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Based on the above, one can conclude that the form of the gratuitous use (loan) agreement is determined by the general rules on the form of transactions, stipulated by the Civil Code of the Kyrgyz Republic. However, it should be noted that the Chapter 29 of the Civil Code of the Kyrgyz Republic contains no specific provisions dealing with the form of the gratuitous use (loan) agreement. Nevertheless, according to the Paragraph 3, Article 610, of the Civil Code of the Kyrgyz Republic, a number of rules, specified in Article 543, Article 547, Paragr. 1 and 2, Article 548, Paragr. 2, Article 552, Article 560, Paragr. 2, Article 562, Paragr. 1 and 3 of the Civil Code of the Kyrgyz Republic, shall be applied to the gratuitous use agreement.
Despite the rules of the Civil Code of the Kyrgyz Republic listed above, dealing with the agreements on transfer of property for use, the author's conclusions indicate that the civil law agreements, in general, are not only the major cause of occurrence of obligation, but also the institution, playing a major role in private-law relations of modern society, requiring a clear legislative consolidation.
Thus, the subject of study in this article were the theoretical problems of agreements on transfer of property for use according to the Civil Law of the Kyrgyz Republic. The article contains the scientific analysis and research of the current state of the property lease (rental) agreement, residential lease agreement, gratuitous use (loan) agreement, which attract the attention of scientists to the fullest extent and require not only theoretical understanding, but also practical significance. The author's conclusions shows that the civil law agreements are not only the major cause of occurrence of obligation, but also the institution, playing a major role in private-law relations of modern society, requiring a clear legislative consolidation.
This position is clearly confirmed in the scientific research by M. I. Braginsky, who notes that "the purpose of the agreement is that it serves as a basis for occurrence of obligations" [8]. The agreement on transfer of property for use has the same important role by operating, protecting and ensuring the objectives and goals of the civil law liabilities within the Civil Law of the Kyrgyz Republic.
References:
1. Novitsky I. B., Luntz L. A. General doctrine of obligation. - M.: Gosyurizdat, 1954. - P. 94.
2. Ioffe O. S. Law of obligations. - M.: Gosyurizdat, 1975.
3. Braginsky M. I., Vitryansky V. V. Law of contracts. - M., 1998. - P. 13.
4. Golovanov N. M. Civil law agreements. - St. Petersburg, 2002, - P. 9 et al.
5. Braginsky M. I., Vitryansky V. V. Law of contracts: General provisions. - M.: Publishing office "Statut", 1998. - P. 9.
6. Alekseev S. S. Civil Law. - M., 2004. - P. 227.
7. Peretersky I. S. Transactions, agreements. - M., 1929. - P. 64.
8. Braginsky M. I., Vitryansky V. V. Contractual law. General provisions. - M.: publishing office "Statut", 1998. - P. 15.
Jahollari Heralda, Msc., PhD candidate Business Law, European University of Tirana E-mail: [email protected]
Consumer protection in voluntary insurance relations: compared overview
Abstract: In order to protect the consumer, in a voluntary insurance relationship, the Albanian legislator has provided a set of rules and obligations for companies, which operate in the Albanian insurance market. In compiling the new law 12 EU directives were taken into consideration, which were adopted in the area of insurance law. Keywords: insurance law, approximate legislation, consumer protection.
Protection of the consumer, considered as the weaker party in a business relationship, is an obj ective that lies at the very center of attention of the regulatory authorities, whether at national or international level. The following article will deal with consumer protection in the insurance field, taking a comparative view between the rules that exist in Albania and those countries that are part of European Union law or, otherwise said, part of the acquis communautaire.
Whether consumer interests are well protected or not, can be seen in several aspects of insurance activities. In this regard, we can say that the Albanian legislation has been sufficiently completed, with law no. 52/2014 "On the insurance and reinsurance", which was recently adopted, although there is still need for improvement. Starting with Article 1, the law stipulates that consumer protection and the creation of favorable conditions is one of the key objectives, sought to be achieved. Thus, Article 1 provides that the law no. 52/2014 regulates the establishment, operation and supervision of insurance, reinsurance and broker companies, so that the insurance market operates in a safe, stable and transparent way, in order to assure protection of consumer rights and interests. The consumer is
widely perceived as any person who uses or benefits from the services offered by the insurer or broker.
Changes in domestic legislation in terms of requiring a more effective protection of the rights of clients, can be observed if we compare law no. 52/2014, approved recently with law no. 9267, dated 29.07.2004, "On the insurance, reinsurance and insurance and reinsurance intermediary" that was implemented for a period of ten years, before being repealed by law no. 52/2014. The scope of Law no. 9267 was setting the general principles and rules for insurance and reinsurance companies in the insurance and reinsurance mediation and supervision of state entities that undertake and perform activities provided in this law. So, consumer protection was not provided as a specific goal, in the law passed in 2004.
The inclusion of new provisions, which place the client at the center of attention, in the law no. 52/2014 is undoubtedly the consequence of efforts to align domestic legislation with the acquis communautaire, in the context of Albania's efforts to join the European Union. Thus, one of the prerequisites that a company must meet, in order to be granted the required license to conduct insurance activities, is to present a document containing the company's
policies and internal procedures for handling consumer rights. Article 61 of law no. 52/2014 contains some general principles which the insurer must adhere, to fulfill the obligation that weighs on him, on informing the client. These obligations include, informing the consumer before signing, constantly, while the contract is valid and on an ongoing basis. These obligations to inform apply not only to the insurer, but also to the broker.
At the European Union level, it is Directive 92/49/EEC, which provides for obligations of the insurer about the information that he should transmit to the client, before and after entering the contract. Thus, pursuant to Article 31 of the directive, the insurer must notify the client about:
- The law, which the contract is subject to, when the parties cannot freely choose it or the fact that the parties may freely choose the applicable legislation and, in this case, the law proposed by the insurer.
- Procedures for handling complaints of policyholders including, where appropriate, the existence of an administrative body, without prejudice to the right of policyholders to go to court.
If we compare Article 61 of law 52/2014 with the contents of Article 31 of Directive 92/49/EEC, we can say that the legislator is trying to fully implement the rules contained by the Directive. In addition to the Directive, in formulating article 61 of the law, the Albanian legislature has also considered Article 36 of Directive 2002/83/EEC, which provides that information should be furnished to the customer either before the signing of the contract or during its execution, written in one of the official languages of the country where the contract is entered into. Information can also be given in another language, if requested by the client and if the law of the country where the contract is signed allows it, or if it is the customer who has chosen the law applying to contract.
Directive 2002/83/EEC also allows that customer to be provided with data on the progress of activity of the insurance company, the method of calculating the provisions and the measures taken by the company to have sufficient income to afford payments that can be made, if the criteria are met. The Directive stipulates the obligation of the insurance company to inform the insured of any changes that may occur in the way of calculating the provisions and the consequences of these changes for the client.
Regarding the consequences arising from non-compliance to the obligation of information, the Albanian legislator has recognized the right for the customer to require termination of the contract and payment of damages, if any, if he was not given the requested information or if the given information is untrue, and led to the decision of entering the contract. This rule does not have a specific equivalent in the Directives of the European Union, due to the fact that the decision of the consequences is one of those aspects that are left in the management of Members states and for which the guidelines predict regulation by national provisions of each of them.
To continue compliance of national regulations with rules set by the directives 92/49/EEC and 2002/83/ECC, the Albanian lawmaker added a specific article to law no. 52/2014, which details the information insurers and brokers must give to every customer, in writing, before signing the insurance contract. This information includes general data about the identification of the company, specific data about the rules applying to the contract, the methods used to calculate the premium, payment terms and ways to realize it.
The law also provides for an exception, which applies if the customer requires immediate coverage. In this case, the information concerned may be given verbally. However, if such a situation is presented, after signing the contract, the insurer gives consumers the
information in writing as well. The signing of the insurance contract, the terms or its appendixes means agreement with the information provided verbally and acceptance of the terms.
The insurer and the broker are obliged to inform the insured of any changes to insurance legislation, bankruptcy, mergers, ownership, liquidation or closure of the company in any way, revocation of a license for a certain class or all classes of insurance, and of any other changes or events which impact the rights and obligations of the insured, within 10 calendar days from the date of the event.
The insurer and broker fulfill the obligation of information during the period of contract validity, via the official website, email, fax, telegraph, mail, and secure electronic signature. Information obligation conducted via telephone or communication service center, is considered fulfilled if the telephone conversation is recorded by magnetic or digital means, and the insurer can prove that. These rules, which are provided in Article 64 of law no. 52/2014, align Albanian regulation with principles established by Directive 2002/83/EEC and 88/357/CEE.
Even in this case, to complete the rights that are guaranteed to policyholders regarding the available information, the Albanian legislator has provided that the information should be provided in Albanian and shall be worded clearly and accurately. Exceptionally, information can be given in a language other than Albanian, when so requested by the client and accepted by the insurer.
Alignment with the rules established at Community level, specifically with Directive 92/49/EEC and compliance with trade developments through electronic services, led the Albanian legislator to include in the law no. 52/2014 an article which provides that the insurance company must take all technical and administrative measures to establish information technology infrastructure in accordance with the rules approved by the Financial Supervisory Authority, to inform the insured or other interested persons regarding legal developments and changes in the insurance sector.
The insurance company must establish and maintain an official website, to effectively meet the obligation to inform. It should also prepare, in easy to read formats, a range of information related to company performance, location and its bodies, the coverage provided and the conditions in which they offer their services, rights and obligations of the parties, the procedures for handling compensation claims, statistics and the most recent audited financial statements, together with the auditor's opinion. The company should establish a special link, separate from the main page, which interested persons can access to get all the necessary information, referred to above. Besides this information, the insurance company must make available to interested parties, through the separate link, electronic forms, which allow policyholders and other interested parties, to submit requests for information and redress electronically.
The insurance company also has an obligation to create information technology infrastructure, enabling policyholders and other interested parties, to receive updated information on the insurance contract via the Internet. For contracts of life insurance, the insurance company must provide information, via the website, about premiums calculated and accumulated, the coverage offered and the amounts, possible discounts including commissions, administrative costs and expenses, other amounts accrued and bonuses if any, the amount of delivery of the insurance contract, bonuses and rebates, status for the contract subject to rebate and bonus items. The Financial Supervision Authority has the opportunity, through regulations approved by its Board, to determine additional information that insurance companies must necessarily present on their website.
Law no. 52/2014 also contains some rules in terms of promotional activity, carried on by the insurance company. The law provides firstly, a general principle ofproviding clear and truthful information. The insurance company is responsible for the publication of this information. Then the law gives a definition of promotional information, which includes all information that is disclosed to third parties or possible clients, through publicity in the print and visual media, meetings, phone calls, internet and electronic media, interactive television, as well as any other means by which the promotion goal is achieved. The legislator has given a very broad definition, in order to cover all means of communication, which can be used by insurance companies to make promotions to customers. These rules apply not only to insurance companies, but also to brokers. In this regard, the Albanian legislator has managed to align domestic legislation with Directive 2002/83/EEC (Article 47) and Directive 92/49/EEC (Article 41). The Legislator has completed the domestic legal framework with other rules as well, which despite not relying on a single directive, provide additional guarantees for the consumer, seeking to enter an insurance contract in Albanian territory.
In order for consumer protection to be effective, the law no. 52/2014 provides that the customer has the right to appeal to the society, if it finds that the insurer fails to comply with the contract. The insurance company must respond to the filed complaint in writing or in electronic form and provide any information requested, in relation to the insurance contract, within 15 working days from the date of receipt of the request. In order to address these requests, the company should establish an internal system for dealing with complaints and resolving them in a fair manner.
The insured or any other interested person has the right to turn to the Financial Supervisory Authority for any disappointments in the handling of the complaint by the insurance company. This rule applies also to complaints related to brokers and appraisers. When it deems necessary, the Authority returns the appealed case to the insurance company. The Authority may also, within its supervisory powers, check whether the insurance company is respecting the law requirements and the terms of the insurance contract. The law provides that it is the Financial Supervisory Authority, which provides appeal and review procedures through a regulation (For this purpose, the Financial Supervision Authority has approved the decision of the board no. 35, dated May 28 2015 Regulation "On procedures and reviewing complaints"). In establishing these rules, the Albanian legislator has referred to Article 10 of Directive 2002/92/EEC, which was fully implemented.
The law also provides a procedure for resolving disputes. The insurance company should develop and adopt appropriate internal procedures to be implemented in cases where the parties agree that disputes between the insured or customers and the insurance companies or brokers should be resolved out of court. The insurance company publishes information on nonjudicial dispute settlement
rules as part of the conditions of the insurance contract. In case of a disagreement because of uncertainties created by the language used in drafting the terms of the insurance contract, drawn up by the insurer, the resolution of disputes shall be done by interpreting the conditions in favor of the insured. The insured, the beneficiary or any other injured party has no right to bring a civil action suit against the insurer if he has previously agreed on a compensation amount. This procedure is defined taking into account the rules put in place by Articles 6 and 7 of Directive 87/344/EEC and Article 11 of Directive 2002/92/EEC, which were fully implemented.
To enable the correct handling of the information gathered from customers, the law provides that the insurance company and brokers are required to maintain the confidentiality of data, facts and circumstances relating to the insured and what they gather during the exercise of the activity. Liability for disclosure of information is a principle, which does not apply only if the customer gives his consent in writing, to provide information, or if this information is needed in the framework of an investigation, whether from police and judicial organs or administrative bodies. In this aspect, the national legislation is aligned with the arrangements provided for in Article 24 of Directive 2005/68/EEC, in Article 29 of Directive 2001/17/EEC, in Article 16 of Directive 2002/83/EEC and in Article 16 of Directive 92/49/EEC which were fully implemented. To coordinate these new rules with the existing legal framework in place, the law no. 52/2014 provides that the insurance company collects, preserves, deposits and uses personal data, which are required for entering into insurance policies and for resolving complaints arising from any security issue, in accordance with law no. 9887, dated 10.03.2008, "On protection of personal data", as amended.
Rules applicable to the level of the European Union, are fulfilled even more with the approval of the Distribution Insurance Directive adopted on 14 December 2015. This directive has changed and clarified some provisions of Directive 2002/92/EEC. It also established the repeal of this Directive, on a later date, after the expiration of a period of 24 months from the date of entry into force of the directive adopted in December 2015. The new Directive includes rules that apply to the financial independence of intermediaries, their obligation to disclose revenue obtained by insurance companies, the powers of controlling bodies ofinsurance companies or and the obligation of companies to train employees a certain number of hours.
In this regard, given that the Albanian law was adopted before the directive of December 2015, in the future, it will be necessary to realize some interventions in the text, with the aim of strengthening the rules for the financial independence ofbrokers and intermediaries and to require mandatory training and education of employees who participate in the various stages of negotiating and executing of insurance contracts. On these points, the Albanian legislation can be improved even more, in terms of increasing the guarantees and protection of consumer rights.
References:
1. Law nr. 52, dated 22.05.2014 "On the insurance and reinsurance".
2. Law nr. 9572, dated 03.07.2006 "On the Financial Supervisory Authority".
3. Law nr. 9267, dated 29.07.2004 "For the activity of insurance, reinsurance, and intermediation in insurance and reinsurance".
4. AMF Board Regulation, approved with decision nr. 35, dated 28.05.2015 "On procedures and reviewing complaints".
5. AMF Board Regulation, approved with decision nr. 36 dated 28.05.2015 "For the information of the insured or other interested persons, in terms of legal developments and changes in the insurance sector".
6. Directive nr. 87/344/ECC, dated June 22, 1987.
7. Directive nr. 88/357/EEC, dated June 22, 1988.
8. Directive nr. 92/49/EEC, dated June 18, 1992.
9. Directive nr. 2001/17/EEC, dated March 19, 2001.
10. Directive nr. 2002/83/EEC, dated November 05, 2002.
11. Directive nr. 2002/92/EEC, dated December 09, 2002.
12. Directive nr. 2005/68/EEC, dated November 16, 2005.
13. Insurance Distribution Directive, dated December 14, 2015.
Plakhotnik Oleg V., Ph. D. (Legal Sciences), Associate Professor of the Department of Justice, Faculty of Law of Kyiv National University named after Taras Shevchenko E-mail: [email protected]
Criminal proceedings on the territory of diplomatic missions and consular institutions of Ukraine
Abstract: The suggested article deals with the questions of criminal proceedings, covering the proceedings outside the state border of Ukraine: on the territory of the diplomatic missions, consular offices of Ukraine, as well as the order of the proceedings by authorized officials in certain areas in the case of a criminal offense under the Criminal Procedure Code of Ukraine, and existing international instruments defining the legal status and jurisdiction of Ukraine in external international relations.
Keywords: human and civil rights, diplomatic missions, consular offices of Ukraine, a procedural order, international agreements, legal status, criminal proceedings.
Investigation of crimes committed on the territory of the diplomatic missions and consular offices of Ukraine has its own procedural order defined by the Code of Criminal Procedure. Problematic issues related to ensuring the human and civil rights are the most pressing issues during the execution of procedural rules in compliance with the basis of the law and implementation of the principle of law supremacy during the investigation on the territory of the diplomatic or consular mission of Ukraine abroad. Criminal proceedings, providing for procedural actions may be carried out outside the state border of Ukraine: on the territory of the diplomatic missions and consular institutions of Ukraine. The order of proceedings by authorized officials in certain areas in the case of a criminal offense is conducted in accordance with the Code of Criminal Procedure [1], as well as existing international instruments defining the legal status and jurisdiction of Ukraine in external international relations. These international instruments include the Vienna Convention on Diplomatic Relations of04.18.1961 [2], the Vienna Convention on Consular Relations of24.04.1963, etc. [3].
The peculiarities of the proceedings outside the state border of Ukraine are the following:
a) a special procedure for the start of pre-trial investigation;
b) a separate category of officials authorized to carry out proceedings outside the state border of Ukraine;
c) a list of the proceedings, which may be held by the relevant officials.
1. The start of the pre-trial investigation has a special procedure. On receipt of the application, the message, the self-revealing signs of a criminal offense or from other sources, if it became aware of a criminal offense in the territory of the diplomatic or consular mission of Ukraine abroad, officials defined by p. 1, Art. 519 of the Criminal Procedure Code must immediately carry out the necessary procedural steps and begin pre-trial investigation. According to p. 3 art. 214 of the CPC information about a criminal offense should be entered in the Unified Register of pre-trial investigations at the earliest opportunity.
CCP provides that information in the Unified Register of pre-trial investigations may be entered after the establishment of
connection with the authorized persons in Ukraine competent to entering information in Unified Register of pre-trial investigations, in accordance with p. p. 1, 2 art. 210 of the Code of Criminal Procedure. These authorized persons are the investigator, the prosecutor, or another official person authorized to accept applications and register the criminal offenses and report according to part 4 of Art. 214 of the Code of Criminal Procedure.
2. Proceedings outside the state border of Ukraine can only be carried out by a separate category of authorized officials. According to Part 1 of the Criminal Procedure Code of Ukraine st. 519 those officials authorized to perform procedural actions are the following: the head of a diplomatic mission or the consular post of Ukraine — in the case of a criminal offense in the territory of the diplomatic or a consular mission of Ukraine abroad.
According to Sect. 2.4 of «Regulations on the diplomatic mission of Ukraine abroad» from 22.10.1992 [4], the diplomatic mission of Ukraine is a permanent institution of Ukraine abroad, which is designed to maintain official interstate relations, as well as to carry out the mission of Ukraine to protect the interests of Ukraine, the rights and the interests of its citizens and legal entities. The head of the diplomatic mission of Ukraine is an ambassador, an envoy, or a charge d'affaires. In accordance with Articles 1, 2 of «The Consular Statute of Ukraine» dated April 2, 1994 [5], the consular offices of Ukraine abroad protect the rights and interests of Ukrainian legal entities and Ukrainian citizens. Consular offices contribute to the development of friendly relations between Ukraine and other countries, to the expansion of economic, trade, scientific-technical, humanitarian, cultural, sports ties and tourism. Consular offices assist people from Ukraine and their descendants to keep in contact with Ukraine. The consular offices of Ukraine abroad are — the general consulates, consulates, vice-consulates and consular agencies. The head of a consular post is a general consul, consul, vice-consul or consular agent.
According to a general rule, the head of the diplomatic mission or a consular post of Ukraine abroad, has to designate another official, authorized to commit the proceedings if he is injured as a result of a corresponding criminal offense in accordance with
