine today.

An analysis of the legal literature presented in the bibliography shows that the problem of the legal status of insurance companies is the subject of close attention of well-known Russian scientists: the issues of this problem have been analyzed in scientific publications and educational literature. But despite the undoubted significance of the research conducted at different times on this topic, at the same time it seems that they have not exhausted the entire range of issues that require resolution in this area. In this regard, the author, based on the studied material presented in the bibliography, examines the current state of problems of legal regulation of insurance in the Russian Federation.

The listed circumstances determined the relevance of the work, the object and subject of the study, and the setting of the corresponding goals and objectives.

The object of study is the social relations arising in the insurance industry.

The subject of the study is formed by the norms of the current legislation regulating the legal status of insurance companies, legal and other literature related to the problem being analyzed.

primary goal The study consists in a general description of the legal status of insurance companies.

Give the concept of insurer, insurance organization, insurance company

Consider issues related to the legal personality of insurance companies

Learn the basic rights and responsibilities of insurance companies

Explore the specifics of their responsibilities.

1. CONCEPTAND LEGAL PERSONALITY OF THE INSURANCE COMPANY

1. 1. Concepts of insurer, insurance organization, insurance company, their evolution

The definition of an insurer is contained in the Civil Code of the Russian Federation and in the Law “On the organization of insurance business in the Russian Federation” (hereinafter referred to as the Law of the Russian Federation No. 4015-1) Law of the Russian Federation of November 27, 1992 N 4015-1 (as amended on May 17, 2007) “On the organization of insurance affairs in the Russian Federation” // Gazette of the SND and the Armed Forces of the Russian Federation, 01/14/1993, No. 2, art. 56. . In accordance with Art. 938 of the Civil Code of the Russian Federation, insurers are legal entities that enter into insurance contracts and have permits (licenses) to provide insurance of the corresponding type.

An insurance organization as a legal entity will be created from the moment of state registration in the manner established by Federal Law of August 8, 2001 N 129-FZ “On state registration of legal entities, individual entrepreneurs” Collection of legislation of the Russian Federation", 08/13/2001, N 33 (part I), art. 3431.

Neither the Civil Code of the Russian Federation nor the Insurance Law contain a direct indication of the organizational and legal form in which an insurance company should be created and whether it belongs to a commercial or non-profit organization. Based on the main purpose of most insurance companies, which is to make a profit from insurance activities, we can conclude that most often this is a commercial organization.

According to paragraph 2 of Art. 969 of the Civil Code of the Russian Federation, state organizations are called insurers (compulsory state insurance). “Other state organizations” provide insurance without a contract (clause 2 of Article 969 of the Civil Code of the Russian Federation). However, in Art. 6 of Law No. 4015-1, the legislator speaks of any organizational and legal form for the insurer, but other provisions of this Law significantly limit the range of organizational and legal forms of legal entities in which insurance activities can be carried out. Thus, in the Civil Code of the Russian Federation the understanding of the insurer is broader than in the specified Law, and, obviously, in relation to state insurance one should be guided by this broader understanding. On the other hand, for the insurer, insurance is a business activity, since it falls within its definition contained in paragraph. 3 p. 1 art. 2 Civil Code of the Russian Federation.

Insurers include:

1) insurance organizations (clause 1 of Article 927 and Article 938 of the Civil Code of the Russian Federation);

2) mutual insurance companies (clause 5 of Article 968 of the Civil Code of the Russian Federation). The term “insurance organization” can be considered adequate to the term “insurance company”. This is a generally accepted replacement, and it is quite possible to use them to refer to the same phenomenon.

You should not use the term “insurance company” in the sense of “insurance company”, since the latter is associated with a joint-stock insurance company, and the concept of “insurance company” and the concept of “joint-stock insurance company” are correlated as philosophical categories of form and content - the latter is one of the forms first. The term “enterprise” should not be used to refer to an insurance company, since this is only a form of organization. In modern legal terminology of Western countries, an enterprise is an economic and organizational unity, which in each individual case is much more individual than a specific form of company. In foreign insurance, the definition of “insurance company” is currently used as a generally accepted concept.

In a historical context, the term "compagnia" appears in the 11th - 12th centuries. as a long-term enterprise, carrying out diversified trading activities for many years, often establishing branches in different cities. These business associations operated by creating contracts on the general principle of good faith, the belief that each partner would keep his or her promises. However, in addition to this, there was another legal principle manifested in the developing law of business associations, namely the principle of the collective personality of the members of the association. Although founded by agreement, the company was nevertheless a legal entity that could have property, enter into contracts, and be the subject and object of claims. In the figurative expression of J. Charlesworth, “a company is considered by law as a person, just as a human being - Mr. Smith or Mr. Jones - it is a person.” The partners were authorized to act jointly on behalf of the company and were jointly liable for its debts.

Currently in the West, the generally accepted definition of an insurance company is the definition relating to private (non-state) insurance. Thus, an insurance company is “an organization acting as an insurer, i.e. accepting the obligation to compensate the insured for losses upon the occurrence of an insured event" Market Encyclopedia: Multi-volume five-language dictionary-reference book / Ed. E.V. Baidina et al. T. 1. M., 1994. P. 372. .

In Russia, the first insurance organizations appeared in the 20th century. in the form of joint-stock companies, mutual insurance companies and others. Consideration of the multi-subject insurance system in Russia, which had developed by 1914, and its subsequent development, as well as the development of insurance legislation in Russia, has been sufficiently studied in the insurance literature (see: Alenichev V.V. Insurance legislation of Russia in historical legal research. M., 1998. P. 17). . By decree of November 20, 1918, insurance companies operating in Russia were liquidated, and all their assets were declared the property of the state. In 1920, an attempt was made to replace insurance with free state assistance (Decree of December 18, 1920), which did not lead to a positive result. The decree of October 6, 1921 established a state monopoly on insurance.

Insurance companies, along with Gosstrakh, appeared in our country in the late 80s. last century and were created in the form of cooperatives. Legislative consolidation and regulation of the activities of insurance companies appeared in 1992 in the Law of the Russian Federation “On Insurance”. The Law of the Russian Federation “On Insurance” N 4015-1 was adopted in its original version on October 27, 1992. In accordance with the Federal Law of December 31, 1997. N 157-FZ Law “On Insurance” is called the Law of the Russian Federation “On the organization of insurance business in the Russian Federation”. . Currently, the legal status of insurance companies is determined at the level of state regulation by the norms of the Civil Code of the Russian Federation and the Law of the Russian Federation “On the organization of insurance business in the Russian Federation.”

The Civil Code of the Russian Federation has priority in regulating the legal status of Russian insurance companies, which is practically expressed in the fact that if the rules of law contained in any other normative act conflict with the provisions of the Civil Code of the Russian Federation, the norms of the Civil Code of the Russian Federation must be applied. A number of problems in this regard were resolved thanks to the Decree of the Government of the Russian Federation of October 1, 1998 N 1139 “On the main directions of development of the national insurance system in the Russian Federation in 1998 - 2000” Collection of legislation of the Russian Federation", 05.10.1998, N 40, art. 4968.

The main features characteristic of an insurance company as a legal entity:

1. Technical and organizational unity, which ensures the action of a group of persons as a single whole, the formation of a single will, which is expressed in the charter of the insurance company, contract, law, administrative act.

2. Independent property liability, since the insurance company operates in the economic system as an independently operating entity and is responsible for its obligations with its insurance resources. At the same time, economically isolated insurance companies build their relationships with other insurers on the basis of reinsurance and coinsurance Shakirov T.S. Insurance and problems of its implementation in the system of the Ministry of Internal Affairs of Russia. Author's abstract. dis. ...cand. legal Sci. M., 1997. P. 15. Special functions of reinsurance and coinsurance are carried out by mutual reinsurance companies. .

3. The presence of the name of the insurance company as its own name, different from the name of other objects of rights and necessary for its identification in civil circulation.

The set of insurance companies operating in a certain socio-economic environment forms an insurance system. In a market-type economy, the main task of the insurance system is to provide a full range of insurance services that provide guarantees to companies in the uninterrupted working cycle, and to clients - reliable insurance services. In world practice, it is customary to classify the insurance system, but the essential principles, features and criteria of this classification have not yet been developed. With regard to the Russian insurance system, this problem is at the stage of preliminary study and is still very far from being finally resolved. In the economic and legal insurance literature, there are different approaches to the classification of insurance companies: on the one hand, according to economic criteria, on the other, according to organizational and legal criteria. There is a wide range of opinions in attempts to define types and subtypes, types and varieties of insurance organizations. At the same time, economists proceed from the development of the industry classification of the insurance institute, which cannot be considered complete in the context of the emergence of more and more new insurance industries during the period of rapid development of market relations in our country. Legal scholars do not offer a clear classification of insurance companies, since all discrepancies in the field of general definitions of types of legal entities have not yet been fully overcome, and the basis for the classification of legal entities varies greatly. Civil law of Russia: Course of lectures. Part 1 / Ed. HE. Sadikov. M., 1996. S. 61, 62; Civil law: Textbook. / Ed. A.P. Sergeeva, Yu.K. Tolstoy. Ed. 2nd. M.: Prospekt, 1997. pp. 132 - 168. .

Currently, the evolution of types of insurance companies is quite dynamic, because the most optimal forms of insurance activity are being determined as the situation in the Russian insurance market becomes more complex. In order to attract an increasing number of policyholders, insurance companies of the Russian Federation are modernizing traditional types of insurance and introducing new ones. The content of the activities of insurance companies is now increasingly determined by internal economic conditions, political risks, environmental pollution, etc., therefore, capital-intensive foreign economic transactions began to be serviced by the largest insurance companies (for example, Ingosstrakh, Rosno, Soglasie, “Max”, etc.) See: Shakhov V.V. Some results and prospects for the development of the insurance market in Russia // Finance. 1997. N 3. P. 43. . Nowadays, insurance unions and associations are gaining strength, which play a coordinating and leadership role and whose activities are carried out on the basis of charters. These are such alliances, such as, for example, the merger in 2001 of the insurance company Reko-Garantiya and MDM Bank; “Vesta” (East European Insurance Agency) and “Alfa Group”, “Inter-industry Insurance Center”, etc. (Letkov R. Alliances-bundles // Expert. 2001. N 34; Panorama of Insurance. P. 115 - 124; 120). .

1. 2. Legal personality of insurance companies

The main role in considering the question of what constitutes legal personality in general and the legal personality of insurance companies in particular belongs to civil scientists.

Initially, legal personality was identified with legal capacity. In the second half of the 50s. In the last century, a theory emerged that composed legal personality from two elements: legal capacity and legal capacity.

R.O. Halfina identifies three elements of legal personality: legal capacity, capacity and competence of Halfina R.O. General doctrine of legal relations. M.: Legal. lit., 1974. P. 126. . The following definition is more accurate: legal personality is the ability of a subject, recognized and ensured by the state, to have subjective rights and bear legal obligations, as well as to personally implement them in a legal relationship through his actions.

Thus, legal personality is legal capacity and legal capacity taken together, i.e. legal capacity. This unifying concept reflects both those situations when legal capacity and legal capacity are subdivided in time, and those when they organically merge together (for example, in organizations, when they are simultaneously legal and capable).

In relation to the legal personality of insurance companies, a two-element composition of legal personality will be considered, including legal capacity and legal capacity.

By its nature, the legal capacity of insurance companies is special, because they can only engage in insurance activities (insurance, reinsurance, mutual insurance). To do this, insurers can assess insurance risk, receive insurance premiums (insurance contributions), form insurance reserves, invest assets, determine the amount of losses or damage, make insurance payments, and carry out other actions related to the fulfillment of obligations under the insurance contract.

In addition, Art. 368 of the Civil Code of the Russian Federation allows insurance organizations to provide bank guarantees. However, it is much more convenient for the insurer, instead of issuing a bank guarantee, to insure financial risk or insure contractual liability.

First of all, the legal capacity of an insurance company depends on the type of insurers, which are divided into private and public, joint-stock and mutual insurance companies (MIC). Thus, the activities of private insurance companies are limited and strictly regulated by insurance supervisory authorities. Special laws have been developed for them, so their legal capacity is of a special nature. On the other hand, public insurance companies have public legal organizational forms founded by the state. Hence, since the state insurance company is approved by a special body authorized by the state, legal capacity will be special.

Regarding joint-stock insurance companies, the legislator proclaimed the principle of their universal legal capacity, although a fairly large number of their potential capabilities are significantly limited by law. Thus, a joint-stock company that has received a license to conduct insurance activities is automatically deprived of the right to engage in production, business, trading, intermediary and banking activities. . The legislation on insurance joint-stock companies regarding their legal capacity takes an intermediate position, on the one hand, declaring their general legal capacity, but on the other hand, narrowing it to a significant extent, and justifiably, with rules on licensing of certain types of activities. The activities of OVS are usually subject to the same legal norms as the activities of joint-stock insurers. In some countries, special laws have been issued on the activities of OBCs, which establish the procedure for registering these insurers. This means granting special legal capacity to this type of insurer. OBCs are more typical for the USA (they account for about 42% of sales of personal insurance policies) and Japan, where OBCs are the predominant form of organizing personal insurance (see: Handbook on the Insurance Business / Ed. . Prof. E.A. Utkina. M.: Association of Authors and Publishers “Tandem”, publishing house “EKMOS”, 1998. P. 211). .

Thus, the legislator introduced a rule according to which the legal capacity of an insurance company is limited to types of insurance, but did not provide a precise regulatory definition of this concept. Thus, the interpretation of this issue is essentially transferred to the competence of the insurance supervisory authority. Judicial practice shows that when a dispute arises about the legal capacity of an insurance company, the opinion of the insurance supervisory authority is decisive, since the courts simply do not have any other way to resolve this issue.

Scope of legal capacity of the insurance company. For commercial organizations, Part 2, Clause 1, Art. 49 of the Civil Code of the Russian Federation establishes general legal capacity, which can be limited only in cases and in the manner prescribed by law (clause 2 of Article 49 of the Civil Code of the Russian Federation). A legal entity can engage in certain types of activities only on the basis of a special permit (license). Similar restrictions are established for insurance companies in Art. 6 of the Law of the Russian Federation No. 4015-1. If the insurance organization is a unitary enterprise, then additional restrictions may also be established by the charter of this enterprise. In paragraph 2 of clause 1 of Art. 6 of this Law establishes that the main activities of insurers cannot be production, trade and intermediary and banking activities. However, there are exceptions to this rule. Firstly, it is providing the opportunity for an insurance organization to act as a guarantor under a bank guarantee along with banks and other credit institutions (Article 368 of the Civil Code of the Russian Federation). The second exception to the ban on banking activities should be recognized as the opportunity provided to insurers in clause 3 of Art. 26 of the Law of the Russian Federation No. 4015-1, issue loans to policyholders who have entered into personal insurance contracts, within the limits of the insured amounts under these contracts. The third exception concerns intermediary activities. New edition of Art. 8 of this Law allowed insurance companies to carry out intermediary activities related to the conclusion on the territory of the Russian Federation on behalf of foreign insurers of civil liability insurance contracts for owners of vehicles traveling outside the Russian Federation. At the same time, the Law legalized the specified intermediary activity from the moment it began to be carried out by the insurance organization.

As for non-profit organizations engaged in insurance activities, Art. 7 of Law No. 4015-1 provides that mutual insurance companies act on the basis of a regulation that must be adopted by the highest legislative body, and the limits of their special legal capacity must be enshrined in this regulation. Moreover, paragraph 2 of Art. 968 of the Civil Code of the Russian Federation establishes that the features of the legal status of a mutual insurance company and the conditions of their activities are determined by the law on mutual insurance, which has not yet been adopted.

Thus, the legal capacity of an insurance company in modern conditions is usually special, and its scope differs from the legal capacity of other legal entities. Having the rights to carry out insurance operations, the insurance company at the same time cannot perform certain actions and enter into transactions permitted to other business entities Fogelson Yu.B. Commentary on insurance legislation. M.: Lawyer, 2003. P. 32. .

Special legal capacity is within the scope of the general prohibition. The powers granted by the permit to carry out insurance activities are the content of the special legal capacity of insurance companies. The powers granted by the system of permits of authorized state bodies when carrying out insurance activities are the subjective rights of legal entities in the field of insurance. Such an artificial narrowing of the legal capacity of domestic insurance companies is necessary for the state to more fully control the economic and financial situation in the country.

The issue of admitting a foreign legal entity to economic activity on the territory of a state is decided by the legislation of that state. In most countries, such activities of a foreign legal entity are possible, but subject to certain rules and conditions established by national legislation. Note that the legal personality of a foreign legal entity is usually recognized on the basis of bilateral treaties. In accordance with paragraph 1 of Art. 2 of the Civil Code of the Russian Federation “the rules established by civil legislation apply to relations involving citizens, stateless persons and foreign legal entities, unless otherwise provided by federal law” Civil Code of the Russian Federation. Part I. (Introductory article by A.L. Makovsky and S.A. Khokhlov.) M.: DE-JURE, 1994. P. 48.

Current legislation gives the concept of a foreign legal entity as an organization created in accordance with the legislation of a foreign state, with a location outside the Russian Federation. This provision is contained in the Law of the Russian Federation of October 9, 1992 N 3615-1 “On Currency Regulation and Currency Control” (as amended by the Federal Law of December 10, 2003 N 173-FZ) Collection of Legislation of the Russian Federation", 12/15/2003, N 50, art. 4859. .

The concept of a foreign legal entity is contained in a number of instructions. For example, Instruction of the State Tax Service of the Russian Federation dated June 16, 1995 N 34 “On taxation of profits and income of foreign legal entities” means a foreign legal entity as “companies, firms, any other organizations formed in accordance with the legislation of foreign states, as well as foreign legal entities - members of associations (associations, consortia and other groups of companies) that are not legal entities.”

Thus, a foreign organization is recognized as a legal entity according to the criteria established not by Russian legislation, but by the legislation of the country where the organization was created. This is the first feature of a foreign legal entity. The legislation of various states has its own characteristics in terms of determining the necessary signs that may indicate that a given organization is a legal entity. This conflict is resolved by international agreements, which recognize as legal entities organizations created and recognized as such under the legislation of a foreign state. The main constituent characteristics of a legal entity under the laws of foreign states for the most part coincide with the characteristics determined by domestic Russian legislation.

The second feature of a foreign legal entity is the emergence of its legal capacity. According to paragraph 3 of Art. 49 of the Civil Code of the Russian Federation “the legal capacity of a legal entity arises at the time of its creation and terminates at the time of completion of its liquidation.” The moment of creation is considered the moment of its state registration (clause 2 of Article 51 of the Civil Code of the Russian Federation). The moment of completion of liquidation and termination of the existence of a legal entity is considered to be the making of an entry about this in the Unified State Register of Legal Entities (clause 8 of Article 63 of the Civil Code of the Russian Federation).

Articles 49, 51, 63 of the Civil Code of the Russian Federation establish the procedure and mechanism that must be followed for the emergence of the legal capacity of a legal entity or its termination.

The principle of recognizing the legal capacity of a legal entity, both domestic and foreign, is the principle of incorporation. Exceptions to this rule can only be made if a corresponding international agreement is signed.

Accordingly, the basis for recognizing a foreign organization as legally capable, i.e. being a legal entity, it is recognized as such by the state in whose territory it was created, regardless of the implementation of the procedure established by Russian legislation (registration, exclusion from the register).

For the Russian Federation, the basis for recognizing an organization as a legal entity and its legal capacity is the law of the country of establishment. According to this principle, the Russian Federation recognizes as a legal entity any organization whose legal form corresponds to all the characteristics of a legal entity defined by the legislation of the country of establishment.

The nationality of a foreign legal entity is determined in order to recognize it as a subject of civil law relations. The nationality of a legal entity is a conditional concept that is necessary only in order to “link” a foreign legal entity to the legal system of a foreign state and, on the basis of the legislation of that state, to recognize or not recognize the organization as a subject of civil law relations. For the purpose of any disputes in this part, international agreements concluded by the Russian Federation with foreign states must provide for the nationality of legal entities, which state they belong to, mutual recognition of legal capacity, and the rule of regime.

The legal capacity of a foreign legal entity may be limited as a result of retaliatory measures of the Government of the Russian Federation in relation to legal entities of those countries in which special restrictions apply to legal entities of the Russian Federation. This rule is contained in Art. 1194 Civil Code. This rule was implemented during the signing of the Agreement between the Russian Federation and the United States of America in the field of activities of insurance companies. The American side put forward about 18 restrictions on the activities of Russian insurance companies, the Russian side put forward about 17 such restrictions.

The agreement has not yet been ratified, but the example itself is quite indicative.

The activities of a legal entity are subject to the rules determined by its personal law (statute). Resolution of the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 No. 8 “On the validity of international treaties of the Russian Federation in relation to issues of the arbitration process” (clause 29) defines personal law as a conflict of laws rule that allows determining the scope of legal capacity and legal capacity of a legal entity (legal status ) Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. N 8. P. 11. .

Determining the personal law (statute) of a legal entity is necessary not only to predict the consequences of joint activities with a foreign legal entity, but also for cases of legal disputes when the court will be forced to “bind” the legal entity to the legal system of any state.

There are no uniform, clear criteria for determining the nationality of a legal entity. Determining the nationality or citizenship of a foreign legal entity is not an easy matter. For the Russian Federation, this issue is of no small importance. A criterion such as control should not be put into practice at the legal level; it must be applied in practice when accrediting and registering foreign legal entities operating in Russia.

The following key approaches are used regarding the activities of foreign insurers in Russia:

1) permission to operate in the sale of insurance services for life insurance and other insurance must be associated with the requirement of establishing a subsidiary of a foreign insurer on the territory of Russia, obtaining a license in accordance with the requirements of the legislation of the Russian Federation, and full compliance with the legislation of the Russian Federation when providing insurance, including number and placement of assets;

2) establishment of quality requirements for foreign insurers establishing a subsidiary insurance company in Russia, including the presence of a license in the country of registration, experience in insurance activities of at least 10 years, permission from the insurance supervision of the country of registration to establish a subsidiary insurance company in the Russian Federation and recommendations regarding foreign managers of such subsidiary;

3) an extremely cautious attitude towards limiting or introducing additional requirements related to the capitalization of a subsidiary or the maximum share of the total capital of all subsidiaries of foreign insurers in the total capital of Russian insurers.

Such restrictions should not be excessive (no more than 50% of the total amount of insurance capital registered in the Russian Federation).

At the stage of activity of a subsidiary of a foreign insurer, the following restrictions are accepted:

1) a ban on participation in compulsory social insurance, to which national insurers are entitled (in Russia this is compulsory health insurance);

2) a ban on participation in state compulsory insurance, payments for which are paid from the state budget (in Russia this is compulsory state insurance for military personnel and persons equivalent to them, employees of tax authorities, deputies of the State Duma and a number of others);

3) a ban on participation in certain other types of compulsory insurance (compulsory employer liability insurance, etc.);

4) a prohibition for established subsidiaries of foreign insurers to conduct life insurance operations during the first three years after registration and receipt of a license.

The legal status of insurance companies with foreign participation in capital should be determined in accordance with the following provisions:

1) if the share of a foreign investor does not exceed 49% in the capital, then such an organization is granted national treatment, i.e. it has the right to conduct all types of insurance activities permitted by Russian legislation and the issued state license;

2) if a Russian insurer with foreign participation was registered and received a license to carry out insurance activities before the adoption of amendments to the Law of the Russian Federation No. 4015-1, then it has the right to conduct all types of insurance operations provided for by its state license;

3) if a Russian insurer is established with more than 49% participation of a foreign insurer, then both its establishment and its activities are associated with additional significant requirements and restrictions imposed by Russian insurance legislation;

4) the requirements for the size of the authorized capital of such organizations are tens of times higher than the requirements for other Russian insurers. In addition, the total authorized capital of foreign investors cannot exceed 15% of the total insurance capital of Russian insurers.

In civil legislation, the concept of legal capacity is given in relation to citizens as subjects of law. There is no article on the legal capacity of a legal entity in the Civil Code of the Russian Federation, but the fact of its existence from the moment the legal entity came into being is beyond doubt.

The legal capacity of a legal entity is the ability of a legal entity through its actions to acquire civil rights and bear civil responsibilities, including liability.

According to the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law and constituent documents. The procedure for appointing or electing bodies of a legal entity is determined by legislation and constituent documents.

In cases provided for by law, a legal entity may acquire civil rights and assume civil responsibilities through its participants. As for the legal capacity of insurance companies, their recognition as a subject of civil law relations, i.e. possessing legal personality, there is recognition of the possibility of them performing independently, on their own behalf and in their own interest, various actions, and first of all transactions. A transaction is a conscious act of will aimed at achieving a certain result. The will is the defining element of the doctrine of the validity of transactions. The ability to form a will is inherent in any subject of civil legal relations, and an insurance company is no exception. See: Shelekhov K.V., Bigdash V.D. Insurance. Kyiv: Publishing house "MAUP", 1998. P. 49. . It follows that insurance companies must have legal capacity and capacity to enter into insurance legal relations.

The insurer, by virtue of its charter and relevant license, must have the right to carry out insurance activities. The charter of the insurance company contains the rights and obligations and responsibilities of the insurer.

Thus, the composition of the legal personality of insurance companies is represented by two main elements: legal capacity and legal capacity. There is no doubt that there is special legal capacity for public and private insurers. For ASK and OBC, which have general legal capacity, the latter is limited by licensing standards, i.e. it can be called “dosed”. The scope of legal capacity of insurance companies may expand in some cases, and narrow in others; the decision on this issue is transferred to the insurance supervisory authority. The legal personality of foreign companies is usually recognized on the basis of bilateral agreements, while the limits of the legal personality of foreign insurers have not yet been established in domestic legislation. There is no doubt that insurance companies, as subjects of civil law relations, have the right to make transactions and express their will, since they have legal capacity.

2. ELEMENTS OF THE LEGAL STATUS OF INSURANCE COMPANIES

2. 1. Rights of insurance companies

It should be noted that there is no separate Law on insurance companies in Russia, therefore their rights, duties and responsibilities are not separately highlighted by the legislator in a separate legal act. Therefore, to characterize them we will use laws and regulations such as the Civil Code of the Russian Federation; Law of the Russian Federation “On the organization of insurance business in the Russian Federation; Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” (extract) Collection of legislation of the Russian Federation. 2002. N 43. Art. 4190. etc.

Based on the fact that subjective right is a measure of voluntary behavior belonging to the subject, ensured by the state, let us consider the rights of insurance companies.

According to domestic legislation, the rights of insurance companies are the right of a company to conduct insurance activities in the form of voluntary insurance, which has a state permit (license) for this business activity. The second most important right is the right of the insurance company to appeal the actions of Rosstrakhnadzor to suspend, restrict or revoke a license.

Also, when concluding an insurance contract, the insurer has the right to receive, and the policyholder is obliged to provide, information about circumstances known to the policyholder that are important for determining the likelihood of an insured event occurring.

When concluding an insurance contract, the insurer has the right to inspect the insured property, and, if necessary, to order an examination in order to determine its actual value. Under a personal insurance contract, the insurer has the right to examine the insured person to assess the actual state of his health. The insurance contract may also provide for other rights of the insurer.

Insurance rules are one of the regulations that define the conditions for voluntary insurance. For property insurance, the Insurance Rules indicate a list of property that can be insured; insurance period; the procedure for concluding an insurance contract and paying insurance payments, the procedure for determining and paying insurance compensation. For example, according to the Property Insurance Rules, the insurer has the right: clause 11.71 - at any time (within reason) to inspect and control the insurance object, as well as check the information provided by the policyholder and compliance with the terms of the insurance contract; clause 11.72 - immediately, unilaterally terminate the insurance contract or demand additional payment of the insurance premium if the initial characteristics of the insured object specified in the insurance application change, or the conditions of its operation or storage deteriorate, increasing the likelihood of an insured event or otherwise increasing the degree of risk; clause 11.73 - demand from the policyholder documents certifying the occurrence of the insured event, the amount, as well as confirming the amount of the insurance compensation to be paid; clause 11.74 - independently determine the causes and circumstances of the insured event, the amount of loss, conduct an inspection or examination of the damaged property; clause 11.75 - if the competent authorities have materials that give grounds for the insurer to refuse to pay insurance compensation, to defer payment until all circumstances are clarified; clause 11.76 - to file recourse claims, within the limits of the amount of insurance compensation paid, against the persons responsible for the damage caused. Rules for insuring property against fire and other hazards. OJSC "East European Insurance Agency (VESTA)". License of the Ministry of Finance of the Russian Federation dated July 21, 1998 N 1095D. M., 2000. P. 8. The rules of personal insurance first of all determine who is accepted for insurance, indicate what relates to the insurance conditions, and set out the procedure for paying insurance amounts.

Insurance rules in different insurance companies contain different scope of rights and obligations of the insurance company. Thus, in the same type of property insurance against fire and other dangers, in the AFES Insurance Rules, the rights of the insurer are expanded by 2 points compared to the same Rules of the VESTA insurance company. According to clause 8.2.3, the insurance company has the right to: refuse to insure property, the condition and conditions of use, operation and storage of which do not comply with fire safety rules and operational and technical requirements; in accordance with clause 8.2.8, the insurer has the right to demand that the contract be invalidated if, after concluding the insurance contract, it is established that the policyholder has provided the insurer with knowingly false information about circumstances that are significant for assessing the insurance risk Rules for insuring property against fire and other hazards N 06.03. OJSC "Insurance Company "Unified Insurance Aviation Fund (AFES)". M., 2000. S. 8, 9. .

Rules of personal insurance of another insurance company Rules of accident insurance N 11.03. OJSC "Insurance Company "Unified Insurance Aviation Fund (AFES)". M., GSP-47. Leningradsky pr., 37. S. 2. :

1) check the information provided by the policyholder, as well as his compliance with the requirements and terms of the contract;

2) conduct an investigation of the insured event, and, if necessary, send requests to the competent authorities for the provision of relevant documents and information confirming the fact and reason for the occurrence of the insured event. Refusal of insurance payment is given on four grounds:

a) in case of failure by the policyholder to comply with these Rules and obligations under the insurance contract;

b) if the policyholder (insured) provided knowingly false information about the insured at the time of concluding the contract;

c) if the policyholder (insured) prevented the insurer from participating in the investigation of the insured event;

d) if the policyholder (insured) did not notify about the accident within the period established by these Rules.

Let's consider the rights of insurance companies - subsidiaries.

According to paragraph 4 of Art. 6 of the Law of the Russian Federation No. 4015-1, an insurance organization that is a subsidiary of a foreign investor (main organization) has the right to carry out insurance activities in the Russian Federation if the foreign investor (main organization) has been an insurance organization operating in the Russian Federation for at least 15 years in accordance with the legislation of the relevant state, and has been participating in the activities of insurance organizations established on the territory of the Russian Federation for at least two years.

Insurance organizations that are subsidiaries of foreign investors (main organizations) or have a share of foreign investors in their authorized capital of more than 49%, have the right to open their branches on the territory of the Russian Federation and participate in subsidiaries of insurance organizations after receiving prior permission from the federal executive authority for supervision of insurance activities. The specified preliminary permission is refused if the amount (quota) of participation of foreign capital in insurance organizations of the Russian Federation is exceeded.

To protect their non-commercial interests, develop draft legislative acts and other joint actions that do not contradict antimonopoly legislation, insurance companies can create associations of insurers. For example, in October 2000, more than 15 capital insurance companies established the Moscow Association of Insurers. The association was created with the aim of protecting the interests of the MAS before the legislative and executive authorities of Moscow. These associations of insurers cannot pursue the goals of joint implementation of insurance activities; they are non-profit organizations and therefore are not represented on the insurance market, i.e. cannot enter into insurance contracts. To regulate intra-corporate relations, inform society about the goals and benefits of insurance and lobby their interests in the highest echelons of government, insurers have united into unions. In the early 90s. There were two professional unions of insurers in Russia - the Insurance Union of Russia and the Russian Union of Insurers. Elite of the Russian Insurance Business / Comp. S. Belousov. Part 1. M.: Digest, 1999. P. 16. . The existence of two trade unions at once turned out to be not very convenient, and therefore in 1994 - 1995. these organizations united to form the VSU (All-Russian Union of Insurers). Today BUS unites several hundred insurance companies and their professional organizations.

2. 2. Main responsibilities of insurance companies

Legal status of the insurer. Legal status of insurance organizations Legal status of insurance companies

40. Legal status of insurance organizations.

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