The policyholders are the insured persons the beneficiaries of the insurance organizations. Insured person

An insurer is an organization (legal entity) that carries out insurance, undertakes an obligation to compensate for damage or pay the insured amount, as well as in charge of creating and spending an insurance fund. ...

Insured - physical. or legal. a person who pays monetary (insurance) premiums and is entitled by law or on the basis of an agreement to receive a sum of money upon the occurrence of an insured event. The policyholder has a specific insurable interest. A policyholder operating in the international insurance market may also be called a policy holder.

Insured - physical a person whose life, health and ability to work are the object of insurance protection. The insured is individual, in favor of which the insurance contract has been concluded. In practice, the insured can be the policyholder at the same time, if he pays monetary (insurance) premiums on his own.

The beneficiary is a testamentary person, i.e. recipient of the sum insured after the death of the testator. Appointed by the policyholder (insured) in the event of his death as a result insured event... It is recorded in the insurance policy.

8. Name the participants in the insurance business.

The subjects of insurance legal relations are insurers of any organizational and legal form provided for by the legislation of the Russian Federation, who have received a license to carry out insurance activities in accordance with the established procedure, and insurers: legal entities (enterprises, institutions, organizations, joint-stock companies, firms, etc.) and capable fi natural persons who have entered into an insurance contract with insurers or who are policyholders by virtue of law. The insured have the right to conclude agreements with insurers on insurance of "third parties" and in favor of the insured: incapacitated individuals, employees of organizations, enterprises, institutions, JSCs, limited liability companies, etc. and their children, as well as appoint individuals or legal entities for receiving insurance payments under insurance contracts (for the benefit of buyers) with the possibility of replacing them before the occurrence of an insured event.

9. Give a description of the concepts: "object of insurance", "insurance risk", "insured event", "sum insured", "insurance payment".

Insurance object - life, health, working capacity of citizens - in personal insurance; buildings, structures, vehicles, household property and others material values- in property insurance.

Insurance risk - 1) the likelihood of damage to life, health, property of the policyholder (insured) as a result of an insured event. 2) a specific insured event, i.e. a hazard with harmful consequences that can cause damage. 3) specific objects of insurance, according to their insurance assessment, correlated with the degree of probability of damage.

Insured event - an insured event that actually occurred, in connection with the negative or other agreed consequences of which the insurance indemnity can be paid or sum insured(natural disasters, accidents, surviving to a certain age, trauma resulting in permanent disability or permanent health disorder, death.

Sum insured - sum of money, for which material values are insured (in property insurance), life, health, working capacity (in personal insurance).

INSURANCE PAYMENT - the amount of money, the payment of which is stipulated by the insurance contract upon the occurrence of an insured event. In property insurance it is produced in the form insurance compensation, and in personal insurance - in the form of insurance coverage.

The insured person, as a figure participating in insurance legal relations, is most often mentioned in personal insurance contracts, since in accordance with paragraph 2 of Art. 934 of the Civil Code of the Russian Federation, these contracts are recognized as concluded in favor of the insured person, unless another person is named as the beneficiary in the contract.

With all the variety of contracts personal insurance the legislator considers the insured person to be the beneficiary of them, which can only be an individual named in the insurance contract. The need to specify the insured person in the contract is primarily due to the purpose of personal insurance, which is to protect the property interests of the insured or another citizen named in the contract.

The insured person in personal insurance contracts is a universal figure with a different legal status. Moreover, the specified versatility of the legal status of the insured person is determined by the legislator.

In particular, the legislator in Art. 934 of the Civil Code considers the insured person in two versions. First, as a direct policyholder, i.e. when the policyholder enters into a personal insurance contract in his favor, linking the insured event to his personality. Secondly, as third party, named in the contract of the citizen (insured person), linking the insured event with the personality of this person. In this case, two persons act on the side of the creditor in the insurance obligation: directly the policyholder himself, who is a party to the insurance contract, and a third party - the insured person, whose life and health are insured.

Another feature of the legal status of the insured person is that the legislator considers him as the manager of the insurance payment. This is due to the fact that the event, in the event of the occurrence of which personal insurance is carried out, must occur in the life of only the insured person. Therefore, performance under a personal insurance contract depends on the will of the insured person.

The foregoing allows us to conclude that a personal insurance contract cannot be concluded without the participation of the insured person. It is for this reason that the legislator establishes that the right to receive the insured amount belongs to the person in whose favor the insurance contract has been concluded, designating him as the beneficiary at the same time (clause 2 of article 934 of the Civil Code of the Russian Federation).

The figure of the beneficiary in personal insurance, as well as the figure of the insured, is universal.

The following persons may act as a beneficiary in a personal insurance contract:

The policyholder, provided that he is at the same time the insured person and if another person is not named as the beneficiary in the contract; in other words, when a person acts in the insurance contract simultaneously as three persons - the policyholder, the insured person and the beneficiary;

An insured person who does not coincide with the policyholder, but acts as a third party in the contract to receive the sum insured;

The beneficiary itself, who is neither the policyholder nor the insured person, but is appointed by the insured person to receive the insurance benefit (in the event of the death of the person insured under a contract in which no other beneficiary is named, the beneficiaries are the heirs of the insured person).

It should be noted that if the beneficiary is not the insured person, then this beneficiary appears in the insurance transaction solely at the will of the insured person, even if the insured person is not the policyholder. In this situation, the policyholder is a party to a personal insurance contract, by the will of which an insured person appears in the transaction, having the right to appoint a beneficiary. Moreover, this right is granted to the insured person who is not the policyholder, and, moreover, regardless of any influence from the latter. This circumstance is explained by the essence of personal insurance contracts, which consists in protecting the property interests of only one person, called the insured person.

Since the object of personal insurance (property interest) was mentioned above, the question of the insurable interest of the insured person, who is also the policyholder, as well as the insured person, who is a third party appointed by the policyholder, should be considered, i.e. about two insurance interesents.

To assume that the insured person has an insurable interest means to assume that there is an insurable interest in personal insurance contracts. In this regard, our point of view boils down to the fact that personal insurance must necessarily have an insurance interest, because the object of a personal insurance contract, like any other type of insurance, is to protect the property interests of persons interested in insurance. This conclusion follows from a number of norms of civil and insurance legislation. So, in particular, in paragraph 2 of Art. 1 of the Civil Code of the Russian Federation, it is determined that citizens (individuals) and legal entities acquire and exercise their civil rights by their own will and in their interest.

According to paragraph 1 of Art. 2 of the Law on insurance business the legislator has defined the concept of insurance as a relationship to protect the interests of individuals and legal entities in the event of certain insured events at the expense of funds formed by insurers from paid insurance premiums. As you can see, the norm of a special law devoted to insurance legal relations in general, regardless of the types of insurance, establishes that insurance is designed primarily to protect the property interests of individuals and legal entities. According to Art. 3 of the Law on Insurance Business, the purpose of organizing an insurance business is to ensure the protection of the property interests of individuals and legal entities. In a special norm - Art. 4 of the Law on Insurance Business, dedicated to insurance objects, it is determined that the objects of personal insurance can only be property interests and nothing else.

All of the above allows us to conclude that a personal insurance contract should be concluded with only one purpose - to protect the property interests of a certain insured person. Accordingly, the absence of the insured person in the personal insurance contract excludes the existence of the contract itself (Article 942 of the Civil Code of the Russian Federation), since the insured interest is excluded. Therefore, the establishment and definition of the insurance interest in the personal insurance contract is directly dependent on the presence or absence of the insured person in the contract.

Here it is necessary to make a reservation that in certain cases a personal insurance contract may be concluded in favor of the insured person, however, the policyholder is directly interested in concluding the contract, or, for certain material reasons, he is interested in concluding an insurance contract in favor of another insured person.

An example of such an interest is, say, the employer's desire to insure the life or health of its employees against industrial accidents. In cases where the insured person coincides with the policyholder, respectively, the insured person is the insured person.

When considering the legal status of the insured person in practice, the question arises whether the insured person is a figure of only personal insurance or this person can also participate in contracts property insurance... In the norms of insurance legislation, the insured person is to a greater extent considered a participant in personal insurance, and only in some of the norms there is a tendency to the fact that the insured person may also be present in property insurance.

In particular, in the Civil Code of the Russian Federation, the figure of the insured person is mentioned in seven norms, of which in four articles (Articles 939, 942, 956, 961) the insured person is mentioned exclusively as a participant in the personal insurance contract. In the other three norms (Articles 946, 955 and 963), the insured person is considered not only as a participant in personal insurance, but also as a participant in property insurance. In paragraph 1 of Art. 955 of the Civil Code of the Russian Federation, the legislator considers the insured person solely as a participant in property insurance, determining that if the liability of a person other than the time before the occurrence of the insured event replace it face to others by notifying the insurer in writing.

In principle, this approach of the legislator is quite rational, since the term "insured person", as well as other terms used in insurance ("insured", "beneficiary"), is used in general, covering both property insurance contracts and personal insurance contracts.

As for the use of the figure of the insured person in property insurance, it was noted above that this figure is involved in only one type of property insurance - insurance of liability for harm (Article 931 of the Civil Code of the Russian Federation). This is explained by the legal structure of the civil liability insurance contract for causing harm, which allows insuring the liability not only of the insured himself, but also of the persons on whom such liability may be imposed. Moreover, the legislator in paragraph 2 of Art. 931 indicates that the person whose risk of liability for causing harm is insured must be named in the insurance contract. The insured person is appointed in the contract of liability insurance for damage caused only by the policyholder.

In the considered type of insurance, the legal status of the insured person is less stable than in personal insurance contracts. This is due to the fact that in the contract of liability insurance for damage, the insured person can be replaced at any time before the occurrence of the insured event, which follows from clause 1 of Art. 955 of the Civil Code of the Russian Federation and for which it is enough to notify the insurer about the upcoming replacement of the insured person. Such an unstable position of the insured person in the insurance contract for civil liability for harm is explained by the peculiarity of the object of this type of property insurance.

The fact is that the insured person appears in the insurance contract for liability for harm at the will of the policyholder, which is due to his interest in averting possible future losses for the actions of the insured person. An example is the construction of Art. 1068 of the Civil Code of the Russian Federation, according to which entity bears responsibility for harm caused by his employee. In particular, the automobile plant, which employs a significant number of employees - drivers, has the right to insure the civil liability of these drivers operating vehicles (a source of increased danger) belonging to the automobile plant. After all, if the drivers of the car plant when using Vehicle cause property damage to anyone, then according to Art. 1068 of the Civil Code of the Russian Federation, this responsibility can be assigned directly to the auto plant as the owner of a source of increased danger. Therefore, by concluding insurance contracts, the auto plant insures, first of all, its liability as a liability of a legal entity, i.e. in their own insured interest, and not in the interest of drivers - insured persons who are replaceable during the period of validity of the insurance contract.

In practice, often when insuring liability for harm, the policyholder insures not his own liability, but the liability of another person. Obviously, the insured is prompted to do this by a property interest in averting possible losses from himself in the future for the actions of another person with whom the insured is associated with certain property relations.

The totality of the signs of the legal status of the insured person, discussed above, allows us to give some general description of the legal status of the insured person, taking into account the opinions and judgments in the insurance doctrine regarding the issue in question, which deserve some attention.

For example, V.S. Belykh and I.V. Krivosheev believe that the insured person is a natural person, in whose life an event caused by the insurance risk may occur, which is directly related to the person or life circumstances of this person... The purpose of establishing insurance legal relations with the participation of an independent figure of the insured person is to ensure the protection of the life and health of the insured person in the absence of the opportunity to use the provided protection personally. V this definition attention is drawn to the fact that V.S. Belykh and I.V. Krivosheev consider the insured person as an independent figure. Indeed, the independence of the insured person is determined by his unshakable position in the personal insurance contract, which excludes his replacement without obtaining his consent, as well as his right to independently appoint the beneficiary. The same cannot be said about the insured person participating in the insurance contract for liability for damage.

V.V. Shakhov believed that the insured under the life insurance contract is the person whose life the contract is concluded. This is a person whose life is at risk. In most insurance transactions, the policyholder and the insured are usually the same person. In cases where no coincidence occurs, the insured must also sign the policy (for death insurance), thus confirming in writing his consent to conclude an insurance contract for his own life. Here the thought of V.V. Shakhov about the need for the insured person to sign insurance policy, and only in case of death, if the insured person does not coincide with the policyholder.

There is no specific indication in the legislation about the need for the insured person to sign a personal insurance contract. Nevertheless, the legal status of the insured person, taking into account his rights and obligations determined by the legislator, presupposes the need for the insured person to sign a personal insurance contract (policy) if this insured person is not the policyholder. The fact is that the insured person in the personal insurance contract, who is a third party in the transaction, cannot be replaced without his consent, since the contract was concluded in favor of this particular person. That is, the insured person is the main participant in the personal insurance insurance transaction, about whose rights and obligations an agreement has been concluded. Accordingly, the insured person specified by the contract, before exercising his rights under the contract, must know the scope of his rights and obligations.

The essential rights of the insured person are his exclusive right to replace himself and the right to replace the beneficiary under a personal insurance contract. To exercise the stated rights and, accordingly, obligations under the contract, the insured person must accept the transaction, which is concluded in his interest. Otherwise, the concluded transaction will lose its legal meaning from the point of view of the insurance object and will lead to the following consequences.

Firstly, this is a possible abuse on the part of the policyholder, who may well be able to replace him with another person at any time without the consent of the insured person who is ignorant of the insurance transaction.

Secondly, the consequences of such actions on the part of the insured will lead to unjustified enrichment of the pseudo beneficiary.

Thirdly, the personal insurance contract will be used as a legal mechanism for concluding so-called schematic transactions covered by insurance, or sham transactions concluded for a purpose other than the purpose of protecting the property interests of a certain person from accidental events.

This, in fact, is the universality of the legal status of the insured person. Given this versatility, T.S. Martyanova, in her judgments, highlighted the most essential features of the legal status of the insured person in personal insurance, especially noting his independence in the selection and appointment of the beneficiary. In addition, T.S. Martyanova believes that the terms of specific personal insurance contracts may provide for both an independent figure of the insured person, occupying in this capacity the position of a third party, and the coincidence of the insured person with the insured and (or) the beneficiary. The policyholder can conclude an insurance contract in his favor, being in this case both the insured and the beneficiary. It is possible to conclude an agreement without specifying the beneficiary - then the insured person is considered the beneficiary (in case of his death, his heirs). The contract may also indicate a specific beneficiary in the presence of an insured person. The written consent of the insured person is required to conclude a personal insurance contract in favor of the policyholder or beneficiary if they do not coincide with the insured person.

T.S. Martyanova on the written consent of the insured person to change the beneficiary in the personal insurance contract once again confirms the inviolability of the insured person's position in the personal insurance contract. In fact, given right the insured person is enshrined in clause 2 of Art. 934 of the Civil Code of the Russian Federation, which requires the written consent of the insured person for these actions. Among other things, this rule follows from general provisions Of the Civil Code of the Russian Federation on the change of persons in obligations, when the debtor (in this case, the insurer) has the right to demand written proof of the rights of the new creditor (the insured or the beneficiary) to receive performance under the contract (Article 385 of the Civil Code of the Russian Federation). For this, in fact, the written consent of the insured person is required to transfer his rights to receive the insurance amount by another person.

M.I. Braginsky also believes that if someone else is not named as the beneficiary in the personal insurance contract, the person in whose favor the contract was concluded is the person insured under the contract, and in the event of his death, the heir of the insured person is recognized as the beneficiary. If the role of the person in favor of whom the contract was concluded is the policyholder himself or another person who is not the insured person, he must obtain written consent to conclude such a contract from the insured person.

Violation of the rule on obtaining written consent from the insured person makes it possible for this person to apply a judicial procedure to refute unauthorized actions related to the receipt of the insured amount by persons not agreed with the insured person.

It should be noted that such a stable legal position of the insured person, enshrined in modern insurance legislation, was noted already at the turn of the XIX-XX centuries. For example, the policy conditions of insurance for mixed types of life insurance, including in the event of death, that existed in the First Russian insurance company provided that the person who entered into an insurance contract with the company is called the insured; a person whose death or living up to a certain period of time entails the obligation of the company to pay the insured amount is called the insured, and the person entitled to receive the insured amount is called the beneficiary (§ 3). The policyholder, the insured and the beneficiary may be the same person or different persons. If the policyholder and the insured are different persons, the insurance contract can be concluded only with the written consent of the insured person, confirming his consent by signing together with the policyholder a declaration of insurance (§ 9).

Considering the legal status of insured persons, taking into account the above policy conditions of insurance, the classic of Russian civil law V.I. Serebrovsky has expanded the circle of persons who can be attracted as beneficiaries in personal insurance contracts. So, in particular, noting that the insured person is the person in whose life an event should occur that entails the obligation for the insurer to pay the insurance premium, V.I. Serebrovsky indicated that he could be the insured, the beneficiary and the fourth person. The fourth person named by V.I. Serebrovsky, this is the person who subsequently replaces the beneficiaries already appointed in the personal insurance contract.

Another representative of the classics of Russian civil law - V.I. Sinaisky spoke only about the presence of three persons in personal insurance contracts, but at the same time, like V.I. Serebrovsky, attributed to third parties all those who could be appointed to receive insurance payments. It should be added that the possibility of attracting third parties V.I. Sinaisky determined that the latter must have an interest in the well-being of the life and health of the insured. In particular, this author noted that by persons other than the insurer and the policyholder obliged to pay insurance premium, there may also be third parties: the insured person, in respect of whom the event provided for in the contract should occur, and the beneficiary - the person to whom the sum insured must be paid. This means that insurance of persons is permissible in favor of a third party (beneficiary) and that it is even possible to insure someone else's life or ability to work (the insured person) in their favor. The latter option is permissible only where the policyholder has a special interest, for example, the insurance of the husband's wife or his ability to work.

The outlined points of view of the classics of Russian civil law make it possible to more clearly distinguish between the policyholder, the insured person and the beneficiary in personal insurance contracts:

- insured- this is a person who concludes an insurance contract and pays an insurance premium, who at the same time can act as an insured person;

- insured person- this is the main person in the personal insurance contract, in whose interests the personal insurance contract is concluded, whose life and health are insured;

- beneficiary- this is the person who is the beneficiary of the personal insurance contract, who is appointed to receive the insurance benefit; the beneficiary can be the insured person who is the policyholder, or the insured person appointed by the policyholder, or a third person appointed by the insured person to receive the insurance benefit.

It should be noted that the insured person and the beneficiary in personal insurance contracts may be third parties.

Very interesting are the arguments on this subject by N.S. Kovalevskaya, who believes that in cases where the policyholder and the insured person coincide, there is no need to talk about the features legal regulation the position of these persons. The peculiarities of the legal status of the insured person are manifested in cases when he is not the policyholder in personal insurance. The legislator assumes that the insured person or his heirs, in the event of his death, are the beneficiaries, unless otherwise specified in the contract.

These views in relation to legal status parties to a personal insurance contract, except for the insurer, are fully consistent with the provisions of modern insurance legislation. In particular, according to Art. 934 of the Civil Code of the Russian Federation in personal insurance contracts by subject composition there are always three figures - this is the policyholder itself, the insured person and the beneficiary. Moreover, the combination of these figures can be very diverse, depending on the terms of the contract. But the figure of the insured person in personal insurance contracts, in whatever combination it may be, always remains a priority. It is appropriate to cite here the arguments of P.P. Tsitovich, who, based on an analysis of the varieties of personal insurance contracts, determined the relationship between the policyholder, the insured and the beneficiary as follows.

Life insurance, considered P.P. Tsitovich, may meet various interests and goals: a) the policyholder intends to ensure his old age; b) the policyholder intends to provide himself or another, upon reaching the insured age, capital or income. The insured here is the one who must reach the insurance age, and the beneficiary is either the policyholder himself or the insured.

Death insurance, like survival insurance, can be combined in various ways: a) mutual insurance of two persons is possible, each of whom - the insured and the beneficiary - is insured in favor of the other; the insurer is obliged to pay insurance capital or insurance income to the one who outlives the other (this is survival insurance); b) insurance can be conjunctim in the sense that the insurer is obliged to pay capital or pay income to a third party as a beneficiary only after the death of both insured persons. Further P.P. Tsitovich also distinguishes insurance for experiencing without reciprocity: one person is insured, the other is the beneficiary; the insurer is obliged to pay the insurance capital to the beneficiary or pay him income, but on the condition that the beneficiary outlives the insured.

In the above P.P. In the Tsitovich example (b), as in many other cases of concluding personal insurance contracts, in practice, the question often arises, should only individuals always act as insurers, or can they also be legal entities? Despite the fact that this question also belongs to the category of questions about the combination of the policyholder, the insured and the beneficiary, nevertheless, such a combination is present either between individuals or between legal entities and individuals.

In particular, individuals, being insured, may well simultaneously act as insured persons. This happens when they insure their own life or health. Or, for example, another situation, quite often encountered in practice, when an insured individual does not insure his own life and health or civil liability, but the corresponding interests of another person, who is the insured person.

As for legal entities, in contracts of any type of insurance, they can only act as policyholders, while as insured they insure the life and health or liability of their employees, who in contracts act as insured persons. Such insurance contracts can be considered as contracts in favor of third parties (Article 430 of the Civil Code of the Russian Federation), since in such personal insurance contracts the right of claim (obtaining performance under the contract) is possessed not by the insured - a legal entity, but by the insured person or the beneficiary appointed by him.

In civil liability insurance contracts for causing harm, the right of claim is also possessed by a third party - the victim who has been harmed by the actions of the insured person.

The legal status of insured persons in all personal insurance contracts has one more legislative feature, inherent in contracts of this type only. We are talking about the provisions of paragraph 1 of Art. 927 of the Civil Code of the Russian Federation, which determines that personal insurance contracts are public contracts.

The specificity of public contracts is that commercial organizations, including insurance, are not entitled to give preference to one person over others in relation to the conclusion of a public contract, except as otherwise provided by law or other legal acts. Since insurance legislation does not provide otherwise, personal insurance contracts must be standard, with the exception of the essential conditions provided for in paragraph 2 of Art. 942 of the Civil Code of the Russian Federation. You cannot, for example, compose programs health insurance for each insured person individually. Equally, it is impossible to establish different percentages for insured persons on a cumulative type of life insurance investment income for the accumulated part of the insured amount.

Of particular importance is the right of the insured person to the insurance secret, proclaimed by Art. 946 of the Civil Code of the Russian Federation, the essence of which is that insurers are not entitled to disclose information obtained by them as a result of their professional activities about the policyholder, the insured person and the beneficiary, in particular, information about the state of health and the property status of these persons. For violation of the secrecy of insurance, the insurer, depending on the type of violated rights and the nature of the violation, is liable in accordance with the rules provided for in Art. 139 and 150 of the Civil Code of the Russian Federation.

To ensure all the above rights and powers of the insured person, the legislator introduced into personal insurance the principle of individualization of the insured person in the insurance contract, which is quite reasonably mentioned by Yu.A. Sleptukhov and E.F. Dyuzhikov, believing that the insured person in personal insurance contracts in mandatory must be specified in the contract.

The need for individualization of the insured person is primarily due to the insurance coverage of a completely specific natural person in order to prevent the replacement of this person without his consent. That is why when concluding a personal insurance contract between the policyholder and the insurer, an agreement must be reached on a specific and specific insured person. This rule belongs to the category of important provisions of the personal insurance contract and is an essential condition of the contract, which is directly defined in paragraph 2 of Art. 942 of the Civil Code of the Russian Federation, according to which, when concluding a personal insurance contract, an agreement on the insured person must be reached between the insured and the insurer.

The logical continuation of this rule is another rule established by the legislator, namely Art. 945 of the Civil Code of the Russian Federation, according to which insurers are given the right to examine insured persons to assess the likelihood of an insured event. In addition to this purpose, the need for such an event is also associated with the identification of the insured, since it is impossible to examine the insured person if it is not determined by individual characteristics, especially health.

It should be noted that the legislator's requirement to indicate the insured persons in insurance contracts applies not only to voluntary types of personal insurance, but also to compulsory ones. In this regard, Art. 935 of the Civil Code of the Russian Federation establishes that by law the persons indicated in it may be obliged to insure the life, health or property of other persons specified in the law in the event of harm to their life, health or property. Therefore, a deviation from these rules may lead to the recognition of the concluded insurance contracts as invalid as inappropriate to the requirements of Art. 942 of the Civil Code of the Russian Federation.

In relation to the above, it should also be noted that in accordance with Art. 4 of the Law on Insurance Business, the objects of personal insurance are property interests associated with following conditions:

The survival of citizens to a certain age or term; death of the insured person; the onset of other events in the life of citizens (life insurance);

Causing harm to life and health of citizens; providing them medical services(insurance against accidents and illnesses, medical insurance).

The designated insurance objects indicate, first of all, that life, health, working capacity or pension benefits are an integral benefit that is inextricably linked with a specific person - an individual. Respectively, insurance relationship are subject to establishment only in the interests of a specific natural person. That is why the requirement of the law that an agreement on the insured person must be reached between the policyholder and the insurer is designed to provide insurance protection for a specific individual, which requires the designation of his individually defined characteristics in the contract. Among other things, this is evidenced by the imperious and imperative nature of the presentation by the legislator of this condition of the insurance contract (meaning, according to the legal technique, expressed in the form "should be").

The provisions of the considered norm of the Civil Code of the Russian Federation are strengthened by Art. 422 of the Code, which stipulates that the contract must comply with the rules binding on the parties, established by law(in this case - Art. 942 of the Civil Code of the Russian Federation) and other legal acts (peremptory norms) in force at the time of its conclusion.

The conclusion of a personal insurance contract without taking into account the mandatory prescriptions of the above-mentioned norms of the law entails its recognition by the court as invalid according to the rules of Art. 168 of the Civil Code of the Russian Federation, since a transaction that does not meet the requirements of the law or other legal acts is invalid.

Investigating the issue of the need to individualize the insured person in personal insurance contracts, V.S. Belykh and I.V. Krivosheev pointed out that the individualization of the insured person is also a qualifying feature that distinguishes him from the beneficiary, which can be represented in the insurance obligation by indicating some generic features. The figure of the insured person requires full individualization, provided by the indication of his last name, first name and patronymic.

It is obvious that it is precisely due to this circumstance that the legislator, in order to determine the mandatory signs of an insured event (case) - probability and chance, obliged the insured to inform the insurer when concluding a contract about circumstances that are significant for determining the probability of an insured event (Article 944 of the Civil Code of the Russian Federation), if at the same time, corresponding this obligation of the policyholder with the right of the insurer to conduct an examination of the insured person at the time of the conclusion of the insurance contract to assess the actual state of his health (clause 2 of article 945 of the Civil Code of the Russian Federation).

Accordingly, the insurer will be able to exercise this right only if a specific individual is identified and known who is subject to examination for assessment. insurance risk... That is why the insured individual must be named in the personal insurance contract. This rule remains in the case of the replacement of the insured person, since it is impossible to replace the insured person without the consent of the insurer (clause 2 of article 956 of the Civil Code of the Russian Federation).

The outlined procedure for assessing insurance risk is intended to provide the insurer with the opportunity to objectively assess the degree of risk in relation to a particular insured person, since in any group of people of a certain gender and age, L.N. Klochenko, some are more at risk of death or illness than others. So, in connection with professional activity or due to the peculiarities of social life, some people experience a deterioration in health, others even have a dying state, while still others have quite good health (state of health), although only a few can consider themselves absolutely healthy.

For example, a feature of health insurance is that the policyholder (insured person) receives medical care in the form of treatment or the necessary preventive medical measures, therefore, the payment for this type of personal insurance should be directed solely to pay for medical expenses associated with the treatment of persons who are named in the insurance contract. ... Accordingly, the pre-insured state of health of an individual is essential for the insurer.

It should also be noted that since the health of a specific insured person is insured, insurance payments in the form of payment for medical expenses should be carried out only when the treatment of this particular person was carried out, otherwise insurance payments can be recognized as illegal, they are subject to return by the medical institution. Therefore, if under the contract the insured person is not the policyholder himself, but the person appointed by him, this insured person must personally use the medical services under the relevant medical program, he has no right to transfer this opportunity to another person not named in the contract.

It was noted above that if the insured are legal entities, then the insured are, as a rule, their employees. In this regard, it is necessary to take into account the peculiarity of replacing the insured persons - employees of the enterprise- the insured, which in practice happens quite often.

As a rule, the need for this replacement is due to the fact that some employees - insured persons are fired, while others are re-employed. Due to these circumstances, enterprises try to insure the life and health or civil liability of newly hired workers, but not again, but by replacing them. To do this, insurers who are employers must take into account that, without the consent of insured persons - retired employees, automatic replacement of these persons with newly hired employees is not allowed by law (clause 2 of Art. 955 of the Civil Code of the Russian Federation).

In cases where the life and health of employees of the enterprise, who are insured under a personal insurance contract, is insured against accidents, including at work, the sum insured (security) is payable only to these persons. If, in the event of the death of the insured person, the contract does not contain an indication of a beneficiary other than the employee of the enterprise, the sum insured (security) is payable to the heirs of the insured person after they accept the inheritance. Such beneficiaries are the heirs, called to inheritance by will or by law, in the manner prescribed by Ch. 62 and 63 of the Civil Code of the Russian Federation.

At the beginning of the twentieth century. when insuring workers, the conditions for paying insurance compensation in the event of the death of a worker at work were somewhat different, since they allowed the payment of the sum insured to the relatives of the deceased. In particular, in accordance with Art. 26 of the Law of June 23, 1912 "On Insurance of Workers", in the event of the death of the victim resulting from an accident, no later than two years from the date of this incident, the insurance partnership was obliged to: reimburse the costs of burying the deceased within the limits established in the regulation on the provision of workers in case of illness, and to assign pensions specified in Art. 27 of the Law to the family members of the deceased. Article 27 provided that widows should be paid in the amount of 1/3 of their salary, and for life or until a new marriage, and for children up to the age of 15, each in the amount of 1/6 during the lifetime of one of the parents and 1/4 of full orphans * ( 166). Despite the fact that the law stipulates compulsory social insurance of workers, the rule on the implementation of insurance payments to close relatives of a deceased worker, including heirs, seems fair.

There is one very significant feature in the procedure for replacing the beneficiary appointed by the insured person. If the beneficiary has fulfilled any of the obligations under the insurance contract or submitted a claim for insurance payment, then the replacement of this beneficiary is prohibited by law (Article 956 of the Civil Code of the Russian Federation).

The procedure for replacing the insured person in insurance contracts for the risk of liability for causing harm also has its own peculiarities (Article 931 of the Civil Code of the Russian Federation). In particular, Art. 956 of the Civil Code of the Russian Federation, it is determined that in the case when the liability of a person other than the policyholder is insured under the insurance contract for the risk of liability for harm, the latter has the right, unless otherwise provided by the contract, at any time before the insured event to replace this person with another, notifying in writing about this insurer.

The formalized procedure for replacing the insured person introduced by the legislator (written notification of the insurer) is due to the fact that the specific figure of the insured person specified in the insurance contract for the risk of liability for harm is essential for the insurer. This is due to the need for the insurer to conduct a procedure to assess risk circumstances and, accordingly, to calculate the insurance premium.

In particular, when concluding an insurance contract of the type in question, the policyholder, naming a specific insured person in the contract, is obliged in accordance with Art. 944 of the Civil Code of the Russian Federation to inform the insurer all information about this person, directly related to his professional or other other activities. For example, if an enterprise insures its responsibility for the actions of an employee, then it is obliged to inform the insurer of the individually defined qualities and characteristics of this employee - his professional skills, work experience, education, etc.

The information received from the policyholder will allow the insurer to assess the insurance risk and then make a decision to conclude an insurance contract, linking the insurance risk with a specific insured person.

Violation of the procedure for informing the insurer about the upcoming replacement of the insured person may deprive the latter of the opportunity to assess the insurance risk associated with the professional characteristics of the new insured person and, as a result, lead to early termination of the insurance contract on the initiative of the insurer according to the rules of paragraph 3 of Art. 959 of the Civil Code of the Russian Federation.

The fact is that for the insurer the slightest change in the terms of the insurance contract associated with a change in the insurance risk is essential, since the correct assessment of the insurance risk allows the insurer, taking into account the results of the assessment, to take all the necessary measures to ensure coverage of this risk. We are talking, in particular, about carrying out the necessary preventive measures, as well as measures related to the increase in insurance reserve fund to cover the insured risk, taking into account the circumstances that increase the risk.

It was mentioned above that in the contracts of civil liability insurance for causing harm, the legislator granted the policyholder the right to freely replace the insured persons. This circumstance, among other things, also testifies to the fact that in the considered insurance structure, only the policyholder has an insurable interest. The interest of the policyholder in this case is due to the possibility of imposing property liability on him for the actions of the insured person. If, for example, harm is caused by an employee of a legal entity - the owner of a source of increased danger, then in accordance with Art. 1068 of the Civil Code of the Russian Federation, a legal entity must compensate for harm caused by its employee in the performance of labor (official, official) duties. Consequently, not an employee, but a legal entity must compensate the victim. Therefore, the legal entity is interested in the fact that its employee does not harm anyone, so as not to incur the costs of reimbursing this harm in the future.

In addition to legal entities- for employers, civil liability may be imposed on parents for the actions of minor children (Article 1073 of the Civil Code of the Russian Federation), on owners or other legal owners for harm caused as a result of the exploitation of sources of increased danger (Article 1079 of the Civil Code of the Russian Federation), etc. ... Therefore, the named persons have an interest in insuring their civil liability for the actions of other persons who may be assigned this responsibility. The specified other persons in the contracts of insurance of civil liability for causing harm are referred to as the insured persons, while not being a party to the insurance contract.

It should be noted that in civil liability insurance contracts, the insured person, who is not the policyholder, also has a certain interest in insurance. This interest of the insured person can be called an indirect interest in relation to the main insurable interest of the person responsible for causing harm. The indirect interest of the insured person cannot form the foundation of the insurance structure.

The interest of the insured person who is not the policyholder is to avoid the occurrence of a dangerous event- an insured event as an unpleasant phenomenon in one's life. But this interest is in no way tied to the negative property consequences that may arise for the insured - the owner of the source of increased danger, who insured the liability of the insured person.

Among other things, it must be borne in mind that the insured person, who is not the policyholder, enters into an insurance transaction solely at the will of the policyholder and depending on his interest. In cases where the insured person has his own interest, for example, as the owner of a source of increased danger, which does not depend on the interest of the policyholder, he has the right to take a more stable position of the policyholder in the transaction.

Consequently, in the contracts of liability insurance for causing harm between the policyholder and the insured person, there is a difference in interests - the policyholder is the direct owner of the subjective insured interest, which, according to a specific insurance contract, belongs only to him, and the insured person is the owner of an indirect interest, since upon the occurrence of an insured event he may be charged with the burden of compensation for damage, but only in an amount exceeding the insurance coverage, or by way of recourse.

By general rule, the insured person, who is not the policyholder, directly involves the policyholder at his own expense and without the initiative of the insured person into the current insurance contract, with the insured interest of the policyholder indicated therein. In this case, the policyholder does not pursue the goal of transferring his insured interest to the insured person, since in the contract of the type in question, the insured person is not a beneficiary due to the fact that he is the person who is harmed.

For the policyholder, the purpose of including the insured person in the insurance contract under consideration is to provide insurance protection, first of all, to his property interests associated with an increase in the risk of an insured event, and not to protect the interests of the insured person. Moreover, it is not advisable for the insured person to enter into a valid insurance contract with his own interest, with the insurable interest of the policyholder existing in the contract, since he has the right to conclude an insurance contract as the policyholder.

Taking into account the foregoing, we believe that the insured person appointed by the policyholder in the contracts of the type of insurance under consideration does not always have an insurable interest.

When insuring civil liability for harm to policyholders, it must be borne in mind that if the harm is caused by deliberate actions of the insured persons or the policyholder himself, the insurers have the right to refuse to pay insurance compensation. This provision is determined by clause 1 of Art. 963 of the Civil Code of the Russian Federation. Moreover, this rule applies only to compensation for property damage and does not cover compensation for harm to the life and health of victims, because the provisions of clauses 2 and 3 of the specified rule of the Civil Code of the Russian Federation do not exempt the insurer from covering these losses, even if they are caused by deliberate actions or gross negligence of the policyholder or the insured persons.

As for the presence of an insurable interest of the insured person in personal insurance contracts, this fact is presumed by the law, since the figure of the insured person is important for the insurance legal relationship established within the framework of personal insurance. And, as V.S. Belykh and I.V. Krivosheev, this is confirmed by the obligation to obtain the prior consent of the insured person for the presence of another beneficiary or his replacement in the insurance legal relationship (clause 2 of article 934 of the Civil Code of the Russian Federation). The latter testifies that the difference in the legal status of the insured person, depending on the types of insurance, also lies in the fact that in personal insurance the insured person always has an insurable interest, and in insurance contracts for civil liability for harm, the insured interest of the insured person is only in cases where this person is at the same time the policyholder.

Policyholder - a legal or capable individual who has entered into an insurance contract with an insurer and pays him an insurance premium (insurance premium) for transferring responsibility for bearing risk.

Insured - 1) in personal insurance - an individual whose life, health and ability to work are the object of insurance coverage. So, when insuring against an accident and illness, the insured will be the subject, the accident with whom and the illness of whom become the insured events of the insurance contract, i.e. events upon the occurrence of which the insurer makes insurance payments; 2) in property insurance and liability insurance - an individual or legal entity in relation to whom an insurance contract has been concluded. So, when insuring household property, the insured is a person whose property insurance an insurance contract has been concluded.

Beneficiary - an individual or legal entity appointed by the policyholder to receive insurance payments under insurance contracts.

Policyholders, insured persons and beneficiaries

By the insured will be a party in an insurance legal relationship who undertakes to pay the insurer the stipulated amount (insurance premium), in return for which it acquires the right to demand the payment of insurance compensation (sum insured) This right of claim may belong to the beneficiary if the insurance was made in favor of a third party.

The legal status of the insured is determined by the norms of the Civil Code of the Russian Federation and the law "On the organization of insurance business in the Russian Federation".

Policyholders are persons who have entered into insurance contracts with insurers or who are policyholders by virtue of law. The policyholders can be legal entities or capable individuals.

The property is insured in favor of a person who has a contractual interest in preserving his property. This person will be either the policyholder or the insured, or beneficiary. When determining the existence of an interest, the fact is taken into account whether the owner will be the person who insured the property for their benefit. If not, does the policyholder bear the risk of accidental loss of property to its owner? When m, it is necessary to take into account the circumstances of the destruction of property (intent, negligence, actions of third parties, force majeure, etc.)

Insured person- ϶ᴛᴏ a person whose interests will be the object of insurance. The insured person will not be an independent participant in the insurance, but it is in relation to the insured person that the insured event must occur.

The rules for appointing and replacing an insured person differ depending on the type of insurance contract.

In a property insurance contract, only the beneficiary can be the insured person. This is due to the fact that with property insurance, the person whose property is insured must have an interest in the safety of his property.

Under the contract of insurance of the risk of liability for causing harm, it is permissible to have insured persons who are neither the policyholder nor the beneficiary.

Under the contract of insurance of the risk of liability for violation of the contract, only the risk of liability of the policyholder himself can be insured and only in favor of the party to whom, under the terms of his contract, the policyholder must bear the responsibility.

Under an entrepreneurial risk insurance contract, the entrepreneurial risk may only be insured by the policyholder himself and only in his favor. The appointment of the insured person is inadmissible here - otherwise it will make the insurance contract null and void.

After all, if the insured person is an entrepreneur, then someone bears the costs of insuring his activities. Material published on http: // site
This is contrary to the point entrepreneurial activity, conducted independently, at the ϲʙᴏth risk and ϲʙᴏim dependency.

Moreover, such insurance can be viewed as a kind of gift, which is used to a limited extent in business relationships. Therefore, it is impossible to single out the insured person when insuring business risk.

Beneficiary there will be a person in favor of whom the insurance contract has been concluded, who receives insurance compensation or the sum insured.

As a rule, the insurance contract directly specifies the beneficiary or determines the conditions under which other persons become the beneficiary (for example, the heirs of the insured person under the personal insurance contract). liability for harm)

The beneficiary, as a person in whose favor the insurance contract has been concluded, has the right to receive insurance benefits. Excluding the above, the beneficiary has other rights aimed at ensuring the receipt of the insurance payment: the right to fulfill any obligation under the contract, the right to file a claim against the insurer to issue insurance compensation or the sum insured.

Insured person

The insured person, as a figure participating in insurance legal relations, is most often mentioned in personal insurance contracts, since in accordance with paragraph 2 of Art. 934 of the Civil Code of the Russian Federation, these contracts are recognized as concluded in favor of the insured person, if another person is not named as the beneficiary in the contract.

With all the variety of personal insurance contracts, the legislator considers the insured person to be the beneficiary of them, which should only be the natural person named in the insurance contract. The need to specify the insured person in the contract is primarily due to the purpose of personal insurance, which is to protect the property interests of the policyholder or another citizen named in the contract.

In particular, the legislator in Art. 934 of the Civil Code considers the insured person in two versions. First of all, as a direct policyholder, ᴛ.ᴇ. when the policyholder enters into a personal insurance contract in his favor, linking the insured event to his personality. Secondly, as a third party named in the contract of a citizen (insured person), linking the insured event with the personality of this person. In this case, two persons act on the side of the creditor in the insurance obligation: the policyholder himself, who is a party to the insurance contract, and a third person - the insured person, whose life and health are insured.

Another feature of the legal status of the insured person is that the legislator considers him as the manager of the insurance payment. This is due to the fact that the event, in the event of the occurrence of which personal insurance is carried out, must occur in the life of only the insured person. For this reason, performance under a personal insurance contract depends on the will of the insured person.

The foregoing allows us to conclude that a personal insurance contract should not be concluded without the participation of the insured person. It is for this reason that the legislator establishes that the right to receive the sum insured belongs to the person in whose favor the insurance contract has been concluded, designating him as the beneficiary at the same time (clause 2 of article 934 of the Civil Code of the Russian Federation).

The figure of the beneficiary in personal insurance, as well as the figure of the insured, is universal. The following persons may act as a beneficiary in a personal insurance contract:

An insured person who does not coincide with the policyholder, but acts as a third party in the contract to receive the sum insured;

It should be noted that if the beneficiary is not the insured person, then this beneficiary appears in the insurance transaction solely at the will of the insured person, even if the insured person is not the policyholder. In this situation, the policyholder is a party to a personal insurance contract, by the will of which an insured person appears in the transaction, having the right to appoint a beneficiary. Moreover, this right is granted to an insured person who is not a policyholder, and, moreover, regardless of any influence from the latter. This circumstance is explained by the essence of personal insurance contracts, which consists in protecting the property interests of only one person, called the insured person.

Since it was mentioned above the object of personal insurance (property interest), the question of the insurable interest of the insured person, who is simultaneously the insured, as well as the insured person, who is a third person appointed by the insured, ᴛ.ᴇ, should be considered. about two insurance interesents.

To assume that the insured person has an insurable interest means to assume that there is an insurable interest in personal insurance contracts. In this regard, our point of view boils down to the fact that personal insurance must necessarily have an insurance interest, because the object of a personal insurance contract, like any other type of insurance, is to protect the property interests of persons interested in insurance. This conclusion follows from a number of norms of civil and insurance legislation. So, in particular, in paragraph 2 of Art. 1 of the Civil Code of the Russian Federation determines that citizens (individuals) and legal entities acquire and exercise their civil rights by their own will and in their interest.

According to paragraph 1 of Art. 2 of the Law on Insurance, the legislator has defined the concept of insurance as a relationship to protect the interests of individuals and legal entities in the event of certain insured events at the expense of funds formed by insurers from paid insurance premiums. As you can see, the norm of a special law devoted to insurance legal relations in general, regardless of the types of insurance, establishes that insurance is designed primarily to protect the property interests of individuals and legal entities. In accordance with Art. 3 of the Law on Insurance Business - the purpose of organizing an insurance business is to ensure the protection of the property interests of individuals and legal entities. In a special norm - Art. 4 of the Law on Insurance Business, dedicated to the objects of insurance, it is determined that the objects of personal insurance are only property interests and nothing else.

All of the above allows us to conclude that a personal insurance contract should be concluded with only one purpose - to protect the property interests of a certain insured person. Accordingly, the absence of the insured person in the personal insurance contract excludes the existence of the contract itself (Article 942 of the Civil Code of the Russian Federation), since the insured interest is excluded. For this reason, the establishment and definition in the personal insurance contract of the insured person is directly dependent on the presence or absence of the insured person in the contract.

Here, a reservation should be made that in certain cases a personal insurance contract can be concluded in favor of the insured person, however, the policyholder is directly interested in concluding the contract, or, for certain material reasons, he is interested in concluding an insurance contract in favor of another insured person ...

An example of such an interest is, say, the employer's desire to insure the life or health of its employees against industrial accidents. In cases where the insured person is the same as the policyholder, the insured person is accordingly the insurance intercessor.

When considering the legal status of the insured person in practice, the question arises whether the insured person is a figure of only personal insurance or this person can also participate in property insurance contracts. In the norms of insurance legislation, the insured person is more perceived as a participant in personal insurance, and only in some of the norms there is a tendency to the fact that the insured person may also be present in property insurance.

In particular, in the Civil Code of the Russian Federation, the figure of the insured person is mentioned in seven norms, of which in four articles (Articles 939, 942, 956, 961) the insured person is mentioned exclusively as a participant in the personal insurance contract. In the other three norms (Articles 946, 955 and 963), the insured person is considered not only as a participant in personal insurance, but also as a participant in property insurance. In paragraph 1 of Art. 955 of the Civil Code of the Russian Federation, the legislator considers the insured person exclusively as a participant in property insurance, determining that, if under the insurance contract for the risk of liability for harm (Article 931), the liability of a person other than the policyholder is insured, the latter is entitled, if otherwise is not provided for by the contract, at any time before the occurrence of the insured event, replace this person with another by notifying the insurer in writing.

In principle, this approach of the legislator is quite rational, since the term "insured person", as well as other terms used in insurance ("insured", "beneficiary"), is used in a generalized manner, covering both property insurance contracts and personal insurance contracts.

As for the use of the figure of the insured person in property insurance, it was noted above that this figure is involved in only one type of property insurance - insurance of liability for harm (Article 931 of the Civil Code of the Russian Federation). This is explained by the legal structure of a civil liability insurance contract for causing harm, which allows insuring the liability not only of the policyholder himself, but also of the persons on whom such liability should be imposed. Moreover, the legislator in paragraph 2 of Art. 931 specifies that the person whose risk of liability for causing harm is insured must be named in the insurance contract. The insured person is appointed in the contract of liability insurance for damage caused only by the insured.

In the considered type of insurance, the legal status of the insured person is less stable than in personal insurance contracts. This is due to the fact that in the contract of liability insurance for causing harm, the insured person must be replaced at any time before the occurrence of the insured event, which follows from paragraph 1 of Art. 955 of the Civil Code of the Russian Federation and for which it is enough to notify the insurer about the upcoming replacement of the insured person. Such an unstable position of the insured person in the civil liability insurance contract for causing harm is explained by the peculiarity of the object of this type of property insurance.

The fact is that the insured person appears in the insurance contract for liability for causing harm at the will of the policyholder, which is due to his interest in averting possible future losses for the actions of the insured person. An example is the construction of Art. 1068 of the Civil Code of the Russian Federation, according to which a legal entity is liable for harm caused by its employee. In particular, the automobile plant, which employs a significant number of employees - drivers, has the right to insure the civil liability of these drivers operating vehicles (a source of increased danger) belonging to the automobile plant. After all, if the drivers of the car plant, when using vehicles, cause property damage to someone, then according to Art. 1068 of the Civil Code of the Russian Federation, this responsibility should be assigned directly to the auto plant as the owner of a source of increased danger. For this reason, by concluding insurance contracts, the auto plant insures first of all its liability as the liability of a legal entity, ᴛ.ᴇ. in their own insured interest, and not in the interest of the drivers - the insured persons who are replaceable during the validity period of the insurance contract.

In practice, often when insuring liability for harm, the policyholder insures not his own liability, but the liability of another person. Obviously, the policyholder is prompted to do this by a property interest in averting possible losses from himself in the future for the actions of another person with whom the policyholder is associated with certain property relations.

The set of signs of the legal status of the insured person, discussed above, allows us to give some general characteristics the legal status of the insured person, taking into account the opinions and judgments in the insurance doctrine regarding the issue under consideration, which deserve some attention.

So, for example, V.S. Belykh and I.V. Krivosheev believe that the insured person is a natural person in whose life an event caused by the insurance risk may occur, which is directly related to the person or life circumstances of this person. The purpose of establishing insurance legal relations with the participation of an independent figure of the insured person is to ensure the protection of the life and health of the insured person in the absence of the opportunity to use the provided protection personally * (154). In this definition, attention is drawn to the fact that V.S. Belykh and I.V. Krivosheev consider the insured person as an independent figure. Indeed, the independence of the insured person is determined by his unshakable position in the personal insurance contract, which excludes his replacement without obtaining his consent, as well as his right to independently appoint the beneficiary. The same cannot be said about the insured person participating in the insurance contract for liability for damage.

V.V. Shakhov believed that the insured under the life insurance contract is the person whose life the contract is concluded. This is a person whose life is at risk. In most insurance transactions, the policyholder and the insured are usually the same person. In cases where a match does not occur, the insured must also sign the policy (in case of death insurance), thus confirming in writing his consent to conclude an agreement on insurance of his own life * (155). Here the idea of V.V. Shakhov about the extremely importance of signing an insurance policy by the insured person, and only in case of death, if the insured person does not coincide with the insured, is of interest.

There is no specific indication in the legislation about the extremely importance of the insured person signing a personal insurance contract. Nevertheless, the legal status of the insured person, taking into account his rights and obligations determined by the legislator, presupposes that it is extremely important for the insured person to sign a personal insurance contract (policy) if the insured person is not the policyholder. The fact is that the insured person in the personal insurance contract, who is a third party in the transaction, cannot be replaced without his consent, since the contract was concluded in favor of this particular person. That is, the insured person is the main participant in the personal insurance insurance transaction, about whose rights and obligations an agreement has been concluded.
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Accordingly, the insured person determined by the contract, before exercising his rights under the contract, must know the scope of his rights and obligations.

First of all, this is a possible abuse on the part of the policyholder, who may well be able to replace him with another person at any time without the consent of the insured person who is not aware of the insurance transaction.

Secondly, the consequences of such actions on the part of the insured will lead to unjust enrichment of the pseudo beneficiary.

Thirdly, the personal insurance contract will be used as a legal mechanism for concluding so-called scheme transactions covered by insurance, or sham transactions concluded for a purpose other than the purpose of protecting the property interests of a certain person from accidental events.

This, in fact, is the universality of the legal status of the insured person. Given this versatility, T.S. Martyanova, in her judgments, highlighted the most essential features of the legal status of the insured person in personal insurance, especially noting his independence in the selection and appointment of the beneficiary. At the same time, T.S. Martyanova believes that the terms of specific personal insurance contracts may provide for both an independent figure of the insured person, occupying in this capacity the position of a third party, and the coincidence of the insured person with the insured person and (or) the beneficiary. The policyholder can conclude an insurance contract in his favor, being in this case both the insured and the beneficiary. It is possible to conclude an agreement without specifying the beneficiary - then the insured person is considered the beneficiary (in case of his death, his heirs). The contract must also indicate the specific beneficiary in the presence of the insured person. It is extremely important to conclude a contract of personal insurance in favor of the insured or the beneficiary, if they do not coincide with the insured person, the written consent of the insured person * (156).

T.S. Martyanova on the written consent of the insured person to change the beneficiary in the personal insurance contract once again confirms the inviolability of the insured person's position in the personal insurance contract. In fact, this right of the insured person is enshrined in paragraph 2 of Art. 934 of the Civil Code of the Russian Federation, which requires the written consent of the insured person for these actions. Among other things, this rule follows from the general provisions of the Civil Code of the Russian Federation on the change of persons in obligations, when the debtor (in this case, the insurer) has the right to demand written proof of the rights of the new creditor (insured or beneficiary) to obtain performance under the contract (Art. 385 of the Civil Code of the Russian Federation). For this, in fact, it is extremely important the written consent of the insured person to transfer his rights to receive the insurance amount by another person.

M.I. Braginsky also believes that if someone else is not named as the beneficiary in the personal insurance contract, the person in whose favor the contract was concluded is the person insured under the contract, and in the event of his death, the heir of the insured person is recognized as the beneficiary. In the event that the role of the person in whose favor the contract is concluded is the policyholder himself or another person, who is not the insured person, it is extremely important for him to obtain written consent to conclude such a contract from the insured person * (157).

It should be noted that such a stable legal position of the insured person, enshrined in modern insurance legislation, was noted already at the turn of the XIX-XX centuries. For example, the policy conditions of insurance for mixed types of life insurance, incl. in the event of death, those that existed in the First Russian Insurance Company provided that the person who entered into an insurance contract with the company is called the insured; a person whose death or living up to a certain period of time entails the obligation of the society to pay the insured amount is usually called the insured, and the person entitled to receive the insured amount is the beneficiary (§ 3). The policyholder, the insured and the beneficiary are the same person or different persons. If the policyholder and the insured are different persons, the insurance contract must be concluded only with the written consent of the insured person, confirming his consent by signing together with the policyholder an announcement of insurance (§ 9) * (158).

Considering the legal status of insured persons, taking into account the above policy conditions of insurance, the classic of Russian civil law V.I. Serebrovsky expanded the circle of persons who can be involved as beneficiaries in personal insurance contracts. So, in particular, noting that the insured person is the person in whose life an event should occur that entails the obligation for the insurer to pay the insurance premium, V.I. Serebrovsky indicated that it should be the insured, the beneficiary and the fourth person * (159). The fourth person named by V.I. Serebrovsky, this is the person who subsequently replaces the beneficiaries already appointed in the personal insurance contract.

Another representative of the classics of Russian civil law - V.I. Sinaisky spoke only about the presence of three persons in personal insurance contracts, but at the same time, like V.I. Serebrovsky, included all those who could be appointed to receive insurance payments to third parties. It should be added that the possibility of attracting third parties V.I. Sinaisky determined that the latter must have an interest in the well-being of the life and health of the insured. In particular, this author noted that, besides the insurer and the policyholder who is obliged to pay the insurance premium, there are also third parties: the insured person, in respect of whom the event provided for in the contract should occur, and the beneficiary - the person to whom the insurance amount must be paid ... This means that insurance of persons is permissible in favor of a third party (beneficiary) and that it is even possible to insure someone else's life or ability to work (the insured person) in their favor. The last option is admissible only where the insured has a special interest, for example, insurance by the wife of the husband or his ability to work * (160).

The outlined points of view of the classics of Russian civil law make it possible to more clearly distinguish between the insured, the insured and the beneficiary in personal insurance contracts:

The policyholder is the person who concludes the insurance contract and pays the insurance premium, ĸᴏᴛᴏᴩᴏᴇ can simultaneously act as the insured person;

The insured person is the main person in the personal insurance contract, in whose interests the personal insurance contract is concluded, whose life and health are insured;

A beneficiary is a person who ĸᴏᴛᴏᴩᴏᴇ is a beneficiary under a personal insurance contract appointed to receive an insurance benefit; the beneficiary must be the insured person who is the policyholder, or the insured person appointed by the policyholder, or a third party appointed by the insured person to receive the insurance benefit.

It should be noted that the insured person and the beneficiary in personal insurance contracts are third parties.

Very interesting are the arguments on this subject by N.S. Kovalevskaya, who believes that in cases where the policyholder and the insured person coincide, it is not extremely important to talk about the specifics of the legal regulation of the situation of these persons. The peculiarities of the legal status of the insured person are manifested in cases when he is not the policyholder in personal insurance. The legislator assumes that the insured person or his heirs in the event of his death are beneficiaries, unless otherwise specified in the contract * (161).

These views in relation to the legal status of participants in a personal insurance contract, except for the insurer, are fully consistent with the provisions of modern insurance legislation. In particular, according to Art. 934 of the Civil Code of the Russian Federation, in personal insurance contracts by subject composition, there are always three figures - this is the policyholder itself, the insured person and the beneficiary. Moreover, the combination of these figures should be very diverse, based on the terms of the contract. But the figure of the insured person in personal insurance contracts, in whatever combination it may be, always remains a priority. It is appropriate to cite here the arguments of P.P. Tsitovich, who, on the basis of an analysis of the varieties of personal insurance contracts, determined the relationship between the insured, the insured and the beneficiary as follows.

Life insurance, considered P.P. Tsitovich, may meet various interests and goals: a) the policyholder has in mind to ensure his old age; b) the policyholder intends to secure capital or income for himself or for another, upon reaching the insured age. The insured here is the one who must reach the insurance age͵ and the beneficiary is either the policyholder himself or the insured.

Death insurance, like survival insurance, allows various combinations: a) mutual insurance of two persons is possible, each of whom - the insured and the beneficiary - is insured in favor of the other; the insurer is obliged to pay insurance capital or insurance income to the one who outlives the other (this is survival insurance); b) the insurance must be conjunctim in the sense that the insurer is obliged to pay capital or pay income to a third party as a beneficiary only after the death of both insured persons. Further P.P. Tsitovich also distinguishes insurance for experiencing without reciprocity: one person is insured, the other is the beneficiary; the insurer is obliged to pay to the beneficiary the insurance capital or pay him income, but on condition that the beneficiary outlives the insured * (162).

In the above P.P. In Cytovich's example (b), as in many other cases of concluding personal insurance contracts, in practice the question often arises: should only natural persons always act as insurers, or are they also legal entities? Despite the fact that this question also belongs to the category of questions about the combination of the policyholder, the insured and the beneficiary, nevertheless, such a combination is present either between individuals or between legal entities and individuals.

In particular, individuals, being insured, may well simultaneously act as insured persons. This happens when they insure their own life or health. Or, for example, another situation that quite often occurs in practice, when the insured - an individual does not insure his own life and health or civil liability, but the corresponding interests of another person, ĸᴏᴛᴏᴩᴏᴇ and is the insured person.

In civil liability insurance contracts for causing harm, the right of claim is also possessed by a third party - the victim who has been harmed by the actions of the insured person.

The legal status of insured persons in all personal insurance contracts has one more legislative peculiarity, inherent in contracts of this type only. We are talking about the provisions of paragraph 1 of Art. 927 of the Civil Code of the Russian Federation, which determines that personal insurance contracts are public contracts.

The specificity of public contracts essentially lies in the fact that commercial organizations, incl. insurance companies are not entitled to give preference to one person over others in relation to the conclusion of a public contract, except in cases where provided by law or other legal acts. Since insurance legislation does not provide otherwise, personal insurance contracts must be standard, with the exception of the essential conditions provided for in paragraph 2 of Art. 942 of the Civil Code of the Russian Federation. It is impossible, for example, to draw up health insurance programs for each insured individually. Equally, it is impossible for insured persons on a cumulative type of life insurance to establish different percentages of investment income on the accumulated part of the insured amount.

Of particular importance is the right of the insured person to the insurance secret, proclaimed by Art. 946 of the Civil Code of the Russian Federation, the essence of which is that insurers do not have the right to disclose information received by them as a result of their professional activities about the insured, the insured person and the beneficiary, in particular, information about the state of health and the property status of these persons ... For violation of the secrecy of insurance, the insurer, based on the type of violated rights and the nature of the violation, is liable in accordance with the rules provided for in Art. 139 and 150 of the Civil Code of the Russian Federation.

To ensure all the above rights and powers of the insured person, the legislator introduced into personal insurance the principle of individualization of the insured person in the insurance contract, which is quite reasonably mentioned by Yu.A. Sleptukhov and E.F. Dyuzhikov, believing that the insured person in contracts of personal insurance must be specified in the contract * (163).

The need for individualization of the insured person is primarily caused by the insurance coverage of a completely defined natural person in order to prevent the replacement of this person without his consent. It is in this regard, when concluding a personal insurance contract between the insured and the insurer, an agreement must be reached on a specific and specific insured person. This rule belongs to the category of important provisions of the personal insurance contract and is an essential condition of the contract, which is directly defined in paragraph 2 of Art. 942 of the Civil Code of the Russian Federation, according to which, when concluding a personal insurance contract, an agreement on the insured person must be reached between the insured and the insurer.

The logical continuation of this rule is another rule established by the legislator, namely Art. 945 of the Civil Code of the Russian Federation, according to which insurers are given the right to examine insured persons to assess the likelihood of an insured event. In addition to this purpose, it is extremely important in carrying out such an event to identify the insured persons, since it is impossible to conduct an examination of the insured person if it is not determined by individual characteristics, in particular, it concerns health.

It should be noted that the legislator's requirement to indicate the insured persons in insurance contracts applies not only to voluntary types of personal insurance, but also to compulsory ones. In this regard, Art. 935 of the Civil Code of the Russian Federation establishes that the law on the persons indicated in it should be obliged to insure the life, health or property of other persons specified in the law in case of harm to their life, health or property. For this reason, a deviation from these rules may lead to the recognition of the concluded insurance contracts as invalid as inappropriate to the requirements of Art. 942 of the Civil Code of the Russian Federation.

In relation to the above, it should also be noted that, based on Article 4 of the Law on Insurance Business, the objects of personal insurance are property interests associated with the following conditions:

The survival of citizens to a certain age or term; death of the insured person; the onset of other events in the life of citizens (life insurance);

The cause of harm to the life and health of citizens; providing them with medical services (insurance against accidents and illnesses, medical insurance).

The designated insurance objects first of all testify that life, health, ability to work or pension provision are an inalienable good, inextricably linked with a specific person - an individual. Accordingly, the insurance relationship should be established only in the interests of a specific individual. It is in this regard that the requirement of the law that an agreement on the insured person must be reached between the insured and the insurer is designed to provide insurance protection for a specific individual, which requires the designation of his individually defined characteristics in the contract. Among other things, this is evidenced by the imperious and imperative nature of the statement by the legislator of this condition of the insurance contract (meaning, according to the legal technique, expressed in the form "should be").

The provisions of the considered norm of the Civil Code of the Russian Federation are strengthened by Art. 422 of the Code, which determines that the agreement must comply with the rules binding on the parties established by law (in this case, Article 942 of the Civil Code of the Russian Federation) and other legal acts (peremptory norms) in force at the time of its conclusion.

Investigating the issue of the extremely importance of individualization of the insured person in personal insurance contracts, V.S. Belykh and I.V. Krivosheev pointed out that the individualization of the insured person is also a qualifying feature that distinguishes him from the beneficiary, which must be presented in the insurance obligation with an indication of some generic features. The figure of the insured person requires full individualization, provided by the indication of his last name, first name and patronymic * (164).

Obviously, it is precisely because of this circumstance that the legislator, in order to determine the mandatory signs of an insured event (case) - probability and chance, obliged the insured to inform the insurer when concluding the contract about circumstances that are significant for determining the probability of an insured event (Article 944 of the Civil Code RF), while at the same time correlating this obligation of the insured with the right of the insurer to conduct an examination of the insured person at the time of the conclusion of the insurance contract to assess the actual state of his health (clause 2 of article 945 of the Civil Code of the Russian Federation).

Accordingly, the insurer will be able to exercise this right only if a specific individual is identified and known, and is subject to examination to assess the insurance risk. It is in this connection that the insured individual must be named in the personal insurance contract. This rule remains in the case of the replacement of the insured person, since it is impossible to replace the insured person without the consent of the insurer (clause 2 of article 956 of the Civil Code of the Russian Federation).

The outlined procedure for assessing insurance risk is aimed at providing the insurer with the opportunity to objectively assess the degree of risk in relation to a particular insured person, since in any group of people of a certain gender and age, L.N. Klochenko, some are more at risk of death or illness than others. So, in connection with professional activities or due to the peculiarities of social life, some people experience deterioration in health, others even have a near-death state, while still others feel quite good (health), although only a few can consider themselves absolutely healthy * (165).

For example, a feature of health insurance is the receipt by the insured (insured person) medical care in the form of treatment or carrying out the necessary preventive medical measures, in this regard, the payment for this type of personal country

Insured person - concept and types. Classification and features of the category "Insured person" 2017, 2018.

Beneficiary

Third parties in the insurance contract are the beneficiary and the insured person.
The definition of the beneficiary for the property insurance contract is contained directly in paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, and for the contract it can be derived from the norms of Art. 934 of the Civil Code of the Russian Federation. The beneficiary in any insurance contract is a person who is not the policyholder, in whose favor the insurance contract has been concluded.

It should be emphasized that a literal reading of the text of the rules implies that the beneficiary is non-policyholder, i.e. always a third party. But the courts literally interpret not the norm, but the concept itself: the beneficiary is the one who "gains the benefit", in other words, receives payment under the contract. Therefore, when the contract is concluded in favor of the insured himself, they consider the insured as the beneficiary. The participants in the turnover themselves believe the same. In standard forms of insurance contracts, along with the column "insured" there is often a column "beneficiary". In cases where, in favor of the policyholder himself, the column "beneficiary" is not left empty and a dash is not put in it, as it should be, but either they write "the policyholder" or indicate his name, so that in the columns "insured" and "beneficiary "the same person is indicated.

Such a literal interpretation of the concept of a beneficiary does not correspond to the purposes for which this concept is used by the legislator.
To understand these goals, I will consider the rule of Art. 956 of the Civil Code of the Russian Federation. It follows from this provision that the policyholder can replace the beneficiary by his unilateral expression of will, but if the beneficiary has fulfilled any obligation of the policyholder or presented a claim for payment, such replacement is prohibited. I understand the meaning of this rule as follows: until the expression of will, the beneficiary should not be considered as a subject at all - this is just one of the conditions of the contract. As a subject, a participant in contractual relations, he manifests himself only when he expresses his will. He can express his will in two ways: either by fulfilling any obligation of the policyholder, or by demanding payment. But since he manifested himself as a subject, expressed his will, his will must be protected, like the will of any other participant in the turnover.

How do courts apply this provision in practice? In one of the cases, the policyholder, in whose favor the contract was concluded, decided to appoint a beneficiary to the contract - another person. The courts denied him this right, referring to the fact that he was trying in this way to replace the beneficiary from himself to another person, but this is impossible by virtue of Art. 956 of the Civil Code of the Russian Federation, since he fulfilled his duty - he paid the bonus (Resolution of the Federal Antimonopoly Service of the Moscow District of August 9, 2002 N KG-A40 / 5113-02). In another case, the courts indicated that the insured, by virtue of the same norm, cannot cede his right (claim) to another person if he has already presented a claim to the insurer (Definition of the Supreme Arbitration Court of the Russian Federation of November 15, 2007 N 14095/07). In other words, the courts in these cases extend the effect of Art. 956 of the Civil Code of the Russian Federation and to the insured in whose favor the contract was concluded, since in such cases, in the opinion of the courts, he is the beneficiary.

However, in jurisprudence there are other cases in which the court considers it impossible to apply Art. 956 of the Civil Code of the Russian Federation in the case when the contract is concluded in favor of the insured himself. It would seem that by refusing to apply this article in the event of the conclusion of an agreement in favor of the insured himself, the courts thereby refuse to recognize the insured as the beneficiary. Meanwhile, in its act, the court indicates that the insured "is both the insured and the beneficiary in one person, in connection with which the norm of paragraph 2 of Article 956 of the Civil Code of the Russian Federation, aimed at protecting the property interests of the beneficiary, is not applicable" (Decision of the Moscow Arbitration Court from June 9, 2009 in case N A40-37772 / 08-50-387). Moreover, formulating this position, he practically quotes it from another judicial act- definitions of the Highest Of the Arbitration Court RF (Definition of the Supreme Arbitration Court of the Russian Federation of December 28, 2007 N 16719/07). So, the courts believe that the insured can be the beneficiary under the contract, but the rule of Art. 956 of the Civil Code of the Russian Federation is aimed at protecting the interests of the beneficiary, and in the case when the insured and the beneficiary coincide in one person, it is not applicable. I leave the reader the opportunity to reflect on the labyrinths that follow the thought of the domestic Themis.

I believe, nevertheless, that it is very easy to solve such problems if one reads literally not the word "beneficiary", deciphering it as "beneficiary", but the norms in which it is used. Then it becomes clear that the beneficiary in the insurance contract appears when the contract is concluded not in favor of the policyholder, but in favor of another person.

Insured person

Strictly following the letter of the law, one can speak of insured persons only in personal insurance, since only in Art. 934 of the Civil Code of the Russian Federation, there is a mention of them. The insured persons in the personal insurance contract are persons who are not policyholders, but in case of harm to whom the contract is concluded. If you follow this definition, then such persons can also be in the insurance contract for liability for harm (clauses 1, 2, Article 931 of the Civil Code of the Russian Federation). This is also confirmed by Art. 955 of the Civil Code of the Russian Federation, from which it follows that the insured persons can also be in the insurance contracts for liability for harm. The beneficiary in the property insurance contract can also be considered as the insured person, since the contract is concluded in the event of harm to him (clauses 1, 2, Article 930 of the Civil Code of the Russian Federation).

Disputes on the issue of insured persons arise only in terms of the ability to name the insured persons in insurance contracts by a generic sign. These disputes were discussed in detail in § 1 of Ch. 8 of this work.

Relationship between the policyholder and the third party

In practice, two questions have arisen related to the relationship between the interests of the policyholder and third parties:

1) whether there should be some kind of connection between the insured and the third party or it is not required for such a connection to exist;

2) if such a connection should exist, then it should be of a legal nature or can it be purely factual?

I will consider the first question first.

In practice, a situation arose that, although it did not reach the court, caused serious controversy. The question arose: is the employee entitled to conclude an insurance contract for his life and health against accidents and illnesses in favor of his employer?

The law does not contain any prohibitions in this regard. Hence, with reference to the freedom of contract (Articles 421, 422 of the Civil Code of the Russian Federation), it is concluded that such insurance is possible.

However, there was doubt about the employee's interest in the employer receiving the payment in case of harm to his life and health. It turned out that the employer, wishing to compensate for his losses from illnesses of workers, wants to force them to conclude such contracts. He would have to insure his entrepreneurial risk, act as an insurer himself and pay a premium, but decided to take these costs off from himself in this way. This deal, if concluded, would be enslaving.

And this will always be the case when the policyholder has no interest in attracting a third party to participate in the contract. Agreements are always concluded in the interests of their parties (clause 2, article 1 of the Civil Code of the Russian Federation). And a deal entered into without the interest of the person who made it is either enslaving or committed under the influence of deception, violence, threat or delusion, i.e. it is invalid.

Sometimes the interest of the policyholder in attracting a third party to participate in the contract is not obvious, but it is. In such cases, the transaction will be fictitious or feigned.

Conclusion: a third party in an insurance contract may not be any person who is not the policyholder and the insurer, but only the one in whose involvement the policyholder is interested in participating in the contract.

Another problem: should the policyholder's interest in attracting a third party to participate in the contract be legal, or should the actual interest be sufficient?

We find the solution in personal insurance contracts. Obviously, no legal interest is needed to conclude a life insurance contract in favor of, for example, your friend or your common-law wife (husband) - the factual is quite enough.

In addition, the requirement that the above interest of the policyholder be based on any legal act, can only follow from the law. However, there are no rules directly limiting the composition of third parties in insurance contracts, and the rule of clause 2 of Art. 1 of the Civil Code of the Russian Federation, from which the need for this interest follows, does not contain a requirement for the legal nature of the interest.

Summary of third parties in insurance contracts

Concluding the consideration of the issue, I will give a table that shows which insurance contracts which third parties can participate in:

Legal status of the beneficiary

Beneficiary rights

The fundamental right of the beneficiary is, of course, the right to demand payment. Despite the fact that nowhere in the Civil Code of the Russian Federation this right is directly established, it can be derived from the norms of the Civil Code of the Russian Federation as follows.

As mentioned above, the beneficiary in any insurance contract is a person who is not the policyholder, in whose favor the insurance contract has been concluded. Thus, an insurance contract with the appointment of a beneficiary should be qualified as a contract in favor of a third party. Accordingly, from paragraph 1 of Art. 430 of the Civil Code of the Russian Federation directly follows the right of the beneficiary to claim payment in his favor.

This conclusion is not disputed by anyone for property and personal insurance contracts. However, for the contract of insurance of liability for causing harm (Art. 931 of the Civil Code of the Russian Federation), a number of authors disputed the very possibility of applying Art. 430 of the Civil Code of the Russian Federation. This problem is discussed in detail in § 1 of Ch. 13 of this work.

In paragraph 2 of Art. 958 of the Civil Code of the Russian Federation, the beneficiary was granted another very unusual right - to refuse unilaterally from the execution of the insurance contract. Thus, the beneficiary, i.e. a third party who did not take any part in the conclusion of the contract can destroy it, although by virtue of the general rule of paragraph 2 of Art. 1 of the Civil Code of the Russian Federation, the insured enters into an insurance contract of his own free will and in his own interests.

In one of the cases related to compensation for damage caused by an accident, the inflictor, who insured his liability, filed a petition to involve an insurer in the case, which did not object to this. The victim, guided by his only known motives, said that in accordance with paragraph 2 of Art. 958 of the Civil Code of the Russian Federation waives the insurance contract. The court, without challenging this right of the victim, demanded to clarify exactly what his interests were violated by the insurance contract and why he exercised his right. Having established that the victim has no interest in canceling the contract, the court attracted the insurer to participate in the case, refusing the victim to protect his rights with reference to paragraph 1 of Art. 10 of the Civil Code of the Russian Federation - abuse of law (case No. 759/2003 of the Savelovsky intermunicipal court of Moscow).

From this case at least follows the need to always check the presence of the composition of paragraph 1 of Art. 10 in the event that the beneficiary declares the application of paragraph 2 of Art. 958 of the Civil Code of the Russian Federation.

The next subsection of this section shows that no obligations can be assigned to the beneficiary by the insurance contract. By virtue of paragraph 4 of Art. 430 of the Civil Code of the Russian Federation, the beneficiary can always waive his right (but not from the contract), and then this right will pass to the insured. Accordingly, it is not clear how the existence of the insurance contract can violate the rights and legitimate interests of the beneficiary.

On the contrary, it is quite clear how the refusal of the beneficiary from the contract can violate the interest of the policyholder. It follows from this that this right of the beneficiary cannot be used otherwise than to the detriment of the policyholder, which is not allowed.

Freedom of contract, enshrined in Art. 421 of the Civil Code of the Russian Federation, also applies to the freedom of the parties to keep the contract in force for as long as they need. This, of course, is true as long as the very existence of the treaty does not violate the rights and legitimate interests of others. However, the norm of paragraph 2 of Art. 958 of this Code directly allows a third party, whose interests cannot be violated in any way by the insurance contract, to interfere with the autonomous will of the parties to the contract, i.e. in the freedom of contractual relations. This design very significantly limits the freedom of entrepreneurial and other economic activity, enshrined in paragraph 1 of Art. 34 of the Basic Law. By virtue of paragraph 3 of Art. 55 of the Constitution of the Russian Federation, such restrictions can be introduced only for quite specific purposes. The purposes for which the beneficiary is granted such a right are not clear.

The beneficiary is granted other rights of the policyholder, but they are not essential, as the two considered.

Assignment by the Beneficiary of its Right to Claim Payment from the Insurer

The possibility of such a concession of a claim is a fundamentally important problem. In judicial practice, there are several cases in which it is expressly stated that such a transaction is invalid, since the beneficiary is not a creditor in the obligation to pay (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 21, 1996 N 771/96 and of January 6, 1998 N 1386 / 96). This conclusion is confirmed by the following reasoning. The policyholder enters into an insurance contract in favor of a third party in his own and only in his own interests. When buying a service from the insurer, the policyholder pays for the payment to be made to the beneficiary. By allowing the beneficiary to freely assign his right of claim, we thereby allow him to arbitrarily prevent the policyholder from using the service he has acquired.

This is clearly illustrated by the example of liability insurance. If the beneficiary (victim) is allowed to surrender his claim to another person, then the insurer will be obliged to pay to the non-victim, and therefore the policyholder (harm-doer) will remain liable to the victim. The insurance service will not be provided.

Accordingly, with respect to such an assignment, the same reasoning is valid as with respect to the unilateral refusal of the beneficiary from the contract.

"Obligations" of the beneficiary

In ch. 48 of the Civil Code of the Russian Federation, the legislator, when formulating the obligations of the policyholder, often uses the construction "the policyholder (beneficiary) is obliged". In other words, the beneficiary has the same obligations as the policyholder. In paragraph 2 of Art. 939 of the Civil Code of the Russian Federation states: "... the insurer has the right to demand from the beneficiary the fulfillment of obligations under the insurance contract ... upon presentation by the beneficiary of a claim for payment ...", i.e. there is also a right corresponding to the duties.

Thus, such an interpretation of the said norms of the Civil Code of the Russian Federation is possible, by virtue of which a third party, who did not take any part in the conclusion of the insurance contract, is imposed legal obligations against his will.

Note. Submission of a claim for payment, about which in question in paragraph 2 of Art. 939 of the Civil Code of the Russian Federation, it can hardly be considered in this case the consent of the beneficiary to assume obligations under the contract, since the beneficiary, when presenting a claim for payment, very often is not familiar with the terms of the contract.

However, a careful analysis of the texts of the norms allows us to conclude that such an interpretation does not correspond to the meaning of the legislation. The true nature of these obligations of the beneficiary can be understood by considering them in systemic connection with the second sentence of paragraph 2 of Art. 939 of the Civil Code of the Russian Federation, which establishes the consequences for the beneficiary of the failure to fulfill the obligations of the insured - the beneficiary is not responsible for their failure, but the risk of these consequences.

The meaning of this rule ("the risk of the consequences of failure to fulfill or untimely fulfillment of obligations that must be performed earlier is borne by the beneficiary") is that the beneficiary does not have the right to blame anyone for the adverse consequences of the failure of the insured to fulfill his obligations, including himself the policyholder who has not fulfilled the obligation. It is precisely this interpretation that follows from the text of the norm under consideration and from its comparison with other norms (Articles 19, 312, 753, 1055 of the Civil Code of the Russian Federation), in which the phrase "risk of consequences" is used.

V.V. Wise sees the use of the term "risk" here as a mistake of the legislator and believes that it must be corrected by making the beneficiary responsible for the failure to fulfill the obligations of the policyholder. However, it is impossible to agree with this. It is obvious that the legislator deliberately did not make the beneficiary responsible for the failure to fulfill the obligations that he did not assume. A. Nolken pointed out the inadmissibility of such legal constructions back in 1885.

Thus, the beneficiary is not liable to anyone for failure to fulfill the obligations of the policyholder, but he also has no right to impose responsibility on anyone for failure to fulfill them.

It follows from this that the texts of the norms, according to which "the insured (beneficiary) is obliged ...", mean imposing on the beneficiary not the legal obligation of the insured, but its execution, in the same way as in accordance with Art. 313 of the Civil Code of the Russian Federation, the execution may be entrusted by the debtor to a third party. In this case, the execution is assigned not by the debtor, but by the law, but this does not change the essence of the matter. The meaning of such a legal imposition is that the insurer does not have the right to refuse to accept the performance proposed by the beneficiary, despite the fact that the insured did not impose such performance on the beneficiary and the norms of Art. 313 of the Civil Code of the Russian Federation cannot be applied.

In addition, with the usual imposition by the debtor of an obligation on a third party, the debtor remains liable for non-performance to the creditor of the actions of the person who is entrusted with the performance of the obligation (Article 403 of the Civil Code of the Russian Federation). In this case, clause 1 of Art. 939 of the Civil Code of the Russian Federation, it is possible to impose execution on the beneficiary with the release of the insured from the performance of his duties with the consent of the insurer.

Replacement of the beneficiary in the obligation to pay

Replacement of the beneficiary is positively regulated in Art. 956 of the Civil Code of the Russian Federation. It follows from this article that the beneficiary can be replaced by the unilateral expression of the will of the policyholder, despite the fact that when concluding the contract, the condition of the beneficiary was agreed upon by both parties.

Since the subject composition of insurance relations significantly depends on the interests of their participants, the rules for replacing the beneficiary should be supplemented by conditions of interest. General rule should be as follows: if, upon replacement of the beneficiary, the existence of the insured risk ceases, then the insurance contract is also terminated with the consequences specified in Art. 958 of the Civil Code of the Russian Federation. If, upon replacement of the beneficiary, the existence of the insured risk does not cease, in order to determine the consequences of the replacement, a specific contract should be analyzed.

For example, in property insurance contracts concluded by the lessee in his favor, it is possible to appoint the owner as the beneficiary without any consequences. When replacing the beneficiary in property insurance contracts with a person who has no interest in preserving the property, the replacement transaction should be declared null and void by virtue of paragraph 2 of Art. 930 of the Civil Code of the Russian Federation. Indeed, the recognition in this case as null and void of the insurance contract itself would entail the obligation of the insurer to return the premium with interest under Art. 395 of the Civil Code of the Russian Federation, but before replacement the insurer provided insurance service and is eligible for a portion of the award.

The issue of the possibility of replacing the beneficiary by assigning his claim to him is discussed in detail above and it is shown that this method of replacing the beneficiary should not be allowed, since such an assignment of the claim would significantly violate the interests of the policyholder.

The beneficiary as a party to the contract and as its condition

It can be seen from the above that the legislator in insurance contracts endows the beneficiary with such a volume of rights of the insured and entrusts him with the performance of the obligations of the insured to such an extent that the beneficiary becomes very similar to the insured in its legal status. From this point of view, it is impossible not to recognize the beneficiary as the subject of relations arising from the insurance contract. As shown above, some authors consider the beneficiary even as a creditor, despite the directly opposite indication in Art. 430 of the Civil Code of the Russian Federation.

However, one should not forget that the beneficiary appears in the contract only in order to ensure the interests of the insured. The right of a third party arises for him not by his own will, but by the will of the parties to the contract. V.I. Serebrovsky: "The right of a third party ... exists because the debtor's promise to perform performance to a third party is accepted by the other party in the contract - the counterparty." The same point of view is reflected in the book by K.A. Grave and L.A. Luntz. All European legal orders adhere to this position in relation to contracts in favor of a third party.

From this point of view, the beneficiary is only a condition included in the contract, because the policyholder is interested in performance directly to the beneficiary. In other words, the beneficiary is the subject of contractual relations, but an inferior subject. For example, the beneficiary, until he declared himself as a subject, can be replaced by another person without his consent. He cannot be given complete freedom of action: the beneficiary can be free in his actions only as long as it is in the interests of the insured.

It is from this that the need to restrict the beneficiary's right to assign his claim and the need to exclude his right to refuse to perform the contract follows. That is why the beneficiary cannot be held liable for failure to fulfill the obligations of the policyholder, but only for the risk of adverse consequences that may arise from him due to failure to fulfill these obligations.

Let us recall the comments of the English Law commission: "It is not assumed that the law will grant a third party all the rights under the contract, or that the third party will be considered simply as a party to the contract ... We also do not intend to grant a third party the right to terminate the contract" (Clause 13.2 of the report of the Privity of Contract: Contracts for the Benefit of Third Parties "). I believe that this remark should be guided by our legislators and law enforcement officers.

Legal status of insured persons

The insured persons, like the beneficiaries, of course, do not bear any obligations. However, in the personal insurance contract, they are given the right to demand recognition invalid contract, concluded not in favor of the insured person without his consent (paragraph 2 of clause 2 of article 934 of the Civil Code of the Russian Federation).

The norm of clause 2 of Art. 955 of the Civil Code of the Russian Federation prohibits the replacement of the insured person in a personal insurance contract without his consent. If this rule is violated, the question arises about the legal fate of the transaction to replace the insured person. Such a transaction is obviously invalid by virtue of Art. 168 of the Civil Code of the Russian Federation and, moreover, is null and void, therefore it has no effect on the legal fate of the insurance contract itself. It should be noted that it would be unlawful to consider the replacement of the insured person in the contract without his consent as a ground for challenging the insurance contract itself with reference to paragraph 2 of Art. 934 of the Civil Code of the Russian Federation. This would mean recognizing that the replacement has taken place, i.e. the interest of the former insured, whose protection the legislator took care of, would be unprotected.

Finally, it should be said about the insured person in the tort liability insurance contract. In Art. 931 of the Civil Code of the Russian Federation, he was not granted any rights. However, in Ch. 13 I will consider the question of whether the insured person who has reimbursed the harm caused should be given the right to claim payment in their favor.