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About the Mutuality Principle in Insurance – an Attempt at Reinterpretation 论保险中的互惠原则——重新诠释的尝试
Pub Date : 2022-08-15 DOI: 10.5604/01.3001.0015.9303
Paweł Machulak, Jakub Sewerynik
The operation of mutual insurance companies is based on the mutuality principle in providing their members with insurance. In Polish legal doctrine, the mutuality principle has been mainly associated with the non-final nature (amount) of the premium. It has been even indicated that there is no obligation to pay a fixed premium in mutual insurance. The article analyses whether such an understanding of the principle of mutuality is confirmed by the regulations in force and whether it is factually consistent with the current interpretation of this rule. Moreover, an attempt has been made to identify the key features of the principle of mutuality.
互助保险公司的运作是基于互惠原则为其成员提供保险。在波兰法律学说中,相互性原则主要与保险费的非最终性质(数额)联系在一起。甚至有人指出,在相互保险中没有义务支付固定的保险费。本文分析了这种对互惠原则的理解是否为现行法规所确认,是否与现行规则的解释在事实上一致。此外,还试图确定相互关系原则的主要特征。
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引用次数: 0
Gloss to the Judgment of the Court of Justice of the European Union of 21 December 2021 C-428/20 on the Method of Determining the Amounts Guaranteed in National Law while Increasing Them Following an Amendment to a Directive 对欧盟法院2021年12月21日第C-428/20号关于确定国内法中担保金额同时在指令修正案后增加其金额的方法的判决的注释
Pub Date : 2022-03-30 DOI: 10.5604/01.3001.0015.7925
Marcin Orlicki
The gloss refers to the judgment of the Court of Justice of the European Union of 21 December 2021 in Case C-428/20. According to this judgment, Member States which have availed themselves of the option to determine a transitional period, with this option having been provided for in EU legislation on compulsory insurance against civil liability in respect of the use of motor vehicles, are obliged to require that the minimum amounts guaranteed in motor third party liability insurance contracts concluded before the lapse of the transitional period but still in force on that date have the amount required by EU law
注释是指欧盟法院在2021年12月21日对C-428/20号案件的判决。根据这一判决,在欧盟关于机动车使用民事责任强制保险的立法中规定了选择确定过渡期的成员国,是否有义务要求在过渡期结束前订立但在该日仍有效的汽车第三者责任保险合同所保证的最低金额必须符合欧盟法律所要求的金额
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引用次数: 0
"Good Practices in Brokerage Activity" – Selected Dilemmas “证券业的良好实务”-两难选择
Pub Date : 2022-03-30 DOI: 10.5604/01.3001.0015.8054
J. Pokrzywniak
The article examines the publication "Good Practices in Brokerage Activity" published in 2021 by the Association of Polish Insurance and Reinsurance Brokers. The project aims to update good practices in the brokerage activity (hereinafter: Good Practices) and should be considered a positive initiative, because the existing Broker's Code of Ethics which was adopted on 23 May 2013 as well as the Principles of Good Practices and Cooperation of Insurance Brokers and Insurance Companies published in 2000 do not solve all problems which the market is currently facing. In addition, brokerage activity has been scarcely regulated under private law. Given the above, established customs and principles of social coexistence are particularly important for brokerage services in connection with Article 56, Article 65 § 1 and Article 354 of the Polish Civil Code.Not only do the draft Good Practices refer to the conduct of brokers, but they also contain a number of standards of conduct meant for insurance companies. As a result, this document ought to be acknowledged by insurance undertakings (their professional associations). On the other hand, it should be emphasized that Good Practices will not be binding on brokers who are not members of the Association of Polish Insurance and Reinsurance Brokers. Although Good Practices contain a lot of recommendations that deserve an unequivocally positive assessment, there are some provisions therein that may provoke controversies. The purpose of the article is to draw attention to the provisions which may require further work and discussion.
本文研究了波兰保险和再保险经纪人协会于2021年出版的出版物“经纪活动中的良好做法”。该项目旨在更新经纪活动中的良好做法(以下简称“良好做法”),应被视为一项积极的举措,因为现有的2013年5月23日通过的《经纪人道德守则》以及2000年发布的《保险经纪人和保险公司良好做法与合作原则》并不能解决市场目前面临的所有问题。此外,经纪活动几乎没有受到私法的监管。鉴于上述情况,根据《波兰民法典》第56条、第65条第1款和第354条,既定的习俗和社会共存原则对经纪服务尤为重要。《良好规范》草案不仅涉及经纪人的行为,而且还包含一些适用于保险公司的行为标准。因此,该文件应得到保险公司(其专业协会)的认可。另一方面,应该强调的是,良好做法对非波兰保险和再保险经纪人协会成员的经纪人没有约束力。虽然“良好做法”包含了许多值得明确肯定的建议,但其中有些条款可能会引起争议。该条的目的是提请注意可能需要进一步工作和讨论的规定。
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引用次数: 0
Gloss to the Judgment of the Court of Justice of the European Union of 29 October 2021 (Request for a Preliminary Ruling from the District Court in Opatów – Poland) HG and TC v. the Insurance Guarantee Fund, Case C-688/20 对欧盟法院2021年10月29日判决(要求波兰Opatów地区法院作出初步裁决)HG和TC诉保险保证基金案C-688/20的注释
Pub Date : 2022-03-30 DOI: 10.5604/01.3001.0015.7926
Aleksander Raczyński
The publication is an approving gloss to the judgment of the Court of Justice of the European Union of 29 October 2021 in Case C-688/20, HG and TC v. the Insurance Guarantee Fund. The judgment addresses two important issues: on the one hand, the scope of compulsory insurance against civil liability in respect of the use of motor vehicles in accordance with the first paragraph of Article 3 of Directive 2009/103 and, on the other hand, the relationship between EU legislation (in this case directives) and national regulations.In the context of the compatibility of the criteria for the existence of an insurance obligation under the first paragraph of Article 3 of Directive 2009/103 (5th Motor Directive), the Court of Justice upheld the earlier line of case-law in a logical and consistent way, by referring to the formal condition that a vehicle is registered and roadworthy in accordance with the national legislation in force.That judgment indicates the discrepancy between national and EU legislations in terms of the conditions for compulsory insurance. Although Article 23(1) of the Law on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers' Bureau links the insurance obligation with the mere fact of a vehicle ownership, the interpretation of the first paragraph of Article 3 of Directive 2009/103 presented by the Court of Justice allows for the exemption from that obligation in the event of formal deregistration of a vehicle or its withdrawal from use under relevant national regulations. Nevertheless, the existence of such discrepancy is not an objection to the commented judgment. It is the role of the Court of Justice to ensure that EU legislation is interpreted in an autonomous and uniform manner throughout the European Union.
该出版物是对欧盟法院于2021年10月29日在案件C-688/20, HG和TC诉保险保证基金案中判决的认可注释。该判决解决了两个重要问题:一方面,根据指令2009/103第3条第1段,针对机动车辆使用的民事责任强制保险的范围,另一方面,欧盟立法(在这种情况下是指令)与国家法规之间的关系。在第2009/103号指令(第5号汽车指令)第3条第1段规定的保险义务存在标准的兼容性背景下,法院以逻辑和一致的方式维护了判例法的早期路线,参考了车辆根据现行国家立法进行注册和可上路的正式条件。这一判决表明,就强制保险的条件而言,各国立法与欧盟立法之间存在差异。尽管《强制保险法》第23(1)条、保险保证基金和波兰汽车保险局将保险义务与车辆所有权的事实联系起来,但法院提交的第2009/103号指令第3条第1段的解释允许在车辆正式注销或根据相关国家法规退出使用的情况下免除该义务。然而,这种差异的存在并不是对评论判断的异议。法院的作用是确保欧盟立法在整个欧盟以自主和统一的方式解释。
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引用次数: 0
Personal Data Transfers Outside the European Economic Area in the Insurance Sector Context 保险行业背景下欧洲经济区以外的个人数据转移
Pub Date : 2022-03-30 DOI: 10.5604/01.3001.0015.7924
Piotr Czulak
The article aims to cite and synthetically analyse key regulations in the field of personal data transfers outside the European Economic Area, taking into account the specificity and requirements of the insurance sector. It covers both national and European legislations, recent case law, guidelines of competent authorities as well as relevant industry standards. It also identifies the key risks for personal data controllers, particularly in the context of the Schrems II case and related requirements defined in the guidelines of the European Data Protection Board. In addition, it presents general recommendations on best practices related to the adequate protection of personal data transfers for the insurance sector entities.
本文旨在引用并综合分析欧洲经济区以外个人数据传输领域的关键法规,同时考虑到保险部门的特殊性和要求。它涵盖了国家和欧洲的立法、最近的判例法、主管当局的指导方针以及相关的行业标准。它还确定了个人数据控制者的主要风险,特别是在Schrems II案例和欧洲数据保护委员会指导方针中定义的相关要求的背景下。此外,它还就保险部门实体充分保护个人数据转移的最佳做法提出了一般性建议。
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引用次数: 0
Distribution of the Burden of Proof in the Claim Settlement Procedure in Voluntary Business Third Party Liability Insurance 自愿商业第三者责任保险理赔程序中的举证责任分配
Pub Date : 2022-03-30 DOI: 10.5604/01.3001.0015.7923
Jacek Woronkiewicz
The article is an attempt to analyse the legal standing of the policyholder, the insurer and the injured party in the context of an obligation to collect evidence at the stage of the claim settlement procedure as part of handling claims under voluntary third party liability insurance contracts concluded by entrepreneurs. It is important to establish the limits of the obligations of the insurer, the policyholder and the injured party in the claim settlement procedure, and in particular to consider the property interests of the insured entrepreneur in relation to the interests of the injured party. The article examines the insurer’s role in ascertaining facts of the case and conducting a legal assessment, as well as in obtaining material evidence necessary to handle claims of injured parties pursued against the insured entrepreneur and the third party liability insurer. In addition to discussing the application of Article 6 of the Polish Civil Code in the claim settlement procedure, the article addresses the objectives and functions of business third party liability insurance in the context of evidence collecting and weighing. Furthermore, the author considers the legal standing and scope of the insurer's activity in cases where the injured party has instituted court proceedings.
本文试图分析投保人、保险人和受害方在索赔解决程序阶段收集证据的义务的法律地位,这是企业家自愿订立的第三方责任保险合同中处理索赔的一部分。在理赔程序中,确定保险人、投保人和受害方的责任界限十分重要,尤其要考虑被保险人的财产利益与受害方的利益之间的关系。本文探讨了保险人在确定案件事实和进行法律评估以及获取必要的物证以处理受害方对被保险企业家和第三方责任保险人的索赔方面的作用。本文除了讨论《波兰民法典》第6条在理赔程序中的适用外,还从证据收集和权衡的角度探讨了商业第三方责任保险的目标和功能。此外,作者还考虑了在受害方提起诉讼的情况下保险人的法律地位和活动范围。
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引用次数: 0
Key Problems of Customers in the Era of COVID-19 Pandemic – Insurance Market Diagnosis 新冠肺炎大流行时代客户的关键问题——保险市场诊断
Pub Date : 2022-03-30 DOI: 10.5604/01.3001.0015.7922
Dorota Maśniak, Aleksandra Gnas
The article aims at presenting selected issues related to customers’ problems which have become apparent in the era of COVID-19 pandemic. The authors seek to answer the question about the way the pandemic situation has influenced the scope of insurance coverage offered by insurance undertakings. Accordingly, they pay particular attention to the attempts made by insurers to expand insurance coverage by introducing pandemic-related provisions into the GTC. The analysis focuses on types of insurance that relate to risks which are of vital importance during the pandemic and to the restrictions introduced as a result thereof (travel insurance, life insurance and BI insurance). As the research covers the current situation, the article is a preliminary diagnosis indicating problems which ought to be thoroughly examined in the future
本文旨在介绍在COVID-19大流行时代已变得明显的客户问题的相关问题。提交人试图回答关于大流行病如何影响保险公司提供的保险范围的问题。因此,他们特别注意到保险公司试图通过在GTC中引入与大流行病有关的条款来扩大保险范围。分析的重点是与大流行期间至关重要的风险相关的保险类型以及因此而采取的限制措施(旅行保险、人寿保险和商业智能保险)。由于研究涵盖了现状,这篇文章是一个初步的诊断,指出了未来应该深入研究的问题
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引用次数: 0
Additional Forms of Retirement Savings under the Third Pillar of the Polish Retirement Protection System 波兰退休保护制度第三支柱下的其他退休储蓄形式
Pub Date : 2022-03-30 DOI: 10.5604/01.3001.0015.8053
M. Szczepańska
The purpose of the article is to present the additional forms of retirement savings under the third pillar of the Polish retirement protection system as well as in the broader context of the national pension insurance system, taking into consideration legal regulations concerning pension benefits paid by the Polish Social Insurance Institution (ZUS). The author synthetically discusses various schemes operating in the third pension pillar (EPS, IRA, IRPA and ECP), and analyses the adequacy of the adopted solutions in the light of the basic aim of this system which is to complement benefits paid under the national pension system. In addition, benefits paid out to the participants to the third pillar schemes are discussed in detail in the context of the overall objective of the third pillar.
本文的目的是提出在波兰退休保护制度第三支柱下以及在国家养恤金保险制度的更广泛范围内的退休储蓄的其他形式,同时考虑到有关波兰社会保险机构(ZUS)支付养恤金福利的法律条例。作者综合讨论了在第三养老金支柱(EPS、IRA、IRPA和ECP)中运行的各种方案,并根据该制度的基本目标(补充国家养老金制度下支付的福利)分析了所采用的解决方案的充分性。此外,在第三支柱总体目标的背景下,详细讨论了向第三支柱计划参与者支付的福利。
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引用次数: 1
Monetary Compensation for Violating Family Ties with the Immediate Family Members of the Injured Party under the new Article 4462 of the Polish Civil Code 根据新的《波兰民法典》第4462条对违反与受害方直系亲属关系的金钱赔偿
Pub Date : 2021-12-29 DOI: 10.5604/01.3001.0015.6034
M. Serwach, Marcin Orlicki
The article investigates the background, contents, methods of interpretation as well as consequences of the newly adopted Article 4462 of the Polish Civil Code. The authors conduct a critical analysis of the provision by indicating numerous doubts that have not been resolved by the legislator when introducing it to the Civil Code. What seems particularly doubtful is the relationship of the provision with regulations in force relating to the possibility of awarding financial compensation to persons indirectly injured and the principle of applying this provision to the state of events that occurred prior to its entry into force date.
本文考察了新通过的波兰民法典第4462条的背景、内容、解释方法及其后果。作者通过指出立法者在将该条款引入民法典时尚未解决的许多疑问,对该条款进行了批判性分析。特别值得怀疑的是,这项规定与有关向间接受伤者提供经济赔偿的可能性的现行条例之间的关系,以及将这项规定适用于在其生效日期之前发生的事件的原则之间的关系。
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引用次数: 0
Property Development Guarantee Fund – New Measures to Protect Purchasers of a Residential Unit or a Detached House 物业发展保证基金-保障住宅单位或独立屋买家的新措施
Pub Date : 2021-12-29 DOI: 10.5604/01.3001.0015.6036
W. Majewski
The article discusses the purchase of residential premises or single-family houses on the primary market and the rules of consumer protection in the event of the developer’s bankruptcy or other difficulties encountered while transferring the ownership of such real properties. The author presents the way that led to the adoption of new regulations of the Act on the Protection of the Rights of Purchasers of a Residential Unit or a Detached House and on the Property Development Guarantee Fund, passed in May 2021. A major change resulting from the adoption of the new regulations is the establishment of the Property Development Guarantee Fund within the Insurance Guarantee Fund, whose role will be to provide buyers with comprehensive protection as well as certainty that all funds deposited on the residential trust accounts are recovered in the event of the withdrawal from the property development agreement or the developer’s bankruptcy. In addition, the article discusses the operation principles of the Property Development Guarantee Fund as well as the rights and obligations of the participants of the property development market.
本文讨论了在一级市场上购买住宅或独栋住宅的问题,以及在房地产转让过程中遇到开发商破产或其他困难时的消费者保护规则。作者介绍了导致采用2021年5月通过的《住宅单位或独立住宅购买者权利保护法》和《房地产开发担保基金法》新规定的方式。新规例的一个主要变化是在保险保证基金内设立物业发展保证基金,其作用是为买家提供全面保障,并确保在物业发展协议被撤销或发展商破产的情况下,所有存入住宅信托账户的资金都能收回。此外,文章还讨论了房地产开发担保基金的运作原则以及房地产开发市场参与者的权利和义务。
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引用次数: 0
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Prawo Asekuracyjne
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