Slavnić, prof. dr Jovan

An article by Nataša Petrović Tomić, Associate Professor at the Law Faculty of the University of Belgrade, was published under the above title and categorized by the editor as a scientific paper, in the issue 2/2018 of the “Insurance Trends Journal” (pp. 7-18). The article outlined and partially analysed the proposal / initiative / idea for adoption of a Special Insurance Contract Law of the Republic of Serbia. According to this idea, the inland insurance contract would be excluded from the Preliminary Draft of the Civil Code of the RS, which was completed by the Commission for drafting the Civil Code of the RS of the Government of RS and, instead, standardized under the mentioned Special Law. When presenting and elaborating on the subject idea and/or other proposals/initiatives/ideas concerning the regulation of the insurance contract under the Insurance Contract Law, the author failed to mention that her proposals/initiatives/ideas presented in the Article were not new and original, but have already been written of in the respectable literature published before this Article, supported by arguments and that those proposals/initiatives/ideas she was presenting were not the only possible and justified ones but that there were other, better and more suitable solutions for improving the regulatory framework through which the reform of the insurance contract in Serbia is to be implemented into the Serbian insurance law. The named Article also contains the incorrect and inaccurate statements and allegations that I cannot agree with, since they are doubtful.

        Considering the differences in legal sources of continental European countries reformed in the last 16 years regulating non-marine insurance contracts, which before all relate to the manner of creation and core of the insured’s obligation to cooperate with the insurer in establishing the occurrence of an insured event and the amount of the insurer’s obligation to indemnify, the author of this paper discusses several important issues relevant for the modern regulation of this obligation in the future Civil Code of the Republic of Serbia. Third draft of the said piece of legislation was issued by the Serbian Government Committee for drafting the Civil Code on 29th May 2015. One of the main issues discussed herein pertains to these differences: should this obligation, not regulated as insured’s legal contractual obligation under the applicable Law on Contracts and Torts from 1978 i.e. under the Insurance Contract Law of Serbia, be regulated as a legal contractual obligation or a stipulated obligation and to what extent, that is, to what extent should it be regulated by the insurer under the insurance conditions? In addition, should this obligation, which is recognized in all insurance lines, be regulated as a single obligation incorporating insured’s obligation to notify the insurer of the occurrence of an insured event, or as an independent one, separated from the latter? If it is regulated as an independent one, does it and to what extent does it form a legal entitety with the insured’s obligation to notify the insurer of the occurrence of an insured event? How to create this obligation in terms of its effect: should it arise at insurer’s request or without it, as a legal contractual obligation or a stipulated one incurred by the insured ex lege, i.e, based on a stipulation in a contract?

Also, the author discusses the issue as to how many elements this obligation should contain and the extent to which it should be regulated under the law, as well as the details, i.e. elements the said obligation should comprize in terms of the duties of the insured towards the insurer so that it is in line with the modern insurance needs in Serbia. Also, should these duties, which are part of the obligation to cooperate, be limited by law or contract? Which persons in insurance, other than the insured, should be defined as persons under this obligation? How should the insurer sanction the insured who has breached the obligation? Finally, how should the type and severity of fault of the insured who breached the said obligation affect the type of right the insurer has and in what way? The author also discusses the issue of adequate terminology applied to this obligation in our domestic law, for which legal systems of European continental countries analysed in this paper used different expressions or did not name at all.

The analysis of these issues is carried out, on the one hand, in view of the solutions adopted in the reformed laws of European countries that are, from the aspect of non-marine insurance, finances and economy in general, considered one of the most developed European countries with the most progressive non-marine insurance contract law (Germany, Austria, Switzerland and France), and on the other hand, in the reformed laws applicable in peripheral European countries, in order to establish the extent and areas in which they follow the modern legislation in the most developed countries, bearing in mind the non-marine insurance contract law in particular (The Czech Republic, Bulgaria and Romania). The paper also analyses solutions contained in the international document that should serve as a basis for drafting the future directive on the European (non-marine) Insurance Contract Law, adopted on 1st of November 2015, under the title the Principles of the European Insurance Contract Law. As regards this document, even when it was in a form of the Draft in 2007, i.e. 2009, the European academic community generally considered it a progressive and balanced protection system of the insured and the insurer.

Key words: the insured, the insurer, obligation, cooperation, notification, submission of documentation, breach of obligation, consequences.

Considering the differences in legal sources of continental European countries reformed in the last 16 years regulating non-marine insurance contracts, which before all relate to the manner of creation and core of the insured’s obligation to cooperate with the insurer in establishing the occurrence of an insured event and the amount of the insurer’s obligation to indemnify, the author of this paper discusses several important issues relevant for the modern regulation of this obligation in the future Civil Code of the Republic of Serbia. Third draft of the said piece of legislation was issued by the Serbian Government Committee for drafting the Civil Code on 29th May 2015. One of the main issues discussed herein pertains to these differences: should this obligation, not regulated as insured’s legal contractual obligation under the applicable Law on Contracts and Torts from 1978 i.e. under the Insurance Contract Law of Serbia, be regulated as a legal contractual obligation or a stipulated obligation and to what extent, that is, to what extent should it be regulated by the insurer under the insurance conditions? In addition, should this obligation, which is recognized in all insurance lines, be regulated as a single obligation incorporating insured’s obligation to notify the insurer of the occurrence of an insured event, or as an independent one, separated from the latter? If it is regulated as an independent one, does it and to what extent does it form a legal entirety with the insured’s obligation to notify the insurer of the occurrence of an insured event? How to create this obligation in terms of its effect: should it arise at insurer’s request or without it, as a legal contractual obligation or a stipulated one incurred by the insured ex lege, i.e, based on a stipulation in a contract?
Also, the author discusses the issue as to how many elements this obligation should contain and the extent to which it should be regulated under the law, as well as the details, i.e. elements the said obligation should comprize in terms of the duties of the insured towards the insurer so that it is in line with the modern insurance needs in Serbia. Also, should these duties, which are part of the obligation to cooperate, be limited by law or contract? Which persons in insurance, other than the insured, should be defined as persons under this obligation? How should the insurer sanction the insured who has breached the obligation? Finally, how should the type and severity of fault of the insured who breached the said obligation affect the type of right the insurer has and in what way? The author also discusses the issue of adequate terminology applied to this obligation in our domestic law, for which legal systems of European continental countries analysed in this paper used different expressions or did not name at all.
The analysis of these issues is carried out, on the one hand, in view of the solutions adopted in the reformed laws of European countries that are, from the aspect of non-marine insurance, finances and economy in general, considered one of the most developed European countries with the most progressive nonmarine insurance contract law (Germany, Austria, Switzerland and France), and on the other hand, in the reformed laws applicable in peripheral European countries, in order to establish the extent and areas in which they follow the modern legislation in the most developed countries, bearing in mind the nonmarine insurance contract law in particular (The Czech Republic, Bulgaria and Romania). The paper also analyses solutions contained in the international document that should serve as a basis for drafting the future directive on the European (non-marine) Insurance Contract Law, adopted on 1st of November 2015, under the title the Principles of the European Insurance Contract Law. As regards this document, even when it was in a form of the Draft in 2007, i.e. 2009, the European academic community generally considered it a progressive and balanced protection system of the insured and the insurer.

Key words: the insured, the insurer, obligation, cooperation, notification, submission of documentation, breach of obligation, consequences.