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ABSTRACT
This article states that, unlike compulsory health insurance, voluntary health insurance is based on the freedom of
contract, agreement of the parties and voluntary determination of the insured event, insurance conditions, types of
medical services provided, sum insured. Therefore, the concept and features of the contract of voluntary medical
insurance, the procedure for its conclusion, the importance of determining the subject of the contract are
investigated. Also important is the role of the voluntary medical insurance contract in the system of insurance
relations, the procedure and conditions for its application in the legislation and the formation of a special legal
framework governing these relations. The article analyzes the concept and features of a medical insurance contract.
KEYWORDS
Medical insurance, voluntary medical insurance, medical care, treatment, insurer, insurer, insured person, insurance
premium, insurance premium, sum insured.
INTRODUCTION
Types and forms of the insurance contract are diverse.
Types and forms of property and personal insurance,
voluntary and compulsory insurance, additional
insurance, double insurance, co-insurance, mutual
insurance and similar types of insurance are
distinguished on various grounds, conditions and
Research Article
CONCEPT OF VOLUNTARY HEALTH INSURANCE CONTRACT
Submission Date:
January 09, 2022,
Accepted Date:
January 20, 2022,
Published Date:
January 30, 2022
Crossref doi:
https://doi.org/10.37547/tajpslc/Volume04Issue01-12
Boltaev Mansurjon Sotivoldievich
PhD in Law Associate Professor of the Department of Civil Law, Tashkent State University Law, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
74
Volume 04 Issue 01-2022
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
VOLUME
04
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Pages:
73-79
SJIF
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5.
952
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OCLC
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7.659
Publisher:
The USA Journals
criteria. The legislation does not contain a specific
criterion, restriction or requirement regarding the
division of insurance into certain types and types.
Therefore, there are no strict requirements for the
division of insurance into types or their division.
Appendix 1 to the Decree of the Cabinet of Ministers of
the Republic of Uzbekistan dated November 27, 2002
№ 413 “On licensing the insurance activities of insurers
and insurance brokers” Appendix 1 “Classifier of
insurance activities”, although defined, does not
contain a strict list of types and types of insurance
contracts. The inclusion of a particular type of
insurance in a particular network or class of insurance
is also very relative and controversial, and depends on
the level of thinking and thinking of each specialist.
Therefore, the concept of types of insurance, in
particular, certain types of insurance contracts and
determining their place in the insurance system, is
important both from a practical and theoretical point
of view.
The concept of a medical insurance contract, including
a voluntary medical insurance contract, is not provided
for by the current legislation. However, the legislation
provides for the division of insurance into voluntary
and mandatory types. In particular, Article 914 of the
Civil Code of the Republic of Uzbekistan is called
“voluntary and compulsory insurance”. However, this
article does not establish clear rules for voluntary and
compulsory insurance and does not provide
descriptive aspects of voluntary insurance. It follows
from the content of this article that only individuals
(individuals and legal entities) and insurance
companies can carry out insurance by concluding
property and personal insurance contracts, in some
cases the obligation to conclude an insurance contract,
insurance can be carried out at the expense of the state
budget. This abstract expression of this norm provides
the basis for its various interpretations, interpretations
and applications and does not allow understanding in
which cases insurance is voluntary and in which it is
mandatory. This approach of the legislator can lead to
ambiguity in insurance relations and the emergence of
internal conflicts and abuses between insurers and
policyholders. This is due to the fact that the division
into voluntary and compulsory should include clear
boundaries and voluntary insurance to represent the
interests of individuals established by law, which are
carried out freely and by mutual agreement.
There is no definition of voluntary medical insurance in
the legal literature. As noted above, this is due to the
fact that insurance payments are different in nature [1].
This is also due to the fact that the current Civil Code
ignores other types of insurance, separately defining
“property insurance contract” and “personal
insurance contract”. Commenting on this, Ms.
Smirnova said that the legislator refrained from
defining a general definition of an insurance contract,
based on the following argument: it attaches certain
importance. A holistic and unified definition of an
insurance contract cannot simultaneously satisfy two
requirements (property and personal). Therefore, it is
advisable to formulate separate definitions of property
and personal insurance [2].
In our opinion, a certain contradiction in the
interpretation of this opinion should be noted. The
meaning of this point of view is that it is impossible to
give a single definition for all types of insurance, but
the authors of this point of view do not claim that there
can be no definitions dedicated to specific forms and
types of insurance. In our opinion, there should be
special definitions for certain types of insurance, and
they should reflect the specifics of the respective type
of insurance and differences from other types of
insurance. For example, the Law of the Republic of
Uzbekistan “On Compulsory Insurance of Vehicle
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Owners” [3] defines this agreement (Article 3). In turn,
the Law “On Compulsory Insurance of the Employer's
Civil Liability” [4] (Article 6) and the Law “On
Compulsory Insurance of the Carrier's Civil Liability” [5]
(Article 6) determine the relevant contracts.
In a number of CIS countries, including Armenia,
Belarus, Kyrgyzstan and the Russian Federation, the
Civil Codes do not contain a single definition of an
insurance contract, as in the Civil Code of Uzbekistan.
On the contrary, the Civil Codes of Georgia and
Turkmenistan define the insurance contract, but do
not provide for the division of insurance into property
and personal [6]. The Civil Code of Azerbaijan defines
the general definition of an insurance contract and
singles out property and personal insurance as
separate objects.
In our opinion, the wrong approach is that the Civil
Code does not define an insurance contract, but, on
the contrary, defines a property insurance contract
(Article 915) and a personal insurance contract (Article
921). Of course, it is advisable to divide the objects of
insurance into property and personal. However,
instead of the definition of an insurance contract,
which is a holistic legal relationship, in our opinion, it is
inappropriate to divide the definition into two based
on the volume of its two main objects. This, in turn, can
lead to various confusions in the understanding and
interpretation of the insurance contract, as well as in
the legal assessment of insurance contracts. Lawyer
T.Umarov argues that property or personal insurance
can be voluntary or mandatory, which does not mean
that these contracts are not mixed [7]. It turns out that
benefits that are both the subject of property and
personal insurance can be insured by concluding a
single insurance contract. Therefore, it is incorrect to
single out separate “property insurance contract” and
“personal insurance contract” in the definition of an
insurance contract. In our opinion, the Civil Code
should define a single “insurance contract” and
express it as follows:
Under the terms of the insurance contract, one party
(the insurer) undertakes to pay the agreed amount for
loss or damage associated with the risk of the insured
object, and the other party (the insurer) undertakes to
pay the insurance premium (premium), the insurer
takes responsibility.
According to V.I.Serebrovsky, an insurance contract is
an independent type of civil law contract. This
independence is understood as the difference
between an insurance contract and other contracts
[8]. It is the unit of insurance liability that indicates the
need to express the general concept of an insurance
contract. After all, an insurance contract is a voluntary
document of individuals aimed at establishing
insurance relations.
V.P.Kryukov writes that before proceeding to the
definition of the legal nature of an insurance contract,
it should be noted that its legal essence is not fully and
clearly expressed, therefore this issue is the subject of
scientific discussions. The difficulty in this regard lies in
the fact that the insurance contract does not comply
with the norms of existing civil law contracts; it is
simultaneously considered as a contract of sale,
representation, supply of goods, debt and other similar
contracts [9].
In the legal literature, an in-depth analysis of the
relationship between the insurance contract and other
related contracts is carried out, as a result of which it is
concluded that the insurance contract is an
independent civil law contract [10]. Therefore, without
dwelling on the relationship between insurance liability
and related obligations, it should be noted that
insurance liability is an integral and independent
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liability as an institution of civil law, and health
insurance - as part of this whole - is divided into two
types - mandatory and voluntary.
As mentioned above, a voluntary medical insurance
contract is a type of personal insurance. Summarizing
this moment, taking into account the role of voluntary
medical insurance in the system of insurance
obligations, as well as taking into account the civil law
features of insurance, we can form the following
definition of voluntary medical insurance:
One party (the insurer) under a voluntary health
insurance contract provides more services than
specified in the compulsory health insurance program
provided for medical programs provided by the other
party (the insurer) for a fee (insurance premium) and
insurance programs agreed with citizens that are part
of of this agreement, from time to time or periodically
the organization undertakes to finance vape.
The contract for the right to receive the sum insured
will belong to the concluded medical institution. This
right is imperatively defined in the first part of Article
921 of the Civil Code of the Russian Federation.
According to the general rule of Article 914 of the Civil
Code of the Russian Federation, the basis for the
formation of insurance relations for voluntary
insurance is the contract as a legal instrument for the
individual regulation of social relations, on the basis of
which the main subjects of the insurance contract: the
insurer and the insurer are made.
The study of the contract of voluntary medical
insurance allows you to identify the main legal features
that determine the features of the contract of
voluntary medical insurance in comparison with other
types of this contract.
1)
The insurance contract is mutual (imposing a
bilateral obligation). This agreement describes the
existence of concerted actions that represent the
mutual will of the participants. The right of one
party is an obligation for the other party and vice
versa [11].
V.R.Idelson rightly notes that insurance in this matter
is a bilateral contract, since it implies the rights and
obligations of each of the counterparties [12]. Unlike
compulsory health insurance, which is based on the
law, the conclusion of an agreement based on the
voluntary will of the parties is mandatory for the
formation of a legal relationship.
2)
Compensation is one of the main features of a
voluntary medical insurance contract. The principle
of compensation constitutes the economic basis of
insurance relations and ensures the performance
of the functions that insurance must perform due
to the availability of certain funds. This was noted
in the 19th century. I.I.Stepanov, who recognized
that insurance means predetermined and
deliberately accumulated funds in order to avoid
adverse consequences, in contrast to the usual
accumulation of money for cases when money is
needed [13].
Later civilizations: K.A. Grave and L.A. Lunts. Insurance
in the broad sense of the word means, first of all, a set
of measures for the creation, accumulation of material
resources and funds to cover losses in case of
unforeseen
accidents
and
accidents,
and
compensation for losses [14]. Based on the principle of
reimbursement, insurance funds were used only in
cases where the persons participating in the creation
of this fund at their own expense suffered losses.
The current legislation is fully consistent with the
principle of reciprocity, expressed by scientists in the
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legal literature. A necessary condition for a voluntary
medical insurance contract is the payment of insurance
premiums (insurance premiums) and insurance rates
(Articles 921, 941 of the Civil Code of the Russian
Federation), which form a fund to meet the needs of
insurers in the event of an insured event. Specified in
the contract is evidence of remuneration under this
contract.
3)
The target orientation of insurance can also be
recognized as an independent feature of a
voluntary medical insurance contract. Providing a
potential need is the purpose of this transaction.
That is, the need for public health protection is
satisfied by providing insurance coverage to the
insured person for the costs associated with his
treatment and treatment by the insurance
organization.
4)
The impossibility to know in advance the events
and circumstances that are considered an insured
event (coincidence). The norm of Article 929 of the
Civil Code also testifies to the concept of an insured
event about the accidental nature of insurance.
According to this norm, insurance is an event that
is insured upon the occurrence of an insured event.
In this case, the description of the event must be
determined by agreement of the parties.
5)
The risky nature of the insurance contract is a
decisive condition for insurance [15]. The validity of
the insurance contract [16] depends on the
realization of the insurable interest of the insurer,
and not on the payment of the insurance premium
by the insured. Thus, the limit of liability of the
insurer is an important condition of the insurance
contract and at the same time is the subject of
agreement between the parties, which is
understood from Article 929 of the Civil Code of the
Russian Federation.
The contract of voluntary medical insurance comes
into force from the moment of payment of the
insurance premium or the first installment (Part one of
Article 947 of the Civil Code of the Russian Federation).
This is the basis for scientists to include this type of civil
law contract in the list of real contracts [17]. However,
it should be noted that this rule, provided for by law, is
dispositive in nature. If the parties provide for the entry
into force of the agreement from the moment an
agreement is reached, such an agreement should be
recognized as a consensual agreement. In this sense,
an insurance contract can be interpreted as a real and
consensual contract based on the method of structure
and agreement of the parties [18]. In our opinion, a
voluntary medical insurance contract can also be real
and consensual by agreement of the parties. If the
parties have not concluded in the contract a rule on the
date of entry into force of the agreement by mutual
agreement, the provisions of part one of Article 947 of
the Civil Code of the Russian Federation shall apply
until the day the agreement enters into force.
The contract of voluntary medical insurance is a
conditional contract [19]. The insured has the right to
demand compensation for losses (payment of the sum
insured) from the insurer only from the moment of
occurrence of the insured event. An insured event is
the nature of a conditional contract, i.e. a condition and
a situation under which it is not known whether an
insured event will occur or not (Article 104 of the Civil
Code).
As a rule, an insurance contract belongs to the group
of causal contracts and depends on the basis for its
conclusion. This is due to the fact that in insurance,
more than in any other contract, it is necessary to
adhere to the consistency between the main (causal)
basis and the legal relationship itself. Compliance with
the compensatory nature of the obligation, preventing
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the receipt of unreasonable profits is one of the
important conditions for the validity of insurance legal
relations.
An insurance contract is always concluded for a fixed
period. Due to the direct relationship between the
term of the contract and the cost of insurance (Article
929 of the Civil Code of the Russian Federation), the
legislator refers the term of the contract to the
essential terms of the insurance contract. The issue of
the possibility of concluding an insurance contract is
raised in response to a written request from the
insured and ends with the conclusion of an appropriate
contract and the conclusion of an insurance
declaration on a fair basis [20].
In our opinion, a voluntary medical insurance contract
is a contract that provides for payment for all services
provided for in the contract for the provision of
medical care to the insured person. The sum insured is
reimbursed by the insurer at the expense of the
insurance premium or premiums paid by the insured
person in the event of an insured event - deterioration
in the health of the insured person or the need to
provide him with medical care. In this regard, the
contract of voluntary medical insurance as a separate
independent type of insurance has its place in the
protection of public health.
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79
Volume 04 Issue 01-2022
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
VOLUME
04
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Pages:
73-79
SJIF
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FACTOR
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)
(2021:
5.
952
)
OCLC
–
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METADATA
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7.659
Publisher:
The USA Journals
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