Draudimo išmokos ir žalos atlyginimo panašumai ir skirtumai: ar draudimo išmoka laikytina žalos atlyginimu?

Abstract

The aim of this article is to disclose the origin and the conception of an insurance indemnity and the indemnity (civil liability institute) proper, to research the connection between an insurance indemnity and indemnity (civil liability institute) proper and to establish when the insurance indemnity could be considered as indemnity (civil liability). The indemnity theory puts insurance compensatory function in first place and generally makes no distinction between insurance indemnity and indemnity proper. The following parts of this article describe the similarities and differences between insurance indemnity and indemnity proper. Both of them share compensatory function. The subrogation is also common for both, with one exclusion: life insurance and sum insurance products have no subrogation at all. Within third part liability insurance sums, indemnity proper equals insurance indemnity. Lithuanian tax law treats both analogically and there is no taxation on insurance indemnity and indemnity proper. But Lithuanian tax law distinguishes insurance indemnity and indemnity proper. In disputes arising from civil liability caused malpractice, damage and causality must be proved by plaintiff. In disputes arising from insurance contract we have analogical rules. The origins of insurance indemnity and indemnity proper are different. An insurance indemnity originates from insurance contract while indemnity proper is result of civil liability. There is general principle in Lithuanian civil law—complete compensation of damages. According to Supreme Court of Lithuania it is not applying to insurance indemnity. Because the insurance indemnity of “sum insurance” has nothing to do with damage, there is no relation between “sum insurance” indemnity and indemnity proper.Another difference lies in the size of compensation. An insurance indemnity may exceed damages but generally it is a little bit less than damages. The indemnity proper supposes two methods of self-realizing: compensation in nature and payment of money. The insurance indemnity is always payment of money. The latches applied to insurance indemnity and indemnity proper are different: 1 year and 3 years respectively. At the end of thework several conclusions were made. The classification of insurance contracts into “sum insurance” and “damage insurance” has the biggest significance to differentiate insurance indemnity from indemnity proper. First, insurance indemnity of life insurance and “sum insurance” products are not indemnity proper. Second, formally (by the law), insurance indemnity of “damage insurance” is not the indemnity proper. But in fact, insurance indemnity of “damage insurance” contract is partially or completely coincident with indemnity proper.