CURRENT STATUS OF REGULATIONS ON INSURANCE LOSS ASSESSMENT IN VIETNAM

ТЕКУЩЕЕ СОСТОЯНИЕ ПРАВИЛ ОЦЕНКИ СТРАХОВЫХ УБЫТКОВ ВО ВЬЕТНАМЕ

Фам Нам Тхань

д-р юрид. наук, Факультет морского права и политики, Морской институт, Университет транспорта,

Вьетнам, г. Хошимин

Ле Ван Хоп

Магистр права Факультет морского права и политики, Морской институт, Университет транспорта,

Вьетнам, г. Хошимин

ABSTRACT

The reality of Vietnam's insurance business is still full of unreasonable and limited subjects of regulation, which makes the roles and interests of the parties not be promoted. The article identifies the nature of insurance auxiliary services as a basis for applying relevant laws. At the same time, it points out the inadequacies and contradictions in current regulations, thereby proposing solutions to improve and contribute to promoting the sustainable development of the insurance market in the future.

АННОТАЦИЯ

Реальность страхового бизнеса Вьетнама по-прежнему полна неразумных и ограниченных субъектов регулирования, что не способствует продвижению ролей и интересов сторон. В статье определяется характер вспомогательных страховых услуг как основы для применения соответствующих законов. В то же время он указывает на недостатки и противоречия в действующих нормативных актах, тем самым предлагая решения для улучшения и содействия устойчивому развитию страхового рынка в будущем.

Keywords: Insurance services, loss assessment, insurance market.

Ключевые слова: Страховые услуги, оценка убытков, страховой рынок.

Loss assessment and insurance support services are increasingly important in the development of the Vietnamese insurance market, contributing to limiting profiteering, increasing professionalism, optimizing costs and resources for insurance companies, to pay compensation quickly, fully, promptly, and protect the rights of insurance participants. Insurance companies widely use consulting services, risk assessment, fee calculation, loss assessment, and compensation support. However, there are currently no specific legal regulations on operating standards and customer rights, of parties participating in insurance support, and in inconsistent management and supervision activities. Therefore, in order to contribute to improving the regulatory legal mechanism, this article analyzes the remaining limitations and shortcomings in the concept of insurance loss services, loss assessment process, and insurance loss assessment records. From there, the author makes a number of recommendations to further improve the regulations on insurance loss services. Pursuant to Clause 11, Article 4 of the Law on Insurance Business No. 08/2022/QH15: “Insurance loss assessment is the activity of determining the current status, cause, extent of loss and calculating the allocation of liability for loss compensation as a basis for settling insurance compensation”. Thus, understanding insurance loss assessment is to consider and conclude on the cause and extent of loss of the insured object when an insurance event occurs. However, in essence, Insurance Loss Assessment is a type of commercial assessment service stipulated in the Commercial Law No. 36/2005/QH11, Article 254: “Assessment service is a commercial activity in which a trader performs the necessary work to determine the actual condition of goods, service provision results and other contents as required by customers.”  Thus, in addition to the above contents of loss assessment, the appraiser does not have the authority to determine insurance liability. This provision is also somewhat inconsistent with the definition of insurance loss assessment stipulated in Article 4 above. Therefore, there are still some shortcomings in the content of the Law on Insurance Business as follows:

Firstly, the Law on Insurance Business indicates that an organization providing insurance auxiliary services with individuals directly performing insurance loss assessment activities must have a college degree or higher appropriate to the field of assessment. However, this provision is unreasonable in that, both are insurance loss assessment activities, which are essentially the same, but are performed by insurance enterprises themselves to carry out business activities, the law has not yet prescribed the conditions.

Secondly, there is a lack of concept of an organization providing insurance auxiliary services, specifically insurance loss assessment. The Law only states the concept of loss assessment activities as a type of insurance auxiliary service, accordingly, it can be understood that loss assessment activities are performed by an organization providing insurance auxiliary services, but what this organization is, who, which unit is in charge of performing the activities, the Law on Insurance Business has not yet specifically regulated.

Third, according to the provisions of the Law on Insurance Business on the activities of insurance enterprises, branches of foreign non-life insurance enterprises, and insurance brokerage enterprises, there are provisions that allow these enterprises to provide insurance auxiliary services. However, insurance auxiliary services also include other activities such as consulting, risk assessment, insurance calculation, support for compensation settlement, etc. Therefore, these general provisions do not clarify whether insurance enterprises are allowed to provide insurance loss assessment services or not?

Insurance loss assessment is the work of experts, insurers or assessment companies authorized by insurers, to determine the extent and cause of the loss as a basis for compensation. Insurance loss assessment is conducted when goods are lost, damaged, broken, deficient, or degraded at the port of arrival or on the way and at the request of the insured. Losses due to loss of goods, underdelivery or non-delivery of goods do not need to be assessed and cannot be assessed. The assessment agency must be the agency designated in the insurance contract or the agency authorized by the insurer. Immediately after receiving notice of an accident, loss, or damage from a customer in any form, the insurance company must send staff to collect initial information related to the loss and open a loss tracking book and a loss declaration book.

From the above-analyzed shortcomings, to solve the problem as well as perfect the legal regulations on insurance loss appraisal, the author proposes some recommendations as follows:

First, it is necessary to supplement regulations clarifying the nature of the insurance loss appraisal activity as commercial appraisal, thereby being able to refer to the Commercial Law as legal regulations regulating the contents related to appraisal if the Law on Insurance Business does not clearly stipulate.

Second, it is necessary to supplement regulations on the form and detailed content of appraisal records in the Law on Insurance Business, thereby ensuring the conditions of clear form and content, increasing the legal value of the loss appraisal record.

Third, it is necessary to supplement regulations in the Law on Insurance Business and the Law on Commercial Arbitration on cases where re-appraisal of losses is required, how to resolve when there are differences between the first appraisal records and re-appraisal records, which appraisal results are taken as the legal basis for resolving insurance damage and loss.

Fourth, it is necessary to provide guidance on standards, contents, and specialized methods in insurance loss appraisal activities as a basis for loss appraisers to carry out their activities in a more scientific, effective, and accurate manner.

Fifth, it is necessary to supplement the Law on Judicial Appraisal with provisions explaining the grounds for believing that appraisal results are inaccurate to serve as a basis for requesting re-appraisal.

Sixth, it is necessary to supplement the concept of ancillary service providers, thereby clarifying which organizations are legally allowed to provide insurance loss appraisal services. Issue regulations guiding the regulations on establishment, operation, and conditions for organizations providing insurance loss appraisal services.

Seventh, the state management agency of insurance business needs to conduct specialized inspections and review the activities of appraisal companies, especially those related to insurance loss appraisal, to ensure that appraisal activities comply with legal regulations and ensure independence, fairness, objectivity and honesty in order to develop the insurance market in Vietnam to become stronger and stronger.

References:

1. National Assembly (2005). Commercial Law No. 36/2005/QH11.
2. National Assembly (2010). Commercial Arbitration Law No. 54/2010/QH12.
3. National Assembly (2012). Judicial Expertise Law No. 13/2012/QH13, amended by Law No. 56/2020/QH14.
4. National Assembly (2015). Civil Procedure Code No. 92/2015/QH13.
5. Government (2016). Decree No. 73/2016/ND-CP detailing the implementation of the Law on Insurance Business and the Law on Amendments and Supplements to a Number of Articles of the Law on Insurance Business, amended by Decree No. 80/2010/ND-CP.
6. National Assembly (2022). Law on Insurance Business No. 08/2022/QH15.
7. Nguyen Thi Dung (2019). Some comments on regulations on insurance auxiliary services in the Draft Law on Insurance Business Amendment.