Abdimazhitov Yerkin
Kazakh National University, Law faculty
Problems of legal regulation of
environmental insurance and their solutions
One of the most important indicators of a person’s
life is a favorable environment in which human society needs throughout his
life. The natural environment also impacts on human society under the laws of
its development. As a consequence, natural phenomena such as floods, storms,
hurricanes, earthquakes, fires, frosts, hail and other disasters in a short
period of time can destroy or damage natural objects and other valuables, while
causing considerable damage. Significant costs are going to carry out measures
to combat natural disasters arising. In addition, the state of the environment
in the Republic of Kazakhstan is currently characterized as a crisis, and not
only because of emergencies caused by natural disasters. Due to intense
pollution of most natural objects surface areas with severe environmental
situation several times larger than the area of state natural
reserves and sanctuaries. Economic damage from such pollution is about half of
the national income. A growing number of industrial enterprises continue to
pollute the environment, many of them do not fit the norms established for them
maximum permissible emissions and discharges of harmful substances. Therefore,
the opposition of the economy and the environment - one of the key problems of
environmental protection.
In the legal regulation of environmental insurance
there are several problems. To consider whether to make a classification,
highlighting the problems of state-legal and financial-economic problems [1].
Problems of development of the insurance market issues
are lack of development in the country life insurance market and other types of
personal insurance, as well as the formation and ensure database availability
of statistics and data on the activities of insurance (reinsurance) companies,
automation of insurance companies.
Among the problems of the insurance sector is referred
to the limitations of the services offered by voluntary insurance, including
long-term and endowment life insurance.
A special role should be given to the design stage of
lawmaking. Need more rationally related to the development of certain
regulations, properly justifying financial and legal basis.
Another state-legal problem is the low legal culture
and legal nihilism of individuals and entities, manifested in distrust of
insurance companies, as well as a negative attitude to the law on environmental
insurance, as an institution of environmental damage.
Often, in practice, this is reflected in the
reluctance to enter into contracts of compulsory insurance, failure to comply
with regulations on technical safety of dangerous objects, inability of
citizens to defend their civil rights, including in the event of property
damage to them [2].
The solution to this problem in many respects should
take the insurers, developing advocacy insurance, clearly showing his dignity
and economic feasibility. An example of such actions of insurance companies is
to create a pool for insurance of hazardous production facilities, which is a
union of insurers [3].
By creating a pool of multiple tasks. First, there are
conditions for the organization of insurance risks, previously unknown, which
is very accurate estimate is difficult and rare, and the few that do not allow
even at maximum coverage form a balanced insurance portfolio. Second, by
combining financial resources of individual insurers significantly increases
capacity and, consequently, the possibility of insurers to adopt on the
insurance of large risks. Third, increasing the reliability of insurance
protection by increasing the performance guarantees insurers obligation for
damages [4].
It should be noted that the creation of organizational
forms insurers as insurance pools and other associations, questions the low
legal culture, legal nihilism and distrust of the insurance companies are not
fully resolved. Such problems should be resolved at the general background of
the state of legal education and training.
In addition, to solve the above problem, it is
necessary to raise the level and amount of information about the sources of
environmental hazard, provide assistance (particularly with respect to natural
persons) the ability to effectively defend the legitimate rights through the
courts.
Recovery and a further increase of insurance culture
of the population is one of the major objectives of the State Program on
development of the insurance market of the Republic of Kazakhstan for 2004-2006
and its implementation [5].
In the formation of an insurance culture of the
population plays an important role themselves insurance companies and their
associations who need to increase their interaction with the media, organize
educational and training programs for the general public, to conduct market
research of public demand for insurance services and, if necessary, the
development of new insurance products.
One of the most effective means of increasing public
awareness of insurance and insurance activity should be the release of
specialized publications (which is currently not available), in the creation of
which may participate as professional participants in the insurance market.
In Kazakhstan there were two attempts edition of
specialized publications on the initiative of insurers. But the informational
support of the magazine is not received, the more that the National Bank issued
other academic publications, and a year later the magazine “Business and
Insurance” ceased activity [6].
The problems of legal regulation having the financial
and economic aspect is financial instability, and as a consequence of the low
solvency of many industrial enterprises and some other high-risk sources.
Companies that do not have working capital funds can’t pay premiums and, as a
consequence - to enter into an insurance contract. In the absence of an
insurance policy in organizations operating hazardous production facilities,
its activities are subject to conservation. However, any degree of conservation
does not speak about the absolute safety of such a facility. Low solvency of
many enterprises expressed in the fact that they do not want to be insured in
excess of the established compulsory insurance.
The sum insured exceeds the set, already insured under
voluntary insurance. Thus, the need for effective enterprise interest in the
voluntary liability insurance of hazardous production facilities. Encourage
insure the object over the limit of liability established by the legislation,
you can also by reducing insurance rates for policyholders. Of course, designed
tariff policy the insurance company can benefit both the subjects of the
insurance contract.
In today's market businesses, a source of danger must
be a reasonable approach to the choice of insurer. At this time, the company
relating to a particular industry, or prefer to establish their insurance
companies or work with a proven company.
In addition to the issues identified and to attempt to
determine the mechanism of their solution should be given to ways to improve
regulation and prospects for environmental insurance.
Based on the foregoing, it must be concluded that the
environmental insurance, which is one of the elements of the economic mechanism
for nature conservation and the environment, it is the most promising, due to a
number of advantages. The foregoing is determined primarily by the fact that
the participants relations associated exclusively civil law relations.
Following as general legal trends and trends of environmental law transition
from imperative to dispositive methods of regulation of social relations
environmental insurance is based on contractual relations, which, following the
content of civil law, the principle of responsible freedom. Onerous nature of
contracts and reasonable insurance rates exclude irresponsible approach to
economic activities of insurers.
Subjects of relations connected offsetting rights and
obligations pursuant to which the direction, in this case, to protect public
and private interests. Unlike other types of financial support, most of which
are civil and legal institutions, also has favorable differences.
The title is due to the fact that environmental
insurance, also suggest a broader set of relations. That it provides for the
possibility of financing the implementation of preventive measures, and the
size of the insurance funds and reinsurance operations are able to promptly
implement even large insurance payments.
As a necessary trend in improvement of legal regulation,
in our opinion, it should be noted still not enforced the financing function of
preventive measures in environmental insurance, making it a source of
additional funding for environmental safety facilities. Financing preventive
measures carried out by deducting money from the insurance company established
reserves of preventive measures.
Due to the above funds can be made reconstruction of
hazardous facilities, staff training facility, purchase of technological
equipment and special machinery for the efficient removal of the consequences
of accidents.
Another program on ways to improve the legal regulation
of environmental insurance - involving insurance companies in the circulatory
system of a new type of investment environment, the system of environmental
bonds. This mechanism is aimed primarily at attracting funds for the
implementation of regional programs. Referring to the practice, it should be
noted that the implementation of programs of this level is often a shortage of
funding. In such cases, the solution to this problem is possible through the
issuance of trust bond issue.
Offered in a monograph G.A. Motkin [7, p. 146] circuit
circulation of environmental bonds does not include insurance companies. We
also look at the issue of bonds, investing environmental measures, legislation
should provide for a scheme whereby businesses, a source of danger right to
acquire such bonds and to pay them on account of contracts concluded liability
insurance of hazardous production facilities.
For the purpose of economic benefit to the subjects of
these relations and consequently to maintain a high level of issuance and
circulation need to issue bonds with an agreed discount discount and variable
coupon. When the bond issue amount of the discount will be profit organization
purchasing bonds, and interest on the coupon - profit insurer.
To implement the emission mechanism and treatment of
environmental bonds, given the timing of the possible possession, proposed to
establish a discount (discount) when placed in the amount of 3% of the nominal
value of the bond. Upon the redemption of the bond insurer or other owner of
the variable coupon entitles you to a profit of 4% per annum. To make the
treatment efficiency of the mechanism proposed to establish environmental bond
maturity period of these securities in one year. It is necessary to ensure the
bonds of the State guarantee.
In summary, it should be noted that as a result of the
above schemes organizations operating hazardous production facilities, and
insurers are for a term of the bond issue investors environmental programs.
For the implementation of the program in public relations
is necessary to take a number of regulations. In this case, is not required to
develop and adopt regulations legislative level. It is sufficient to adopt a
number of documents: General Terms and Conditions recognized in accordance with
the laws of the normative act, the decision to issue, as well, in order to
streamline the legal provisions on environmental bonds.
Environmental insurance has a number of features not
actually implemented in the environmental relations. Below is the basic
tendency to consider the economic mechanism:
- There is tightening of liability for damage caused
as a result of environmental pollution;
- Remains an issue of interest of economic entities in
the voluntary environmental insurance;
- The use of compulsory insurance is not always
conducive to the development of the insurance market, its effectiveness depends
on the study of the conditions of insurance and the definition of activities to
be insured;
- Distribution of insurance for certain activities
with a high risk of contamination of uncertainty makes insurance companies
assign higher tariffs, which reduces the efficiency of insurance for the
polluters;
- Requires special attention to the development of
methodologies for assessing risk and damage, as well as reliable statistical
base.
As possible prospects of development of environmental
insurance should be made closer relations on property insurance of natural
objects of the environment from the material damage caused by natural
disasters. As stated in chapter devoted to the formation of concepts, property
insurance, in some cases bears signs of the considered type of insurance. The
most promising is insurance in case of causing property damage by forest fires
and floods.
In our opinion, the intensification of environmental
insurance in the form of property insurance, produced on the background
produced by liability insurance organizations operating objects of industrial
safety, will allow the most optimal way to implement a system of financial
support and a mechanism to ensure environmental safety.
Legislation in the field of environmental insurance and
the whole of the Republic of Kazakhstan as mentioned above is in the process of
formation and development.
In view of the development of market relations and the
emergence of diverse forms of ownership in the field of nature there is a need
in environmental insurance as protection against unforeseen environmental
accidents and disasters in case of compensation for the harm.
President of the Republic of Kazakhstan N.A.
Nazarbayev said in his speech at the opening of the first session of the
Parliament of the third convocation addressed the deputies with the following
speech: “Dear deputies is necessary
to improve the quality of our laws. Only in this way will ensure stability of
the law”. President of the Republic
of Kazakhstan N.A. Nazarbayev also noted that there is a problem with a
lack of laws of direct action, instead of which received countless regulations.
References:
1.
German Federal Law. Act of 1972 (as submitted by November 12, 1996). On the
order of the conservation of the water balance (mode) // constitution and
administration (management) the laws of Germany. - M.: Publishing House BEK,
1999. - p. 74.
2.
T.A. Akimov, V.V. Haskin Fundamentals of eco-development: Proc. allowance. - M.:
Publishing House Norma - Infra, 1994. - p. 240.
3.
German Federal Law. Law of 10 December 1990 on liability for environmental
pollution (as of 1 September 1998) // State and Administrative (administrative)
law. - Baden-Baden: Nomos Publishing House, 1999. - p. 56.
4.
German Federal Law. The Act of 20 December 1911. On insurance (last
modification to October 5, 1994) // German law. - M.: Publishing House BEK,
1997. - p. 30
5.
Bondarenko L.N. Insurance in the transformation of agricultural production in
Russia (study of the modern concept, methodology and organization of crop
insurance): Author. Dis .cand. jurid. Sciences: 12.00.06. - Ufa, 2000. - p.39.
6.
Fursov V.I. The ecological problems of the environment. - Alma-Ata: Ana Tili,
1991. - S. 56.
7.
Motkin G.A. Fundamentals of environmental insurance. - M.: Publishing House of
the Russian Academy of Sciences, 1996. - p. 12.