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Contract of obligatory insurance of employer’s liability for damage to life and health of employee under the legislation of the Republic of Kazakhstan
Muidenova Aliya Kalzhanovna, senior lecturer, master of law of Korkyt Ata Kyzylorda state university, the Republic of Kazakhstan
Zhussupova Bota Malikovna, senior lecturer, master of law of Korkyt Ata Kyzylorda state university, the Republic of Kazakhstan
The course for construction of legal state predetermined the means to ensure the preservation and protection of the rights and interests of citizens of the Republic of Kazakhstan – the subjects of legal relations. It is one of the basic principles, one of the basic conditions of further development of the civil legislation which must meet the requirements of the further democratization of the society and the objectives of the social and economic development harmoniously combining the priority of human rights with the interests of the society and the state. This is noted in Conception of legal policy of the Republic of Kazakhstan (hereinafter - RK), approved by Decree of President of RK from September 20, 2002 .
One of the fundamental principles of the civil right is the implementation of personal civil right. The obligatory insurance of employer’s liability for damage to life and health of employee is the measure that enables the injured person to implement the right provided by the law for compensation of the damage in the case of impossibility to perform his obligations to compensate it by the guilty party.
The topicality and necessity of obligatory insurance of employer’s liability for damage is caused by the growth of occupational injuries in Kazakhstan including the death.
One of the important directions that can be implemented through the development of the legal base and enforcement practice is the strengthening and improvement of the institute of contract relations contributed to the creation of the fundamentals for the guarantee of human rights and freedom. One of the means that guarantees the implementation of the subjective rights of the participants of the civil legal relations is the insurance contract concluded in accordance with Law of RK “On obligatory insurance of employer’s civil and legal liability for damage to life and health of employee in the performance of job (official) duties” from February 07, 2005 № 30-III (hereinafter - Law).
According to the priorities of the state development of the Republic of Kazakhstan focused on the implementation of “Strategy of Kazakhstan’s joining the 50 most competitive countries of the world: Kazakhstan on the verge of the new step forward in its development” there are the objectives on creation of attractive and transparent conditions in insurance industry through the increase of competition in this sector .
The obligatory insurance of employer’s civil and legal liability for damage to life and health of employee is an optimal combination of state interests, a person caused damage – the injured, insurance companies dealt with the entrepreneurship activity and working citizens.
The obligatory insurance of employer’s civil and legal liability for damage to life and health of employee in the performance of job (official) duties has always been the measure for the protection of the property interests of the injured people.
The goal of obligatory insurance of employer’s civil and legal liability for damage is to ensure the employee’s right for compensation of damage, and the protection of property interests is the aim of the contract concluded in this type of insurance. Even if nobody infringes on the employee’s right and no one breaks it, in the case when the employer is insolvent, the right of employee for damage compensation cannot be implemented due to the objective reasons. The obligatory insurance of employer’s liability is used in order to avoid this and to create the conditions for implementation of subjective civil right for the damage compensation in the case of insolvency of the person caused damage.
This obligatory type of insurance is considered to be the measure for the protection of the property interests and implementation of right for damage compensation.
The employer’s property interests are protected due to the conclusion of the contract of obligatory insurance of employer’s liability, the contract is concluded in favor and in interests of the insured employer who is considered to be the insured according to the contract; the design of the contract made in favor of the third person is not used with the regard to this contract. It is possible to use the design of readdressing of performance, when the insurance case comes the insurer makes insurance payment in the address of the third person – the employee but in favor and interests of the insured, i.e. employer.
In the liability insurance the responsibility of the insured is insured and as the insurer is not free from making insurance payment when the insurance case comes according to the contracts of obligatory insurance of employer’s civil and legal liability for damage, we substantiated the viewpoint of limitation of subrogation right .
The obligatory insurance of employer’s civil and legal liability for damage which enables to solve the problems of compensation of damage to employee’s life and health in the performance of job (official) duties is a complex measure. Taking into consideration the peculiarities of obligatory insurance, one can state that the obligatory insurance of employer’s civil and legal liability for damage to employee’s life and health allows solving some objectives simultaneously:
- implements the principal rules of Constitution, civil and labor legislation;
- involves a lot of possible participants of insurance relations both in the large cities and in the provinces of the country;
- prevents the offences and makes the employer to take all measures in order to decrease and prevent the possibility of damage to life and health of his employees;
- guarantees the injured person the damage compensation even in the case of enterprise liquidation, as well as in the cases if the employee works for another company after he gets injuries;
- ensures the certain economic condition of the employee and his family in the case of the death of the injured person;
- distinguishes the responsibility of the state and employer;
- releases the state from the costs in the case of liquidation of the person caused damage and insufficiency of his means;
- protects the property interests of the latter;
- develops the insurance and becomes profitable for insurer and the insured;
- increases the level of guarantee of the performance of the obligations by the insurer and the insured, as well as the level of competitiveness between insurance companies due to the obligatoriness of performing the requirements of the normative legal acts which regulate the obligatory insurance;
- encourages the insurer to increase the quality of the insurance services provided;
- applies the flexible system of tariff rates;
- creates the investment resources by attracting the savings of companies and population on the long-term basis since the money means can be involved in the activities of various financial institutions, and therefore, they can strengthen the relationships of insurance companies with other institutions;
Affects the stability and solvency of the financial operations of the insurer, since the mandatory insurance trust formed insurance funds, money supply by the insurer involved in the implementation of business activity, increased financial base of the insurance company, and hence its ability to pay.
- carries the social nature.
Thus, there is every reason to believe that this measure, along with other institutions maximize combines the interests of individuals, society and the state, as well as the right to use in accordance with its social purpose.
Compulsory employers liability insurance for injury will promote a sense of social optimism in society, rational use of available legal resources achieve maximum positive effect in addressing socio-economic and socio-political problems, the development of national insurance market in Kazakhstan and consolidation of the insurance business in the economic infrastructure.
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