جستجوی مقالات مرتبط با کلیدواژه « بیمه گذار » در نشریات گروه « فقه و حقوق »

Sometimes after the accident occurs, the insured or the injured party due to the possibility of avoiding the accident or reducing the harmful effects of the damage caused by the accident, however, does not take action to perform the said act. The question that arises here is whether the insured or the injured party had a legal obligation to perform the act of avoiding or preventing the development of damage or not? What is used from the provisions of Article 15 of the Insurance Law is the sum of the obligations that the legislator has assigned to the insurer, but if the injured party has a percentage of fault or negligence and the accident occurs, what percentage of this percentage of fault creates the insurer's obligations. As we know, in fact, the insurer compensates instead of the loss factor. Now, if the loss factor and the injured party both have a degree of fault or negligence or laziness, does this relationship spread to the extent of the insurer's obligations or not? It seems that in Iranian law, the victim is obliged to prevent the spread of the scope of damages, and referring to some jurisprudential rules indicates this. With this preamble, the victim must also take measures to prevent the spread of the damage, otherwise, to the extent that the spread of the damage could have been avoided, the liability of the loser would be reduced to compensation, and in the first instance, the insurer's obligations Is affected.

One of the ambiguities existing in the insurance contract is the quiddity and nature of the insurer's liability in the insurance contract, which means whether insurer's payments is of the nature of a demand insured or real damage. The nature of the insurer's liability has a direct effect on the possibility of insured's referring to the tortfeasor and on the possibility of accumulating the damage imposer’s liability and insurer's liability (due to differences in origin). In this way, if the nature of the payments that the insurance company pays to the insured or the stakeholder is a credit (or savings or replacement of the contract), the injured party (the insured), after obtaining the insurance money from the insurer pursuant to contract, can refer to the tortfeasor because of the difference in the origin of liability (contractual and forcible) and the responsible person (insurance company and tortfeasor).

There are several legal systems to compensate for the insured’s losses, the most important of which include: 1. Selection: This means that the damaged party can refer to one of the responsible agents (insurer or tortfeasor) at his/her own selection. 2. Accumulation of benefits: This system is operative according to the principle of capital and, thereby, the damaged insured can also refer to the contractual legal system in addition to entitlement to refer to the forcible liability. 3. Recoupment: The contractual liability (insurer) can refer to the forcible liability after the loss and damage was compensated for and demand the tortfeasor for compensation for the payment already incurred. 4. Relieving the Tortfeasor’s liability: This means that neither of the parties are entitled to refer to the tortfeasor (Cane, 2006: 377; Lewis, 1998: 17). The principle of subrogation, which has been approved by Iranian legislatures, is a subset of the recoupment system and entails the fact that the insurer should refer to the tortfeasor while the damage was compensated for and amount paid to the insured should be claimed for refund from the tortfeasor. In domestic law, the principle of subrogation is viewed to be based on the rule of "double compensation prohibition " and "prohibition of unjust ownership" and is interpreted on the basis of recognizing the insurer's payment to the insured as "damages". In other words, when the insurer compensates for the insured's loss by paying for the damages, the insured can no longer refer to the insurer because one of the pillars of the claim is the civil liability of damages survival. Thus, when the insured's damages were paid by the insurer, the insured does not have the right to refer to the tortfeasor but the insurer can refer to the tortfeasor on behalf of him/her (Babaee, 2005: 25; Taheri, 2008: 22). In this research, for the following reasons, it was proved that the nature of the insurer's payment has been a "credit" and the above argument is not correct. First, according to Article 1 of the Insurance Law in 1937, insurance is a commutative contract and the insurer's indemnity is paid for the insurance premiums paid by the insured. In addition, the insurer's obligation originates from the insurance contract; therefore, the nature of the insurer's liability is contractual credit. Second, according to Article 30 of the Insurance Law in 1937, when a payment is settled by the insurer, the insurer has the right to refer to the tortfeasor on behalf of the insured. If, according to the well-known theory of nature of compensation in insurance, is assumed to be damage and reference to the tortfeasor entails the rule of "prohibition of double compensation", such a right will not be considered either for his/her subrogation (insurer) because the injured party’s claims are compensated for by the insurer’s compensation and it is not possible any longer to refer to the tortfeasor (originally or by subrogation). As a result, the nature of the insurer's payment should be considered to be based on credit and contract and there should be the possibility of referring to the tortfeasor on behalf of the insured. In other words, knowing the "nature" of the insurer's payment is the requirement for the justification of "principle of subrogation". Third, at the end of Article 30 of the Insurance Law in 1937, the legislator states that "the insurer will be the subrogation of the insured and if the insured takes any action contrary to the contract, s/he will be considered liable to the insurer". Any action contrary to the insured’s right, such as release from an obligation third party responsible and bringing an action for damage against the third party responsible by the insured (original) is valid when s/he has the right to quittance or initiation of lawsuit. If the nature of the insurer’s liability is damage and the insured has no right against the tortfeasor, how can s/he acquit the tortfeasor or claim any payment from him? Fourth, in some legal systems, such as the legal systems of the United States and Ireland, the injured party has the possibility to refer both to the operating losses (tortfeasor) and the insurer, and the system of "Collateral Benefits" is applied (English Law Commission's Consultation paper, 1997, No. 147, "Damages for Personal Injury: Collateral Benefits": P 75, At: www.lawcom.gov.uk). This suggests that the principle of subrogation is not due to the nature of damaging the insured's civil liability. What the insurer pays to the insured is the "credit" of the insured and the enforcement of the contract by the insurer; and the insured’s right to refer to the tortfeasor to receive "indemnity" is retained (which is referred to the tortfeasor by the insured in the "collateral benefits" system or by the insurer in the "recoupment" system on behalf of the insured.

The nature of the insurer's liability in the insurance contract is demand and contractual. In our law, the "Recoupment" system is chosen on how to refer to the tortfeasor, and the insurer, after being compensated according to the insurance contract for civil liability and to compensate for the power of subrogation from the insured, refers to the tortfeasor. Knowing payment, the "nature" of the insurer's liability, the possibility of applying any of the Selection systems, Accumulation of Benefits, the Recoupment and the Relieving the Tortfeasor’s liability can be applied according to the requirements of time and place. It is suggested that the "Accumulation of Benefits" system be specifically reviewed by the legislator.

The condition of non-liability in insurance has been less considered by researchers and existing laws. The ambiguity of the conditions of these terms and  referral of the condition of these terms to the private conditions of the insurance policy, due to the extension of insurance contracts and the superior trading power of insurance companies, is criticized, often to the detriment of the insurers and beneficiaries of the insurance policy Ends. However, according to legal basis, it is possible to cancel the condition of non-responsibility for the main obligation of the insurer, but this ambiguity continues with the insurer's underwriting obligations. Also, in cases where the condition of non-liability is minor, although such a condition is subject to the principal obligation, considering that such a condition does not eliminate the overall effect of the insurance contract, it is not possible to invalidate or insert the insurance contract. But in general, the referral of the status of the condition of non-responsibility to private conditions has created opportonities for misuse. For this reason, reform of existing laws and regulations seems to be necessary from this perspective.

Today, individuals and, in particular, insurers are seeking insurance coverage to secure compensation. In this regard, there are often two or three people in the relationship: the insurer and the insurer and the third party beneficiaries. Insurers have also entered into insurance contracts to insurers to guarantee their losses, which means the operation, reinsurance or reinsurance. However, in case of insured damages, they are not seeking direct insurers, but rather reinsurers, and in this area they have often been successful. However, what are the reasons for not being able to refer the insurer to the reinsurer in this case?

A Situation in which the same risk is insured by two overlapping but independent insurance policies called double or dual insurance. It is lawful to obtain double insurance, and the insured can make claim to both insurers in the event of a loss because both are liable under their respective polices. The insured, however, cannot profit (recover more than the loss suffered) from this arrangement because the insurers are law bound only to share the actual loss in the same proportion they share the total premium.

Today, in order to insure properties, people tend to conclude contracts with insurance agencies and subsequently are given insurance policy based on which possible damages can be claimed. The same philosophy is true about those direct insurer and reinsurer. The main question, here is whether direct insurer or reinsurer is responsible for damages claimed. Given the principal of privacy of contracts, in case of reinsurer being responsible, what are the grounds based on which the insured can refer to reinsurer to claim damages.

One of the new contracts in Iranian legal system is insurance contract that has encountered different opponents and adherents in its course of coming into existence and each parts, invoking to some reasons, have tried to justify and establish its viewpoint. The most important reason that the opponents of insurance contract have raised is that this contract is based on «Gharar». They believe that the insurance contract is a sample of «Zamane- Ma- Lam- Yajeb and gambling. So they consider it as suspended and void contract. In this paper we have studied, through criticizing the opponents reasoning, the basis for legitimacy of this contract. It has to be noted that the mentioned «Gharar» in «Moghabeneh contracts» is a sort of accident and separation GHARAR and the prohibition of Gharar is related to «Moghabeneh contracts». Thus to extend the Gharar to risk contract such as insurance is without any reason. IN this paper, the opponents viewpoint has been rejected and resulted in that Gharar, in insurance contract, is a kind of «Inherent Gharar» that may not affect its validity.

One of the most important duties of insured in the insurance contract, is to inform the insurer, fully and accurately. This obligation arises in three stages:before conclusion of contract, during the contract and after occurrence of the insured event. The review shows that the insured’s duty before conclusion of contract is reduced from a primary obligation to a secondary one. This means that insured is under duty to inform insurer only toward his clear questions. In addition, this duty will be continued after conclusion of contract if new circumstances lead to aggravation of risk or realization of a new risk. Finally after occurrence of the insured event it appears as a duty to declare the insured event. The article examines the obligation in these three phases with a comparative view.

This article is concerned with the question of how much the assured will be entitled to recover following an assured loss. It will be discussed which three elements are involved in this respect; first the loss of assured, second the amount of assuror obligation and third the contractual agreements of the parties in respect of the amount of assuror's payment.

The Act of the third party insurance was amended after 40 years.Though late, this promises a striking development in the field of social responsibility and compensation. Clarification of the concept of possessor of policy, extension of insurance coverage, floating of the responsibility of insurer, elimination of the statute of limitations, calling the insurer to hearing session, acceptance of the policy as a guarantee, immediate payment of at least 50% of the approximate blodwyte to the victim (predicted in the Article 16 of the new Act) as well as a professional commission to resolve debates may be regarded as being among privileges of this Act.But, it faces some challenges as well. Ambiguity in the notion of owner as one who possesses policy: whether owner is the one who has an official document or the one who has some ordinary written promise or a proxy may be regarded as the owner. Does the content of the Clause 3 of the Article 1 require a legal judgment to be issued? In cases wherein the blodwyte determined is much more than the costs borne, should it [blodwyte] still be paid? The insurer's responsibility is limited to the amount mentioned in policy; now if the insured party was sentenced to pay more than that amount, who shall pay for the cure costs: the insurer or the insured party? When called to the hearing session, is the insurance company regarded as defendant or as an informed party? Of what influence is communication of the verdict to the insurer? May he protest? These are some examples of points which should be clarified; and, it remains to see how the judicial precedent reacts.

According to speedy changes in the human societies and developing internal and external relations and expanding sciences and techniques, we see new subjects which have legal, economic and other signs. Nowadays, there are new matters.One of them is the "insurance transaction". The insurance convention is one of the serious matters which relates to the individual and social part of human life. Jurists mention different views about "insurance transaction".In this writing, I try to explain general views of jurists and lawyers. The last part of this research report is about the status of social security organization in all provinces. To achieve this aim, the organization chose ten common indexes to determine province's insurance level and recognize the status of this organization in "Gillan province".

The Iranian Insurance Code has beed enacted 70 years ago. Harmonisation of the code with recent developments is an important function of the parliament. The bill of commercial Insurance which reffered to Islamic consulative Assembly in 27 Tir 1384, has tried to modify the Iranian Insurance Code. The present article examines the bill and its comparsion with the Iranian and French commercial codes.