Projects / Programmes
Modernisation of the legal regulation of insurance contract
| Code |
Science |
Field |
Subfield |
| 5.05.00 |
Social sciences |
Law |
|
| Code |
Science |
Field |
| S110 |
Social sciences |
Juridical sciences |
| Code |
Science |
Field |
| 5.05 |
Social Sciences |
Law |
insurance law, insurance contract, insurance company, legislation, risk, damages, subrogation
Researchers (21)
Organisations (2)
Abstract
The objective of the proposed research project is to analyse and critically evaluate the current Slovenian legal regulation of insurance contracts, to identify key problems and prepare expert basis for the modernisation of Slovenian regulation in this area.
The insurance contract differs from the traditional transactions of obligations law, as its main content is transfer of certain risks against the payment of premium, rather than an exchange of goods or services for money. The current Slovenian legislation the insurance contract in the Code of Obligations (OZ) is almost entirely taken over from the Yugoslav Law on Obligations (ZOR), adopted in 1978. The economic, social and legal circumstances have changed significantly in the meantime, so the existing legislation on is obsolete and deficient. Since the provisions of the insurance contract are mainly of mandatory nature, a legislative reform is required to eliminate the inadequate solutions.
Among of the key disadvantages of the current regime, which we preliminarily identified in cooperation with representatives of the Slovenian Insurance Association, are the following:
The law does not distinguish between the situation where the policyholder is a consumer and the situation where the policyholder is a company. The statutory rules concerning the latter could be more discretionary, which would allow greater flexibility in insurance. The rules on the protection of policyholders who are consumers, on the other hand, should be unified, as they are currently scattered in several special laws.
The requirement of written form of contract signed by both parties is too strict and impedes simpler ways to conclude insurance using electronic communications.
There is a lack of regulation of health insurance, the relevance of which is growing. Special legislation governs the compulsory and supplementary insurance, while additional health insurance remains virtually unregulated. Also unclear is its legal classification in the light of the provisions of OZ.
Legislation increasingly prescribes various forms of mandatory insurance, especially compulsory liability insurance of professional activities. Nevertheless, OZ contains no general provisions regarding the conclusion or implementation of contracts where the policyholder is under obligation to conclude insurance.
It is unclear whether and to what extent the rule on significantly changed circumstances is applicable to insurance contracts in terms of the possibility of termination of the contract or changes in premiums due to subsequent changes in insured risks.
The need for a thorough critical examination of the Slovenian insurance contract law also occurs due to the legislative activity of the European Union. Existing directives e.g. lay down specific pre-contractual explanatory duty of the parties to an insurance contract. The Expert Group for Insurance Contract Law has found that the differences in EU Member States’ contract law hinder cross-border supply of insurance products, so we can expect new initiatives of the European Commission towards the harmonisation of insurance contract law. In the context of the research project, we will analyse the adequacy of existing implementations of EU directives into Slovenian law and the possibility of integration of the coming changes.
Several European countries have in recent years significantly reformed their regulations of insurance contracts (e.g. Germany, Switzerland, Austria, Netherlands, United Kingdom). The project will analyse how the modern foreign jurisdictions resolve those issues that are problematic in the Slovenian insurance contract law. When designing the groundwork for a modernisation of Slovenian insurance contract law, the Principles of European Insurance Contract Law (PEICL) will be taken into account, which were prepared for the European Commission by an international project team as part of the wider program of Common Frame of Reference for European Contract Law.
Significance for science
The research project will be of great significance for the development of Slovenian legal science in the field of insurance law. In Slovenia, insurance contract law as one if it’s essential elements has not yet been subject of a comprehensive and systematic scientific research. Having in mind the fact that the regulation is practically unchanged since 1978 when Yugoslav (federal) Act on Obligations was adopted, and that the circumstances have changed dramatically since then, the need for the assessment of appropriateness of regulation is evident, together with the need to compare, and possibly, to adjust, the regulation with modern trends and reforms in comparative law, and to coherently implement the relevant EU legislation. The expected result is, on one hand, a comprehensive and systematic body of knowledge, available to the public through scientific articles, monograph, a commentary of the regulatory framework, scientific conference and seminars, and, on the other hand, making of a scientific basis for a possible reform/ modernization of Slovenian insurance contract law. Furthermore, the proposed project will be a welcome incentive for legal research and publications in the field of insurance law – an important part of civil and commercial law. Publications in this field are necessary for the functioning of the regulatory framework. Given the small size of Slovenian (insurance) market and the linguistic borders, co-financing by the State is absolutely necessary to carry out the proposed research project.
The project will also have an important role in the development of science in the field of insurance law in the successor states of the former Yugoslavia, where the statutory regulation of the insurance contract is also based on the Yugoslav Obligations Act. In these countries, similar problems and possible solutions appear. Some of these issues will be discussed at an international conference at the 40th anniversary of the Obligations Code, organized by the Faculty of Law of the University of Ljubljana in cooperation with law faculties from other republics of the former Yugoslavia. The findings can also be relevant for the possible future upgrade of PEICL that would also take into account the experience of these countries.
Significance for the country
The proposed research project will directly impact the economy and the society through the applicability of its results. They will be applicable on one hand as a scientific background for a modernization of Slovenian insurance contract law, its harmonization with modern trends in comparative law as well as –as coherent as possible – implementation of EU legislation. On the other hand, the articles, monograph and commentary will be useful at application of the present regulatory framework and, possibly, its modernized provisions de lege ferenda. A better, clearer and modern regulatory framework of insurance contract law represents a better foundation for insurance contracts for the society and economy as a whole.
Most important scientific results
Interim report,
final report
Most important socioeconomically and culturally relevant results
Interim report,
final report
