Called to protect the rights of citizens in the insurance market, in the field of lending and placement of funds, explains the head of the Main Directorate of the Bank of Russia for the Central federal district Nadezhda Ivanova.
There are financial ombudsman institutions in many Western countries. Its main task is to resolve disputes between citizens and financial organizations before court in cases where the parties were unable to do so themselves. The relevance of creating the institution of financial ombudsmen is confirmed by the number of claims from consumers of financial services received in the courts: in 2017, there were more than 390 thousand of them on compulsory motor liability insurance issues alone.
What types of disputes does the financial ombudsman have to deal with? First of all, related to violations of citizens' rights by insurers, including insurance companies, as well as consumer lending to citizens.
The Financial Ombudsman will consider appeals from citizens if the amount of claims for the collection of monetary amounts does not exceed 500 thousand rubles (and in relation to compulsory motor liability insurance - regardless of the amount of the claim). At the same time, no more than three years must pass from the moment when the consumer of financial services learned or should have learned about the violation of his rights.
Before contacting the financial ombudsman, the consumer must first make a statement in writing or electronically directly to the financial institution whose actions he intends to challenge. Only after receiving a refusal from a financial organization, or not receiving a response within the prescribed period, does he have the right to contact the financial ombudsman. The law establishes strict deadlines for consideration of a dispute by the ombudsman - 15 days from the date of transfer of the appeal to the financial ombudsman. These deadlines can be extended by ten days if it is necessary to conduct a technical examination. The Financial Ombudsman's decision comes into force ten working days after it is made.
The financial company is obliged to inform the financial ombudsman about the execution of his decision or about the refusal to execute. If the company has not complied with this decision, the commissioner issues the citizen a certificate, which, in essence, is an analogue of a court decision. Based on this certificate, the bailiff enforces the decision of the financial ombudsman.
The decision of the financial ombudsman can be appealed in court either by the consumer himself or by the financial company. In this case, a citizen can go to court within 30 days after the decision enters into force, and finance company- only for ten days. If the court rules in favor of the citizen, the company may also be awarded a fine of 50 percent of the amount of the claim.
The law gives the financial ombudsman independence from federal and regional authorities. there will be a Board of Directors of the Bank of Russia (upon the proposal of the Chairman of the Bank of Russia, agreed with the President of the Russian Federation) for a period of five years. At the same time, it is prohibited to hold the position of financial commissioner for more than three consecutive terms.
Quite stringent requirements are imposed on a candidate for the position of financial ombudsman. They can be a Russian citizen of at least 35 years of age with a higher legal or economic education, who has experience in the financial market, regulation, control and supervision in the financial market or the protection of the rights of consumers of financial services for a total of at least five years, or who has worked as a judge for at least five years. less than ten years.
The financial ombudsman has no right to work in government bodies or engage in commercial activities. He can teach, conduct scientific and other creative activity. Of course, he must have an impeccable business reputation and be independent of the parties when considering a specific request.
At the formation stage, the work of the financial ombudsman service will be financed by the Bank of Russia. Then the source will be contributions financial organizations, the size of which will depend on the number of disputes lost, the completeness and timeliness of execution of decisions. The final calculation formula will be determined by the Council of the Financial Ombudsman Service and will be made public.
Financial institutions that resolve disputes with a consumer before the consumer contacts the financial ombudsman or before a decision is made will be waived or pay a minimum dispute fee. Information about such disputes will not be included in the financial ombudsman's public reporting.
The entry into force of the law will be gradual. The preparatory period will begin on September 3. From June 1, 2019, the law will become mandatory for the MTPL segment, and from November 28, 2019 - for other types of insurance.
From January 1, 2020, it will apply to microfinance organizations, and from January 1, 2021 - to banks, credit cooperatives, non-state pension funds, and pawnshops.
Voluntary financial organizations can join the system of financial ombudsmen 90 days after the law comes into force - from December 3, 2018 (there are already insurance companies, banks and microfinance organizations that are ready to do this). Voluntary early accession is encouraged and will be taken into account by the Bank of Russia when carrying out supervision.
People who are far from legislation and politics do not know who the ombudsman is and what his functions are. Most citizens, due to their ignorance, do not even suspect that by contacting this official, they can resolve a number of issues that are difficult to resolve with other authorities (prosecutor’s office, court, etc.).
Who is an ombudsman
An ombudsman is an official or official appointed to this position to monitor the activities of ministries, departments and other government bodies. It acts both on complaints from citizens and on its own initiative and is guided not only by legislation, but also by justice.
For example, the ombudsman in Russia is the Commissioner for Human Rights. In principle, in any country where such an office is established, an ombudsman can resolve issues regarding failure to fulfill their duties or abuse of their powers by officials, resulting in disputes between the citizen and the authorities.
The history of the origin of the position of “ombudsman”
According to history, the meaning of “ombudsman” (word) was first deciphered back in the 16th century in Sweden. The official holding this position supervised the work of the court: 
transparency court hearings, fairness of sentencing. After the defeat of the Swedes near Poltava, the competence of the Ombudsman was significantly expanded. Due to the fact that King Charles Xll of Sweden for a long time stayed in Turkey, the management system had fallen into disrepair and required a major restoration of order. An official (the Royal Justice Ombudsman) was appointed to the post of ombudsman, who supervised the activities of government officials. The second ombudsman, whose role was to monitor the royal administration and the judiciary, received the title of Chancellor of Justice. In 1809, the institution of the Ombudsman of Justice appeared in Sweden, which was separate from that which was subordinate to the king.
Thus, the chancellor stood in defense of the king, and the parliamentary ombudsman stood in defense of the interests of peasants and workers. Today, the meaning of the word “ombudsman” is known firsthand by the population of countries such as Denmark, Russia, Ukraine, Sweden, Norway, Italy, Poland, Portugal, Great Britain, France, South Africa, etc.
Who can contact the Ombudsman?
The Human Rights Ombudsman considers complaints from individuals who are citizens of the country, foreign citizens, stateless persons who have a residence permit or are simply located on the territory of the state. Complaints are accepted from people who have previously applied to the court or administrative authorities, but do not agree with the decision. 
or noticed any violations, were discriminated against, or were dissatisfied with complete inaction.
Main tasks of the Commissioner for Human Rights
The main tasks of the ombudsman, regardless of the country in which he holds his position:
- Restoring justice and rights that have been violated.
- Conducting activities aimed at development international relations in the field of human rights.
- Educating citizens about their rights.
- Improving the country's legal legislation regarding citizens.
- Control over the work of government agencies.
Ombudsman Institute in Russia
The position of Human Rights Commissioner in Russia first appeared in 1994. The first ombudsman of the Russian Federation - Sergei Kovalev - was appointed State Duma. In 1998-2004, this position was held by O. Mironov, and since 2004 - by V. Lukin. In Russia there is a law “On the Commissioner for Human Rights in the Russian Federation”, on the basis of which these specialists perform their duties.
What does ombudsman mean to Russians? In short, this is an intermediary between the victim 
party (citizen) and officials who protects the rights and interests of citizens. But its activities are not limited to just considering complaints or applications. The Ombudsman, on his own initiative, conducts an investigation, collecting information about gross violations or complete inaction of any authorities.
Powers of the Human Rights Ombudsman in Russia
The Ombudsman in Russia, who protects the rights of citizens, has a number of powers:
- Protects the rights of citizens, and also monitors their observance by government bodies and officials.
- He makes a report to the State Duma with a request to organize a parliamentary commission to investigate the facts of mass violations of citizens' rights.
- If facts of violation are revealed, he applies for the initiation of criminal proceedings or administrative proceedings against the official(s).
- Applies with a petition to verify the correctness of a court decision (ruling or sentence) that has entered into force.
- Applies to the court with a request to protect the rights and freedoms of citizens that have been violated by unlawful actions or inaction of government agencies or officials.
- Appeals to the Constitutional Court regarding violations of the constitutional rights of citizens.
Financial Ombudsman
Who is the financial ombudsman? This is an official who helps resolve a number of controversial issues that have arisen between a citizen and the bank. This could be a refund issue. credit cards, unreasonably inflated penalties and fines for long-term loans, re-issuance of a loan from foreign currency to national. Financial ombudsmen also resolve issues regarding unlawful actions of collection agencies and their employees.
But the most common complaints are regarding banks’ refusal to restructure loans. This is due to an increase in the amount of debt along with fines and penalties, which as a result is almost impossible to pay. The ombudsman's task is to negotiate with the bank and convince it to make concessions in the form of partial lifting of sanctions, subject to payment of the remaining amount according to the agreed schedule.
Insurance Ombudsman
The intervention of an ombudsman (we discussed above who an ombudsman is) in the insurance sector is no less in demand. Some insurance companies violate the terms of the contract if the amount of insurance is insignificant, hoping that the client will not start legal delays. Insurance ombudsmen work in almost all countries where this position is provided. For example, European insurance companies treat them with respect, since the powers of these officials are quite broad and they have enough rights. Moreover, it is not profitable for European companies to save on non-payment of insurance, since the services of the ombudsman are paid for by them, and not by the policyholders.
The institution of ombudsman in Germany is also well developed. The only drawback of the system is that only members of trade unions of insurance organizations can use the services of officials, and when the case is transferred to the prosecutor's office, the ombudsman's influence on the outcome of the case ends.
Ombudsman for entrepreneurs
The Ombudsman for Entrepreneurs appeared as a separate independent position not so long ago. The list of his responsibilities includes:
- Filing claims aimed at protecting the rights of entrepreneurs.
- Acting as a defense lawyer in business court.
- Registration and submission of requests to authorities at the state and local level for the affairs of entrepreneurs.
- Visiting and consulting suspected or convicted citizens whose cases are related to business activities.
Features of the institution of ombudsmen for the protection of the rights of the population
Based on the experience of European countries, it becomes clear that by resorting to the help of an ombudsman, a number of minor conflicts can be resolved. But there are also disadvantages to this system. For example, the decision made by the Ombudsman of Ukraine is voluntary for insurance and credit organizations for two years. And only after this time it becomes binding. Also, the Ombudsman cannot consider controversial issues that have been referred to court or for which an arbitration decision has already been made. The advantage of the system is that consumers will no longer need to go to the courts and waste their time (and money on lawyers).
Children's Ombudsman
Children's ombudsmen protect the rights of minor citizens of the country. Their responsibilities include:
- Protection and restoration of children's rights.
- Consultations, education, training of children regarding their rights.
- Work with federal authorities, local and state authorities upon requests and receipt of necessary information or documents.
- Visiting organizations and authorities to obtain clarification and check their activities related to the rights and freedoms of children.
- Preparation and submission to the relevant authorities of recommendations to improve their work regarding the observance of children's rights.
- Involvement of specialists to conduct analytical work related to the protection of children's rights.
Some countries have a school ombudsman position. It provides assistance to all participants in the educational process: children, teachers and parents. Anyone who believes that violations of students’ rights are occurring during the learning process can contact him. This may be a misunderstanding between the teacher (school administration, class teacher) and the schoolchild, as well as the need for consultation regarding the rights of the child within the school, clarification of organizational issues, hygiene standards, standards, etc. Also, by contacting the Ombudsman, you can make suggestions regarding improving the educational process and institution. The school rights ombudsman works in the following areas:
- Active participation in the School Council, the purpose of which is to improve the work of governing bodies.
- Work aimed at prevention bad habits schoolchildren.
- Monitoring compliance with all rights and freedoms of students.
- Work with parents and parent committees aimed at improving family relationships.
- Psychological and legal support for school employees aimed at preventing emotional burnout.
How does this system work?
Regardless of the direction in which the ombudsman works, the scheme of his actions is almost standard. As mentioned above, he works on the basis of a complaint received from a private individual or on his own initiative. The Commissioner cannot examine a case that has been referred to court. During the period of consideration of the controversial issue by the Ombudsman, the applicant undertakes not to refer the case to court.
Before contacting to this specialist the citizen must submit a complaint in writing to the bank or insurance company and wait for a response within 30 days. A complaint sent to the Ombudsman must be formalized in the form of an application with copies of documents attached to it (agreements, correspondence, receipts, etc.). The specialist examines disputes regarding financial institutions that have joined the institute. However, the decision made by him cannot be appealed.
But the ombudsman can send proposals to resolve disputes to credit institutions or send an appeal to the court. The result of the consideration of disputes is a conciliation agreement signed by the parties, or a resolution resolving them.
"Legal and legal work in insurance", 2009, N 4
The article analyzes the practice of using the institution of insurance ombudsmen and insurance arbitration courts in various countries of the world, provides a legal analysis of the concept and goals of the activity, the organizational and legal form and prerequisites for the introduction of these institutions in Russia.
The need to develop institutions of insurance ombudsmen and insurance arbitration courts
To date, an insurance community system has been formed and operates in Russia, which includes hundreds of insurance and reinsurance companies, insurance brokers, thousands of agents, related organizations, and most importantly - millions of insured clients, which include both legal and individuals. Naturally, when the participants interact insurance market disagreements and conflicts often arise, often of the same type.
Since the activities of most insurance organizations are of a massive nature, being associated with insurance of the population, the financial instability of many of them, especially during a crisis, as well as other reasons cause a massive failure to fulfill or improper fulfillment of insurance obligations to clients and subsequently conflicts.
The structures to which clients of insurance companies turn with complaints and demands against insurers are federal Service insurance supervision, as well as the courts. Recently, the practice of filing complaints with such a self-regulatory organization as the Russian Union of Auto Insurers (under OSAGO contracts) has also emerged. Some clients, logically assuming that by the appropriate authority state control over compliance with the rights of policyholders is Rospotrebnadzor, they do not achieve any results, since the Law of the Russian Federation of 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” does not extend its action and jurisdiction of this body to the insurance market.
At the same time, the number of disputes is growing every year.
The number of complaints received from policyholders to the Federal Insurance Service of Russia in the first quarter of 2008 was 3,475, in the first quarter of 2009 - 6,769.
Compared to the first half of 2008, the number of insurance disputes considered by arbitration courts in the first half of 2009 increased by 400%<1>and amounted to 35 thousand.
<1>See: Selivanova M. Arbitration kicks out debts // RBC daily. 09.09.2009.The number of claims for the collection of insurance compensation received in the courts of general jurisdiction for 12 months of 2008 amounted to 58,046, for the first half of 2009 - 49,128<2>.
<2>See: Summary statistical reports on the activities of courts of general jurisdiction for 12 months of 2008; summary statistical reports on the activities of courts of general jurisdiction for the first half of 2009.The situation is worsened by the fact that appeals from clients who have complaints against insurers have taken on a “fan” character: a dissatisfied person simultaneously contacts several structures that are forced to simultaneously respond to the complaint.
This situation calls into question the effectiveness of resolving conflicts between insurers, on the one hand, and their counterparties, primarily clients, on the other hand. It is extremely difficult for the main market regulator - the Federal Tax Service of Russia - to resolve such conflicts for the following reasons:
- The legally established competence of the Federal Tax Service of Russia does not include the function of resolving disputes. The opinion of the insurance supervisory authority, which examined the client’s complaint, is advisory for the insurer, but not mandatory, which in the end result in most cases still leads to judicial consideration of the dispute;
- There is a shortage of qualified employees on the staff of the insurance supervisory authority, with a growing flow of complaints that distract the supervisory authority from working on issues of its competence.
As for the courts, the state judicial system causes significant criticism among members of the insurance community, the reasons for which are:
- the lack of knowledge among many judges on the specifics of the insurance business and insurance law (as a rule, among judges of courts of general jurisdiction who, unlike judges of arbitration courts, do not specialize in disputes of a certain type);
- the socio-psychological influence on the impartiality of judges when resolving insurance disputes is, as a rule, not in favor of insurers;
- general problems of the judicial system (the “workload” of the courts, lack of time for a comprehensive analysis of the circumstances of the case, the evidence presented; the duration of the consideration of disputes and the legal costs of the parties to the disputes);
- other reasons.
It should also be noted: the current practice of bringing disputes to the courts in the overwhelming majority of cases does not allow maintaining the relationship between the insurer and its client, leads to the loss of the client and creates a negative attitude among the general consumer mass towards representatives of the insurance business.
Thus, there is a need for a system that could allow:
- outside the state judicial system, fairly, more quickly and efficiently resolve disputes and disagreements between insurers and other participants in the insurance market, involving independent professionals in the field of insurance law with a high reputation;
- when resolving a dispute, maintain relations between insurers and their counterparties;
- to form unified approaches to problems in the relationship between insurers and their counterparties in the insurance market (prevent disagreements, develop a single reasonable methodology for resolving them, develop and effectively promote proposals for improving regulatory legal documents).
As world practice shows, such an opportunity exists, and it lies in the development of special structures - the institute of insurance ombudsmen and the institute of insurance arbitration courts.
In this case, it is necessary to initially establish the difference between the concepts of an insurance ombudsman and an insurance arbitration court.
The activities of these institutions have a common goal - resolving disputes between participants in the insurance market. However, these institutions also have differences, discussed below.
Concepts and goals of the activities of ombudsmen and arbitration courts The concept of an insurance ombudsman
To date, the institution of an insurance ombudsman does not exist in Russia. There is no such term in Russian legislation either.
In foreign legislation, as well as in legal and economic dictionaries, you can find several different definitions of the concept "insurance ombudsman"<1>, For example:
- insurance commissioner<2>;
- an independent individual in his activities who regulates relationships between insurance organizations licensed to carry out compulsory owner liability insurance Vehicle, on issues of compulsory insurance of civil liability of vehicle owners<3>.
<2>http://mirslovarei.com/content_eco.
<3>Regulations on the activities of the insurance ombudsman for resolving issues regarding compulsory insurance civil liability of vehicle owners (approved by the Decision of the Council of Representatives dated 08/22/2007 N 1 and agreed with the Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations (Letter dated 08/23/2007 N 06-01-23/2383)) .
In some countries where ombudsmen work, the official lexicon uses the terms “conciliator” and “conciliation body” to refer to them.
Insurance arbitration court
This body is an arbitration court whose judges specialize in resolving disputes between participants in insurance legal relations. We will talk further about the activities of insurance arbitration courts in Russia.
Objectives of the insurance ombudsman
In foreign practice, the main task of the insurance ombudsman is quite clearly expressed as the protection of the rights and legitimate interests of clients of insurance companies. In addition to the concept of insurance ombudsmen, there are concepts of banking, pension and other financial ombudsmen, ombudsmen for information disputes in the field of media and others, but the commonality of all these concepts is that all these persons, called ombudsmen, are “authorized representatives for the protection of rights and interests a certain circle of people." At the same time, such a circle of persons for the insurance ombudsman are initially clients of insurance companies (primarily individuals) who do not have professional knowledge necessary to win the dispute, and from this point of view act as more weak side in a dispute. It should be noted that the ombudsman, of course, in a legal sense, does not act on the side of the policyholder as his representative and defender, but must impartially consider conflicts, guided by current legislation and professional knowledge.
Insurance arbitration court
In turn, the activities of the insurance arbitration court, like any other court, do not imply a focus on protecting the rights of clients of insurance companies. The current Russian practice shows that in the overwhelming majority of cases, opponents of insurance companies in disputes considered by insurance arbitration tribunals are either their counterparties - other professional subjects of the insurance business, or other organizations. Individuals practically do not participate in these disputes.
Thus, there is obviously a difference in the focus, as well as the “clientele” of the insurance ombudsman and the insurance arbitration court: for the first it is in most cases the population (policyholders are individuals), for the second - legal entities, often also being subjects of the insurance business.
Organizational and legal structure
An organization always acts as an arbitration tribunal, and in some cases legal entities act as an insurance ombudsman, and in others - individuals.
Examples of existing insurance ombudsman institutions are presented in Table 1.
Table 1
Insurance Ombudsman Institutions
| A country | Organizational and legal form and basic principles of construction activities |
||||||||||
| 1 | 2 | ||||||||||
| Far abroad | |||||||||||
| England | The Financial Ombudsman Institute has been operating since 1981. financed by 200 insurers but headed by an official. Ombudsmen are specially authorized individuals persons who report to a special agency - Financial Ombudsman Service Limited. According to organizational and legal form the agency is a limited company liability (without shareholder participation). The list of ombudsmen is approved by the agency’s board of directors, whose members cannot be included in this list. In turn, for the appointment of members of the board of directors The agency is responsible for the financial regulator (FSA). Wherein the appointment of both the board of directors and ombudsmen is built on the principle of maintaining the independence of these individuals so that they made independent decisions<1> | ||||||||||
| New Zealand | Institute of Insurance and Savings Ombudsman (The ISO) was created in 1995 by insurance companies to solve disputes arising between insurance and savings companies, on the one hand, and their clients, on the other. This institute is not tied to the government and has no legislative regulation. Its members are financial organizations become voluntary, and its decisions are binding only for participants due to their consent to participate in ISO<2> | ||||||||||
| Sri Lanka | The insurance ombudsman service is based on a voluntary basis Association of Insurance Bodies of Sri Lanka with the consent of the body insurance supervision<3> | ||||||||||
| Poland | The Ombudsman is appointed by the Prime Minister. Financing made by transfer by insurance organizations contributions, the amount of which is a certain percentage of the gross amount of collected insurance payments. Main goals, specified in the statutory documents: consideration of claims policyholders to insurance organizations and taking measures to dispute resolution, consultation with the insurance authority supervision of identified violations by insurance companies companies, participation in the interests of consumers of insurance services in legislative process on insurance issues, initiation of information and educational processes, related to insurance, and participation in them | ||||||||||
| CIS countries | |||||||||||
| Kazakhstan | The insurance ombudsman is a specially authorized an individual who is elected by representatives of insurance companies companies that signed a special memorandum. Candidacy insurance ombudsman is coordinated with the insurance authority supervision. The creation of this institute in Kazakhstan was due to introduction of direct settlement of losses under compulsory motor liability insurance and pursued the goal of resolving disagreements between insurance companies companies of the victim and the tortfeasor | ||||||||||
| Ukraine | In Ukraine, the institution of the insurance ombudsman is still not created, although the first steps towards its creation are being taken participants in the insurance market for several years: in particular, in 2004, about 20 Ukrainian insurers announced willingness to finance this institute. As stated then Head of the League of Insurance Organizations of Ukraine A. Filonyuk, "the ombudsman will be a kind of association, established by insurance companies supporting it on the initial stage of formation. It is planned that the Ombudsman will have a separate legal address and an independent account" <4> | ||||||||||
| Armenia | Since January 2009, a structure of financial ombudsmen has been in place, who provide support to clients of various financial organizations. The financial ombudsman institution has an independent advice - supreme body his management. The council consists of seven members who are appointed by unions of financial organizations, and also the government, the Central Bank and the rights protection regulator consumers. Among the functions of the council: appointment chairman, approval of statutory documents, approval budget of the ombudsman (including the procedure and amount of payment for work specialists), reviewing reports. Main cast The staff consists of six people - economists and lawyers. Just as in England, where there is a similar council, the principle of independence applies, which does not allow interfere with professional activity ombudsmen<5>. Financing is carried out through financial contributions organizations (participants of controlled markets) their mandatory share according to law | ||||||||||
| Azerbaijan | The creation of an insurance ombudsman is planned according to statement of the head of the State Agency for Insurance supervision under the Ministry of Finance of Azerbaijan N. Khalilova | ||||||||||
<2>http://www.iombudsman.org.nz/ (official website of the New Zealand Insurance and Savings Ombudsman Service).
<3>http://www.insuranceombudsman.lk/ (official website of the Insurance Ombudsman Service of Sri Lanka).
<4>Ratnaya V. Insurance arbitrator // Galician contracts. 07/05/2004.
<5>Financial Ombudsman: first results (interview with P. Sargsyan) // Business Express (Express.am). 06/29/2009.
At the same time, based on the world experience described above, ombudsmen reviewing insurance disputes can be divided into:
- on organizational and legal education:
- specially authorized individuals;
- government agency;
- non-profit organization (with partial state participation in capital and (or) management or without such participation);
- by specialization:
- an insurance ombudsman with a narrow specialization in the consideration of disputes arising from insurance contracts of a certain type (insurance ombudsman for compulsory motor liability insurance in Kazakhstan);
- an insurance ombudsman whose scope of work is not limited to a specific type of insurance;
- financial ombudsman, who is not limited to insurance, but considers complaints regarding providers of various financial services (banking, insurance, leasing, etc.).
Principles, procedure and legal regulation of activities
The fundamental difference between the institution of insurance ombudsmen and the institution of insurance arbitration court is also the following:
- The arbitration court is one of the elements of the judicial system. Arbitration proceedings are subject to the norms of civil procedural law and arbitration procedural law;
- The insurance ombudsman is not an element of the judicial system: the consideration of a dispute by the insurance ombudsman should not be classified as a claims or pre-trial procedure for resolving a dispute, but as a special out-of-court procedure. In a number foreign countries transfer of an insurance dispute to court is possible subject to its preliminary consideration by the insurance ombudsman, which did not lead to agreement between the parties to the dispute.
Let us consider the need for legal regulation of the activities of these institutions at the legislative level.
In international practice there are different levels legal regulation activities of insurance ombudsmen (Table 2).
table 2
Legal regulation of the activities of insurance ombudsmen
| A country | Level of legal regulation | ||||||
| Far abroad | |||||||
| England | Operating procedures of ombudsmen, including rules dispute resolution is broadly and in detail defined by the Law Financial Services and Financial Markets 2000 (FSMA 2000) | ||||||
| Sri Lanka | The activities of the insurance ombudsman service do not have special legislative reinforcement, but is regulated internal documents of this organization | ||||||
| CIS countries | |||||||
| Kazakhstan | The Law of the Republic of Kazakhstan on compulsory motor liability insurance enshrines the legal concept of an insurance ombudsman. However, the procedure of this institution in the said Law, other normative legal acts is not written down, but is determined by the Council representatives appointing the insurance ombudsman, and agreed with the insurance supervisory authority. Basic document In this case, the Regulations on the activities of the insurance ombudsman are used on resolving issues regarding compulsory insurance civil liability of vehicle owners funds (approved by the Decision of the Council of Representatives dated August 22, 2007 No. 1 and agreed with the Agency of the Republic of Kazakhstan for regulation and supervision of the financial market and financial organizations) | ||||||
| Armenia | Currently there is a separately adopted special Law of the Republic of Armenia "On the Financial System Mediator" | ||||||
Involving insurance market participants in interaction with the institutions under discussion can be carried out using various combinations. However, most combinations fall into one of two models.
The first is on a voluntary basis:
- the participants in the insurance (reinsurance) contract, at the stage of signing it or subsequently, come to an agreement to transfer a mutual dispute to a certain institution for consideration;
- voluntariness is also expressed in the fact that the consideration by the ombudsman of a dispute between the insurer and its client directly depends on the insurer’s contractual accession to the services of the insurance ombudsman as a result of the voluntary expression of the will of the former;
- even after a decision is made by the institution that resolves insurance disputes, the policyholder (and in the practice of individual states, the insurer) does not lose the right to appeal this decision to a state court.
The second is on a mandatory basis established by law:
- Submitting a dispute with a client to the insurance ombudsman does not depend on the consent of the insurance company (for example, in the form of an arbitration clause) - the will of one party to the contract is sufficient. The decisions of the insurance ombudsman become compulsory for insurers by force of law;
- if the insurance ombudsman is government agency, then its activities are subject to mandatory legal regulation;
- a rule may also be introduced according to which consideration of a dispute in court is possible only if the parties have gone through the procedure for considering the dispute by the insurance ombudsman without reaching an agreement.
Consideration of complaints by insurance ombudsmen is carried out in the manner determined by regulations or other similar normative document. The key rules of regulations in different states have certain similarities and include:
- simplified procedure for an applicant to apply to insurance ombudsman and the procedure for filing a complaint (application to the Ombudsman for the sake of efficiency can be made by telephone, fax or e-mail, and the complaint requires submission in writing with a signature and a mandatory list of answers to a number of questions; the complaint is considered, as a rule, without payment of any fees or contributions by the applicant);
- the period within which the Ombudsman sends a request regarding the received complaint to the relevant insurance organization to obtain documentary materials;
- the period within which the insurer is obliged to provide materials and explanations;
- the procedure and period, guided by which, the insurance ombudsman, after reviewing the materials, makes a decision to satisfy (full or partial) or refuse to satisfy the complaint. Moreover, in most cases, consideration does not require the presence of any of the parties, which reduces their costs;
- in some cases - the period during which the applicant of the complaint submits or does not submit his consent with by decision: the acquisition of legal force by the decision depends on the client’s consent;
- rules on the insurer's execution of the decision of the insurance ombudsman.
These rules provide the advantages of considering a dispute by an ombudsman in comparison with court proceedings, which consist in a free, simplified and quick consideration of the complaint by a professional specialist in insurance law.
K.A.Gatsalov
Senior Partner
law firm
"LexFinance Group"
There is a big gap in Russian legislation on consumer protection in terms of servicing such a large industry as insurance. And this deprives consumers of insurance services of any opportunity to protect their rights out of court. As a result, it is very difficult for the client to sort things out with the insurance company. And if he disagrees with the actions of the insurance organization, he will have to defend his rights only in court.
The most adequate The solution to this problem is the insurance ombudsman.
The position of ombudsman appeared for the first time in early XIX century in Sweden, translated from Swedish means representative. An official performing the functions of an ombudsman is called upon to monitor compliance with the legitimate interests and rights of citizens in the state.
Swedish innovation in legal system for a long time did not have support from other legislators. Today, such a position exists in a hundred countries around the world. Initially, the Ombudsman monitored the performance of their official functions by officials and executive authorities; today, his powers have expanded significantly.
The idea is enjoying significant success in the activities of European insurance companies. Representatives of the insurer not only attend presidium meetings, but also independently elect the head of the supervisory institute, expressing their personal agreement with his further decisions. Restrictions on the activities of the Ombudsman in European countries dictated by the established amount of insurance compensation. If the policyholder exceeds this amount, the powers of the ombudsman are terminated, and further proceedings take place under the jurisdiction of the court.
The maintenance of this institute is carried out at the expense of insurers, however, the service is economically beneficial for both parties. Policyholders use the ombudsman service free of charge, and it is more profitable for insurance companies to maintain an ombudsman than to pay the costs associated with conducting legal proceedings. Collective financing of the ombudsman by insurance organizations is a clear confirmation of the independent activities of the institute, as well as the impartiality of its decisions.
The successful work of the ombudsman institution has been noted in Germany. True, with their help, the problems of only those insurers who are members of the trade union of insurance organizations are solved. When the case is transferred to the prosecutor's office, the ombudsman ceases to act. It is worth noting that every fifth German ombudsman handles about 300 civil complaints per year. In Russia, the number of complaints received per year is measured in the thousands.
The difficulty in renewing the ombudsman in the Russian Federation is the insurance legislation, which requires adaptation. A package of amendments has been partially developed that are designed to reduce the conflict with the interests of policyholders, who are awaiting their turn to make changes to build relationships between the established institution and insurers.
The mechanism of the institute's work is assumed to be as follows: a client who is dissatisfied with the services provided by the insurance organization transfers the entire package of documents to the institute. Based on the documents received, the Institute makes a decision on the legality of the insurer’s actions and draws conclusions about the guilt of the insurance organization in this particular situation. The Ombudsman's orders are binding on the insurer.
If the policyholder is not satisfied with the decision of the supervisory institution, he can turn to the prosecutor's office or court for help.
IN Russian Federation The ombudsman institution has been operating for about a year and a half. The main field of activity is banking. More than a hundred financial institutions have entrusted the financial ombudsman with resolving issues of debt restructuring, removing penalties or fines from clients and other controversial issues, without bringing them to court.
Attempts to create an ombudsman institution were made earlier in the insurance industry, but did not lead to the desired result. Today, experts believe, the situation has changed, and in favor of the policyholder. Insurance companies understand that in conditions of increased demand for insurance services, the introduction of such an institution makes it possible to significantly improve relations with their clients. In the future, they are considering further rapid development of the entire sphere.
