Modern society needs an understanding of the principle of good faith. It would be much easier to live if this principle was observed by as many people as possible, and ideally by everyone.
Good faith (Clause 6, Article 3 of the Civil Procedure Code of Ukraine) is a certain standard of behavior characterized by honesty, openness and respect for the interests of the other party to the contract or relevant legal relationship.
But, despite this, not everyone remembers this principle and does not understand its meaning, which leads to the violation of the rights and legitimate interests of other persons. After all, how many times do you have to see how legal proceedings last for years and, having already made such a “desired” decision, the question arises of how to implement it as quickly as possible. But the realities of life show that not always, even with a court decision passed in your favor, the opponent is ready to fulfill it. Unfortunately, it is quite common to observe the evasion of persons guilty of traffic accidents and insurers from fulfilling their obligation to pay damages to the injured party as a result of an accident. There are often cases of deliberate avoidance of responsibility. In this case, the justification is usually simple – there is no income, no property, and attempts to reach the conscience do not give the desired result. But despite all the circumstances, refusals and self-suggestion, any violation of the obligation entails responsibility.
Article 15 of the Civil Code of Ukraine defines that every person has the right to protect his civil right in the event of its violation, non-recognition or dispute.
According to p. 3 hours 1 Art. 20 of the Law of Ukraine “On Insurance”, the insurer is obliged to make an insurance payment or an insurance indemnity payment in the period stipulated by the contract in the event of an insured event. The insurer bears property liability for untimely insurance payment (insurance indemnity) by paying the insured a penalty (fine, penalty), the amount of which is determined by the terms of the insurance contract or by law.
According to ch. 1 and 2 Art. 509 of the Civil Code, an obligation is a legal relationship in which one party (the debtor) is obliged to perform a certain action (transfer property, perform work, provide a service, pay money, etc.) or refrain from a certain action for the benefit of the other party (the creditor), and the creditor has the right to demand from the debtor the fulfillment of his obligation. Obligations arise from the grounds established by Art. 11 of this Code.
According to Art. 625 of the Civil Code, the debtor is not released from responsibility for the impossibility of fulfilling a monetary obligation. A debtor who is in arrears in the performance of a monetary obligation, at the request of the creditor, is obliged to pay the amount of the debt, taking into account the established inflation index for the entire period of delay, as well as three percent per annum from the overdue amount, unless another amount of interest is established by the contract or law.
The Grand Chamber of the Supreme Court formulated a legal opinion which states that the task of property (material) and moral damage creates an obligation between the person who caused such damage and the injured person. Depending on the content of such an obligation, it can be monetary or non-monetary.
In Art. 625 of the Civil Code defines the general rules of liability for breach of any monetary obligation regardless of the grounds for its occurrence. The provisions of this article apply to all types of monetary obligations, unless otherwise provided by the contract or special provisions of the law, which regulates, in particular, certain types of obligations.
According to the content of Art. 524, 533 — 535, 625 of the Civil Code monetary is an obligation expressed in monetary units (the national currency of Ukraine or in the monetary equivalent of an obligation expressed in a foreign currency), which provides for the obligation of the debtor to pay money in favor of the creditor, who has the right to require the debtor to fulfill this obligation. That is, any obligation is monetary, in which the right of the creditor to demand the payment of funds from the debtor is matched by the obligation of the debtor to make such payment ( decision of the Supreme Court of Ukraine dated 16.05.2018 in case No. 686/21962/15-ts (proceedings No. 14- 16cs18)).
We are also guided in solving the issue of “struggle” with violators of obligations by the decision of the Grand Chamber of the Supreme Court dated 20.06.2018, case No. 308/3162/15-ts (proceedings No. 14-178 ts. 18), in which it was concluded that according to the content of Article 979 of the Civil Code of Ukraine, an insurance contract is a legal relationship in which the insurer is bound in the event of an insured event case, to pay the insured or another person specified in the contract a sum of money (insurance payment). Therefore, such a legal relationship is a monetary obligation. Taking into account the legal nature of the legal relationship of the parties as monetary obligations, they are subject to Part. 2 Art. 625 of the Civil Code as a special type of civil liability for late performance of an obligation.
The same approach is enshrined in the resolutions of the Central Committee of the Supreme Court dated February 13, 2019, case No. 456/3525/15 (proceedings No. 61-18269св18); dated 07/28/2021, case No. 756/8711/18 (proceedings No. 61-6043св21)7 etc.
Thus, in connection with the delay in the issue of compensation for the damage caused, the victim has the right to apply to the debtor (culprit of the road accident, insurer, Motor (transport) insurance bureau of Ukraine) with the issue of collection of fines provided for in Art. 625 of the Civil Code.
But despite the clearly defined possibilities, it should be remembered that we do not always have them. Therefore, at the stage of familiarization with the available materials of the case, it is necessary to decide on the defendant and whether such a defendant can be brought to justice and whether the obligation to pay fines belongs to him.
If everything is clear with the culprit in the accident and with the insurer, then there remains the question of the liquidated insurer. In this matter, we refer to the decision of the Grand Chamber of the Supreme Court dated 19.07.2023 in case No. 910/16820/21 (proceedings No. 12-44gs22).
We would like to draw attention to the fact that the MTSU is a special entity in the field of insurance.
As defined by Art. 39 of the Law of Ukraine “On Compulsory Civil Liability Insurance of Land Vehicle Owners”, the Bureau is the only association of insurers that carry out compulsory liability insurance for damage caused to third parties. The participation of insurers in the MTSBU is a condition for carrying out activities related to compulsory liability insurance.
The MTSU enters into legal relations regarding compensation for damage instead of an insurer who has been declared bankrupt and liquidated with the establishment of the insufficiency of its property to fulfill the obligations under the insurance contracts concluded by it, only with the establishment of these circumstances and an appeal to the bureau of the injured person for such compensation. That is, within the limits of this legal relationship, the bureau guarantees receiving only compensation for damage to a person injured in a traffic accident.
At the same time, the MTSU is not the legal successor of the liquidated insurer, that is, it does not acquire all the rights and obligations of the latter as a party to the obligation, but in fact enters into disputed legal relations only in the event and after establishing the fact that the property of the liquidated insurer is insufficient to repay the obligation under the insurance contract in accordance with the decision of the bodies authorized by law, to repay the demands of creditors, i.e. is not one that assumes all the obligations of such an insurer, including those that are the result of improper performance or non-performance by this insurer of its own obligations under insurance contracts.
The provisions of the Law of Ukraine “On Mandatory Civil Liability Insurance of Owners of Land Vehicles” do not contain legal grounds for assigning to the MTSU the same amount of obligations under insurance contracts that the liquidated insurer had and that is acquired by the legal successor in the event of legal succession according to p. Article 20.1 20 of the above-mentioned Law, and therefore, the legal grounds for liability of the MTSU for the obligations improperly fulfilled/unfulfilled by this insurer in the form of charges provided for in Art. 625 of the Civil Code.
In the event of a delay in the performance of the MTSBU monetary obligation to make a regular payment, he has the stipulated part. 2 Art. 625 of the Civil Code, the obligation to pay the creditor, together with the amount of the principal debt, the amount of inflationary losses and three percent per annum of the overdue amount.
Having analyzed this category of cases, we see that the issue of evasion of obligations can be overcome by contacting the responsible persons with the issue of collecting fines. Due to the collection of such debts, the amount of the debt will only increase, which can encourage the guilty persons to fulfill their obligations.
Therefore, in the practice of the Supreme Court, the approach regarding the need to apply Art. 625 of the Civil Code to relations that arise in connection with non-fulfillment or improper fulfillment by the insurer of its obligation to timely pay the insured amount. On the other hand, such an approach is designed to facilitate the insurer’s timely fulfillment of its obligations. Considering the lawyer’s practice, it is necessary to remember that the breach of the obligation by the insurer automatically gives the right to demand payment of inflationary costs and three percent per annum.
.jpg)
Valery Shkvarko
lawyer, secretary of the NAAU Committee on Civil Law and Procedure