Современная модель компенсационного страхования (Indemnity Insurance) и перспективы её воплощения в российском праве

Abstract

Introduction: the division of insurance into indemnity insurance and insurance of fixed sums is as common in European legal doctrine as the differentiation between property and personal insurance in Russian law. The article investigates the functions and main features of indemnity insurance and modern trends in legal regulation of this type of insurance. Purpose: to demonstrate the evolution of the compensation insurance model, caused, among other things, by the penetration of the pro-consumer approach in insurance law; to assess the current state of Russian legislation on insurance contract and the proposals for its reform (formulated in Draft revision of Chapter 48 of the Civil Code) from the perspective of the indemnity insurance model. Methods: the authors apply a comparative legal research method to the legislation and doctrine of Russia, Estonia and other EU member states, model acts of insurance law (Principles of European Insurance Contract Law[1]), and also use methods of retrospective analysis. Results:the authors conclude that the indemnity insurance model is still based on long-established principles (necessity of insurance interest, good faith, etc.), although their interpretation may change over time. In addition, the strengthening of pro-consumer ideas has a significant impact on contractual relationship in indemnity insurance: the standard of requirements to the policyholder (insured person) and his liability for breach of contractual duties have been softened, while the level of requirements to the insurer as a professional subject is increasing. This is reflected in formalization of the information duty of the policyholder at the pre-contractual stage, replacement of the all-or-nothing principle by the principle of proportionality when imposing sanctions on the policyholder, including mandatory testing for the causal link between the breach of contract and materialization of risk or increase in damage. It is concluded that the Russian legislation on insurance contract requires a conceptual reform, including through the consistent introduction of the proportionality principle in all cases when sanctions are applied to the policyholder.