Kokoulin Dmitry, PhD, Grand PhD, Academician
Annotation. At the present stage of development of Russian society, the problem of reliable growth of the state economy is extremely acute and relevant. This is partly due to the severity and scale of unforeseen disasters, the main cause of which is non-compliance with safety rules at property insurance facilities.
Taking this into account, the author conducted a content analysis of the safety rules at property insurance facilities for their quality. It has been established that these rules are characterized by a high degree of concentration of flaws that negatively affect the prevention of fires, explosions and other excesses in places where people stay.
Keywords: insured event, policyholder, insurer, safety rules, property insurance, legislation, legal grounds.
When insuring property, the object of insurance is a property interest associated with the risk of loss (death), shortage or damage to property belonging to the policyholder on the basis of a law, other legal act or transaction (Article 929 of the Civil Code of the Russian Federation and Part 4 of Article 4 of the Law of the Russian Federation dated 27.11.1992 No. 4015-1). Insurance provides the creation of economic conditions and guarantees for compensation of losses related to damage or loss of property due to the occurrence of adverse circumstances (insured events). [1]
The procedure for insurance of state and municipal property is determined by its owners by issuing relevant regulations. Based on the study of a number of norms of Ingosstrakh Rules and the practice of their application, the following flaws are revealed. [2]
Firstly, paragraph 9.3.4 of the Ingosstrakh Rules, imposing on policyholders the obligation to comply with the norms and rules established by the legislation of the Russian Federation or other regulatory acts, does not provide an exhaustive list of them, limiting the enumeration of documents to the expression “etc.”.
It is quite obvious that such a construction of the Ingosstrakh Rules clause “plays into the hands” of the Insurer, since it initially obliges the Policyholder to search for documents “without an address” in a multimillion-dollar set of Rules. On the contrary, this situation is more advantageous for the Insurer, since when an insured event occurs, it may be about the safety or loss of significant funds. In order to exclude an unfavorable development scenario, the Insurer will easily”find the right document, on the basis of which he will refuse to pay insurance indemnities to the Policyholder. [3]
Consequently, clause 9.3.4 of the Ingosstrakh Rules “makes heavier” the Policyholder’s obligation by reducing the Insurer’s obligations. This injustice, in turn, violates the basic features of the mentality of Russians and rejects them from participating in insurance. As a result, customers who, like society, suffer losses are passing by insurance companies. In this regard, there is every reason to consider paragraph 9.3.4 of the Ingosstrakh Rules as client-repellent and economically harmful.
Secondly, paragraphs 14.3 – 14.3.1 of the Ingosstrakh Rules, which give the Insurer the right to refuse payment of insurance compensation in whole or in part if the Policyholder (Beneficiary) deliberately did not fulfill (violated) obligations under the Insurance Contract – written instructions of the Insurer – are particularly harmful in connection with paragraph 9.3.5 of the same Rules. The latter obliges the Policyholder to eliminate circumstances that significantly increase the degree of insurance risk, the need to eliminate which was indicated in writing to the Policyholder by the Insurer.
The harmfulness of the points lies in the fact that the written instructions of the Insurer are a repetition of similar instructions of the supervisory authorities, with the help of which he solves 2 tasks:
- a) formally carries out preventive measures to reduce the degree of insurance risk;
- b) translates all violations of regulatory legal acts objectively committed by the Policyholder in the form of negligence and intent into a single form – the form of intentionally committed acts.
And this is a veiled form of fraud of the Insurer, which contradicts all the basic principles of law and is subject to immediate revision. Consequently, paragraphs 14.3; 14.3.1; 9.3.5 of the Ingosstrakh Rules fully correspond to the signs of corruption. In addition, in strategic terms, they are economically harmful and customers are not interested.[4]
Thirdly, the vulnerability of clause 14.4 of the Ingosstrakh Rules, which exempts the Insurer from damages if the Policyholder (Beneficiary) intentionally did not take reasonable and affordable measures to reduce possible losses from the insured event, is that it fully reproduces Part 3 of Article 962 of the Civil Code of the Russian Federation and contradicts a number of other points of the Ingosstrakh Rules.[3]
In fact, in case of an insured event, the Policyholder is obliged to do everything possible to reduce losses. At the same time, the measures taken by the Policyholder must not only be reasonable and accessible, but also not contradict the instructions of the Insurer and other persons responsible for the liquidation of the insured event, because otherwise, this does not exclude the death of people and the growth of losses. At the same time, the assessment of the Policyholder’s actions on the fire by the Insurer is very doubtful due to the involvement and lack of sufficient qualifications, work experience and “fire” powers. This is largely due to the fact that only the Fire extinguishing manager (RTP), who manages on the principles of unity of command and is responsible for the tasks and safety of fire extinguishing participants, has the right to exercise direct control over fire extinguishing.
It is in the sphere of activity of the RTP, and this is clear from Article 22 of the Federal Law “On Fire Safety” that a number of powers, including:
- a) determination of the fire zone and the boundaries of the territory where fire extinguishing and emergency rescue operations are carried out;
- b) the procedure and features of the implementation of these actions;
- c) making a decision on the rescue of people and property, involving, if necessary, additional forces and means to extinguish the fire, including the unified state system for the prevention and liquidation of emergency situations;
- d) establishment of the procedure for managing the actions of fire protection units at the fire site and the forces involved in extinguishing the fire; arrangement of incoming forces and means at the fire site;
- e) organization of communication in the fire zone with the participants in extinguishing the fire and the forces involved in extinguishing the fire and carrying out emergency rescue operations;
- f) taking measures to preserve physical evidence, property and material conditions at the fire site for the subsequent establishment of the cause of the fire.
If necessary, the RTP makes decisions to restrict the rights of officials and citizens in the territory of the fire zone. The instructions of the RTP are strictly mandatory and unconditional for everyone who is on the territory of the fire. Consequently, no one has the right to interfere with the actions of the RTP or cancel its orders when extinguishing a fire.
Thus, in the fire extinguishing zone, the RTP is the main official and therefore all instructions from the Insurer to the Policyholder cannot have legal grounds if they are not approved by the RTP. And if so, then Part 1 of Article 962 of the Civil Code of the Russian Federation must take into account the serious arguments of fire legislation and the practice of extinguishing fires. [1] For this purpose, Part 1 of Article 962 of the Civil Code of the Russian Federation should be clarified by stating it in the following wording: «1. Upon the occurrence of an insured event stipulated by the property insurance contract, the policyholder is obliged to take reasonable and affordable measures in the circumstances to reduce possible losses. Taking such measures, the policyholder must follow the instructions of the insurer, if they are communicated to the policyholder and do not contradict the instructions of the persons responsible for the liquidation of the insured event.”
It seems that the new version of Part 1 of Article 962 of the Civil Code of the Russian Federation will eliminate the inferiority not only of paragraph 14.4 of the Ingosstrakh Rules, but also of the entire insurance legislation.
Based on the study of the Rules of property insurance of JSC “SOGAZ”, the author concludes about their imperfection, harmfulness and the need for improvement. An example of this is paragraphs 4.1; 4.1.1 of the Insurance Rules, which, contrary to the meaning of Article 963 of the Civil Code of the Russian Federation, do not refer to insured events the facts of violation by the Policyholder (Beneficiary) or with their knowledge by the representative of the Policyholder (Beneficiary), as well as by persons living together with the Policyholder (Beneficiary), norms and rules establishing the procedure for preventing insured events. [5]
Clarifying this, we can also say that the Insurer has outlawed laws to neutralize risks, although the pre-emption of the latter has already been regulated by law and regardless of the reasons for the occurrence of insured events always generates the fact of an offense. Consequently, offenses in the form of gross negligence relate to insured events and therefore paragraphs 4.1; 4.1.1 of the Insurance Rules are illegal, corrupt, customer-repellent and economically harmful. Similar flaws are also inherent in paragraphs 4.6; 4.9;.4.1.9;4.1.10 Insurance Rules.
Based on the analysis of a number of norms of the Sberbank Insurance Rules, [6] it can be concluded that they, like the Ingosstrakh and SOGAZ Insurance Rules, have similar flaws. For example, paragraphs 15.3, 15.3.1 of the Sberbank Rules, contrary to Part 1 of Article 963 of the Civil Code of the Russian Federation, do not include losses in the amount of insurance compensation if the Policyholder violates the established safety standards and rules, regardless of the form of fault; paragraphs 15.9, 15.9.2 of the Sberbank Rules, contrary to Article 963 of the Civil Code of the Russian Federation, do not include spontaneous combustion, which may result from gross negligence violation of the RF PPR. Similar flaws are contained in paragraphs 11.5.2; 11.2.7; 11.2.6; 11.5 of the Sberbank Insurance Rules, which, like the previously considered norms, are customer-repellent, economically harmful and corrupt.
Consequently, the overwhelming number of citizens (55%) who do not want to insure property, associate this care with the imperfection of legislation and the practice of its application. If we take into account the fact that insurance premiums for the insurance of property of citizens and other property of legal entities for 2019 amounted to 175 billion rubles, then the amount of insurance premiums received from “refuseniks” could be about 80 billion rubles.
Similarly, Insurers act in relation to Policyholders, and Policyholders act in relation to Insurers. Finally, the shortcomings of the RF PP negatively affect the protection of the rights and legitimate interests of citizens, constrain the initiative of entrepreneurship, serve as a brake on the growth of the economic potential of economic entities, society and the state. Particular harm is caused by flaws used as a means of avoiding legal liability. [2]
Considering the scale and variety of flaws, as well as the scope and specifics of scientific work, the applicant identifies the most harmful defects. First of all, these are gaps, 31% of which include more than 50 norms defining the procedure for fire-safe handling of open fire. [2]
The specified norms of the RF PPR are either completely or partially blank. For example, paragraphs 14, 316, 428, 436 and 278 of the RF PP define the places where smoking is prohibited. However, neither these points, nor the RF RPR, in general, prohibit the use of torches, bonfires and other more powerful sources of fire in places where smoking is prohibited. On the contrary, in turn, the PPR of the Russian Federation does not prohibit smoking in the most fire-hazardous places, for example, at the objects of transportation of LVZH, GZH and GG. There are similar gaps in the norms on the prevention of fires from friction, thunderstorms, solar exposure, electrical installations, gas, kerosene and electrical appliances, shocks, shocks, jerks, furnaces and heating appliances, fire-hazardous, fire-explosive and fire works.
No less “headache” is caused by the vagueness of the regulatory framework, the ambiguity and uncertainty of the terms used. Their presence in the PPR of the Russian Federation is quite large and reaches 15%. The unclear terms, in part, include “near”, “near”, “near”, “foreign objects”, “outbuildings”, “events with a mass stay of people”, “services with a mass stay of people”, “fire-hazardous work”, “fire-explosive work”, “parking of transport”, administrative and household premises”, “temporary buildings”, “clean condition”, “daylight hours”, “etc.”, “etc.”, “emergency stop”, ” emergency work”, “faulty devices”, “flammable materials”, “unorganized storage”, “in exceptional cases”.[2]
It is noteworthy that each of these terms is used many times in the RF RPR. For example, expressions such as “events with a mass stay of people” and “services with a mass stay of people” are listed in paragraphs 30, 31, 32, 43, 84d, 119, 498 of the RF PP; the terms “near”, “near”, “about” are reflected in paragraphs 80,193,220, 238, 269, 316, 332,391,436 of the RF PP; the terms “malfunction” are contained in paragraphs 31, 46a, 51, 80, 81, 83, 99, 157, 160, 164, 166, 168, 173, 220b, 294, 298, 301, 321b, 324, 353b, 357, 391a, 426a, 454 PP RF.
A serious problem in providing insurance protection is caused by duplicate fire regulations, which generate irresponsibility and confusion among their performers. An example of this is the overwhelming number of items of the RF PPR defining the duties of: a) persons responsible for fire safety; b) heads of organizations (enterprises) and their deputies; c) heads of structural divisions of organizations (enterprises) and their deputies; d) chief specialists of organizations (enterprises) and their deputies (chief and senior engineers, chief and senior mechanics, chief (senior) power engineers, chief technologists and deputies, etc. e) owners of property; f) persons authorized to own, use or dispose of property; g) responsible tenants or tenants, unless otherwise provided by the relevant contract. [2]
Contradictions (23%) occupy a negatively significant place in the PPR of the Russian Federation, which violate the internal and external relations of the subjects of fire fighting at insurance facilities, distort the law enforcement process, generate conflict between the insurance parties, reduces the economic growth of companies and society, and in the hands of individual government representatives turn into an instrument of illegal enrichment.
A vivid example of this is the contradiction between the norms of the Federal Law “On Fire Safety”, the RF PPR and the legislation on insurance on the issue of the procedure for the actions of employees and citizens in the event of a fire. So, if a citizen acts as Article 34 of the Federal Law “On Fire Safety” “commands”, then he is obliged to notify the fire department when a fire is detected, and before its arrival to take feasible measures to save people, property and extinguish fires. If a citizen takes into account paragraph 71 of the RF PPR, then when a fire is detected, he should only call the fire department and take all possible measures to evacuate people and extinguish the fire. Therefore, it is not the duty of citizens to save property. Meanwhile, this directly contradicts the provisions of the Civil Code of the Russian Federation and the legislation on insurance. [7]
Currently, there are up to 9% of such norms in the RF PP and they are mainly borrowed from housing legislation, as well as from documents on sanitation, ecology, and energy. For example, from the field of housing relations in the PPR of the Russian Federation “migrated” points 11, 25, 31, 90, 135, 150, 367, 394, establishing a ban on living in buildings of the non-residential sector; from the sphere of protecting the health of citizens from the effects of tobacco and tobacco smoke, paragraph 14, establishing a ban on smoking at protection facilities, “passed” to the PPR of the Russian Federation; from the sanitary and hygienic sphere, paragraphs 189 and 186g, determining the need for “cleanliness” in buildings and structures, “flowed” into the PPR of the Russian Federation.
Foreign norms, which regulate relations unusual for the “fire” sphere, have a special sensitivity among the flaws of the RF PPR. The specificity of foreign norms is such that their violation in the field of fire safety does not create or increase the insurance risk in the fight against fires, but is an “excellent” tool of manipulation in the hands of unscrupulous law enforcement officers.
Thus, the presence of a huge number of flaws in the Safety Rules of property insurance objects allows the author to draw a well-founded conclusion about the need for their substantial processing.
A sharply negative impact on the insurance parties is exerted by the rigidly regulated norms of the PPR of the Russian Federation. The author notes that the strict detailing of fire-fighting requirements constrains the initiative of law enforcement subjects, undermines the authority of law, narrows or excludes the possibility of accurately performing “fire duty”. In addition, rigidly regulated norms are used to “strangle” entrepreneurship in the economic sphere and generate an increase in formally fined persons and conflict situations. The following items can be attributed to the number of strictly regulated ones : 38, 80, 120, 134, 135, 176, 179, 180, 202, 203, 207, 285, 287, 331, 337, 360, 371, 413, 428, 473, 483, 484 PPR of the Russian Federation.
List of literature
- The Civil Code of the Russian Federation (part one) of 30.11.1994 No. 51-FZ (ed. of 09.03.2021) // Collection of Legislation of the Russian Federation. 05.12.1994. No. 32. Article 3301.
- Rules of fire protection regime in the Russian Federation, approved by By Decree of the Government of the Russian Federation No. 1479 of September 16, 2020 (as amended on May 21, 2021). [electronic resource]. https://docs.cntd.ru/document/565837297
- “Comprehensive Rules for Property insurance, Civil Liability and related risks”, approved by Order No. 82 of the Ingosstrakh Joint Stock Company dated March 20, 2017. [electronic resource]. http://www.consultant.ru/cons/cgi/online.cgi?req=doc&base=SOUR&n=184812#CixnJqSUlXqhABVn
- Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 11, 1997 No. 3997/96 [Electronic resource] http://sudbiblioteka.ru/as/text1/vassud_big_1598.htm
- Rules of insurance of property of legal entities and individuals from fire and other hazards, approved by JSC SOGAZ on November 11, 2014. [Electronic resource] https://www.sogaz.ru/upload/iblock/91c/008_pravila-strakhovaniya-imushchestva-yuridicheskikh-i-fizicheskikh-lits-ot-ognya-i-drugikh-opasnostey-ot-11.11.2014.pdf
- Comprehensive rules for property insurance and other related risks No. 31, approved by the Order of Sberbank PJSC No. 67 dated 08.10.2019 [Electronic resource] https://www.sberbank.com/common/img/uploaded/pdf/pravila_strahovania.pdf
- Federal Law “On Fire Safety” dated 21.12.1994 N 69-FZ (latest edition) [Electronic resource] http://www.consultant.ru/document/cons_doc_LAW_5438/
