1. When applying measures to prevent the bankruptcy of an insurance organization, as well as during the procedures applied in a bankruptcy case, except for cases related to the revocation of the insurer’s license to carry out insurance activities, the insurance portfolio of the insurance organization for a separate type of insurance or several types of insurance, including for types of insurance for which compensation payments are provided as a result of the application to the insurer of the procedure applied in a bankruptcy case, or the revocation of the insurer's license to carry out insurance activities, may be transferred by the insurance organization (in the event of suspension of the powers of the management bodies of the insurance organization - temporary administration of the insurance organization) or the bankruptcy manager of another insurance organization or insurance organizations (hereinafter referred to as the managing insurance organization) in agreement with the control body.

The transfer of the insurance portfolio of an insurance organization for a separate type of insurance or several types of insurance to a managing insurance organization or to managing insurance organizations may be carried out if this does not violate the priority established by this Federal Law for satisfying the claims of creditors.

(see text in the previous edition)

2. When transferred, the insurance portfolio of an insurance organization includes:

1) obligations under insurance contracts (for a separate type of insurance or several types of insurance) not fulfilled on the date of the decision to transfer the insurance portfolio to an insurance organization (insurance reserves) in accordance with the law Russian Federation regulating insurance activities;

2) assets accepted to cover insurance reserves formed by the insurer in the manner established by the legislation of the Russian Federation regulating insurance activities.

3. The procedure for transferring the insurance portfolio, including the procedure for fulfilling obligations under insurance contracts identified after the transfer of the insurance portfolio to the insurance organization and not transferred as part of it, the procedure for fulfilling obligations by the managing insurance organization or managing insurance organizations, is established by the control body.

(see text in the previous edition)

Features of the transfer of the insurance portfolio, including the procedure for fulfilling obligations under insurance contracts identified after the transfer of the insurance portfolio to the insurance organization and not transferred as part of it, the procedure for fulfilling obligations by the managing insurance organization or managing insurance organizations and the procedure for selecting the managing insurance organization or managing insurance organizations by type of insurance , for which compensation payments are provided, are established by the control body.

(see text in the previous edition)

4. In the event of insufficiency or absence of assets of the insurance organization for the fulfillment by the managing insurance organization or managing insurance organizations of obligations under insurance contracts related to types of insurance for which compensation payments are provided, the missing part of the assets can be compensated by the professional association from funds intended for financing compensation payments, in the manner and on the terms established by the control body.

When transferring an insurance portfolio on the terms of compensation by a professional association for the missing part of the assets, the professional association selects a management insurance organization or management insurance organizations from among its members who have sent proposals to conclude an agreement on the transfer of the insurance portfolio.

The missing part of the assets is compensated by the professional association of the managing insurance organization or managing insurance organizations in accordance with the terms of the agreement on compensation of the missing part of the assets exclusively in cash within the time period specified in the agreement, but not earlier than the date of signing the agreement on the transfer of the insurance portfolio and no later than the date of signing the acceptance certificate -transfer of the insurance portfolio.

In the case of transfer of the insurance portfolio of an insurance organization to several managing insurance organizations, compensation for the missing part of the assets is distributed among them in proportion to the volume of liabilities that are subject to acceptance, taking into account the assets accepted by them as part of the insurance portfolio.

(see text in the previous edition)

5. Policyholders and beneficiaries are subject to notification by the insurance organization (in case of suspension of the powers of the management bodies of the insurance organization - by the temporary administration of the insurance organization) or by the bankruptcy trustee about the upcoming transfer of the insurance portfolio of the insurance organization to the managing insurance organization or managing insurance organizations by publishing a notice of the transfer of the insurance portfolio to the insurance organization in the manner established by Article 28 of this Federal Law. The specified notice must be published at least one month before the expected date of transfer of the insurance portfolio to the insurance organization. The notice of transfer of the insurance portfolio to the insurance organization must contain:

(see text in the previous edition)

1) the name of the insurance organization transferring the insurance portfolio, its address and information identifying the insurance organization (state registration number of the state registration record legal entity, taxpayer identification number);

2) the grounds for transfer of the insurance portfolio;

3) information about the limitation or suspension of the powers of the executive bodies of the insurance organization transferring the insurance portfolio;

4) the name of the managing insurance organization, its address and information identifying the managing insurance organization (state registration number of the record of state registration of a legal entity, taxpayer identification number).

5.1. In the case of transfer of the insurance portfolio of an insurance organization to several managing insurance organizations, the notice of transfer of the insurance portfolio of the insurance organization must contain the information provided for in subparagraph 4 of paragraph 5 of this article about each managing insurance organization, as well as information about the insurance contracts transferred to each of the managing insurance organizations.

6. Within a month from the date of publication of the notice of transfer of the insurance portfolio to the insurance organization, policyholders and beneficiaries have the right to send to the insurance organization in writing a request for termination of the insurance contract, the rights and obligations under which are subject to transfer. In the event of termination of an insurance contract, such an insurance contract and a proportional share in the insurance reserves to be transferred are excluded from the insurance portfolio of the insurance organization from the moment the insurance organization receives the specified demand of the insured and (in case of suspension of the powers of the management bodies of the insurance organization - by the temporary administration of the insurance organization) or the bankruptcy trustee. or) the beneficiary.

Article 184.9. Transfer of the insurance portfolio to an insurance organization

• checked today
• law of 01/08/2020
• entered into force on July 27, 2010

Art. 184.9 Bankruptcy Law in the latest valid version dated January 1, 2019.

There are no new articles that have not entered into force.

Compare with the edition of the article dated 12/21/2016 09/01/2013 12/01/2011 07/27/2010

When applying measures to prevent the bankruptcy of an insurance organization, as well as during the procedures applied in a bankruptcy case, except for cases related to the revocation of the insurer’s license to carry out insurance activities, the insurance portfolio of the insurance organization for a separate type of insurance or several types of insurance, including number by types of insurance for which compensation payments are provided as a result of the application to the insurer of the procedure applied in a bankruptcy case or the revocation of the insurer's license to carry out insurance activities, may be transferred by the insurance organization (in case of suspension of the powers of the management bodies of the insurance organization - by the temporary administration insurance organization) or the bankruptcy manager of another insurance organization or insurance organizations (hereinafter referred to as the managing insurance organization) in agreement with the control body.

The transfer of the insurance portfolio of an insurance organization for a separate type of insurance or several types of insurance to a managing insurance organization or to managing insurance organizations may be carried out if this does not violate the priority established by this Federal Law for satisfying the claims of creditors.

When transferred, the insurance portfolio of an insurance organization includes:

• 1) obligations under insurance contracts (for a separate type of insurance or several types of insurance) not fulfilled on the date of the decision to transfer the insurance portfolio to an insurance organization (insurance reserves) in accordance with the legislation of the Russian Federation regulating insurance activities;
• 2) assets accepted to cover insurance reserves formed by the insurer in the manner established by the legislation of the Russian Federation regulating insurance activities.

The procedure for transferring the insurance portfolio, including the procedure for fulfilling obligations under insurance contracts identified after the transfer of the insurance portfolio to the insurance organization and not transferred as part of it, the procedure for fulfilling obligations by the managing insurance organization or managing insurance organizations, is established by the control body.

Features of the transfer of the insurance portfolio, including the procedure for fulfilling obligations under insurance contracts identified after the transfer of the insurance portfolio to the insurance organization and not transferred as part of it, the procedure for fulfilling obligations by the managing insurance organization or managing insurance organizations and the procedure for selecting the managing insurance organization or managing insurance organizations by type of insurance , for which compensation payments are provided, are established by the control body.

In case of insufficiency or absence of assets of the insurance organization for the fulfillment by the managing insurance organization or managing insurance organizations of obligations under insurance contracts related to types of insurance for which compensation payments are provided, the missing part of the assets can be compensated by the professional association from funds intended to finance compensation payments , in the manner and under the conditions established by the control body.

When transferring an insurance portfolio on the terms of compensation by a professional association for the missing part of the assets, the professional association selects a management insurance organization or management insurance organizations from among its members who have sent proposals to conclude an agreement on the transfer of the insurance portfolio.

The missing part of the assets is compensated by the professional association of the managing insurance organization or managing insurance organizations in accordance with the terms of the agreement on compensation of the missing part of the assets exclusively in cash within the time period specified in the agreement, but not earlier than the date of signing the agreement on the transfer of the insurance portfolio and no later than the date of signing the acceptance certificate -transfer of the insurance portfolio.

In the case of transfer of the insurance portfolio of an insurance organization to several managing insurance organizations, compensation for the missing part of the assets is distributed among them in proportion to the volume of liabilities that are subject to acceptance, taking into account the assets accepted by them as part of the insurance portfolio.

Policyholders and beneficiaries are subject to notification by the insurance organization (in case of suspension of the powers of the management bodies of the insurance organization - by the temporary administration of the insurance organization) or by the bankruptcy manager about the upcoming transfer of the insurance portfolio of the insurance organization to the managing insurance organization or managing insurance organizations by publishing a notice of the transfer of the insurance portfolio of the insurance organization in accordance with the procedure established by Article 28 of this Federal Law. The specified notice must be published at least one month before the expected date of transfer of the insurance portfolio to the insurance organization. The notice of transfer of the insurance portfolio to the insurance organization must contain:

• 1) the name of the insurance organization transferring the insurance portfolio, its address and information identifying the insurance organization (state registration number of the record of state registration of a legal entity, taxpayer identification number);
• 2) the grounds for transfer of the insurance portfolio;
• 3) information about the limitation or suspension of the powers of the executive bodies of the insurance organization transferring the insurance portfolio;
• 4) the name of the managing insurance organization, its address and information identifying the managing insurance organization (state registration number of the record of state registration of a legal entity, taxpayer identification number).

In the case of transfer of the insurance portfolio of an insurance organization to several managing insurance organizations, the notice of transfer of the insurance portfolio of the insurance organization must contain the information provided for in subparagraph 4 of paragraph 5 of this article about each managing insurance organization, as well as information about the insurance contracts transferred to each of the managing insurance organizations.

Within a month from the date of publication of the notice of transfer of the insurance portfolio to the insurance organization, policyholders and beneficiaries have the right to send to the insurance organization in writing a request for termination of the insurance contract, the rights and obligations under which are subject to transfer. In the event of termination of an insurance contract, such an insurance contract and a proportional share in the insurance reserves to be transferred are excluded from the insurance portfolio of the insurance organization from the moment the insurance organization receives the specified demand of the insured and (in case of suspension of the powers of the management bodies of the insurance organization - by the temporary administration of the insurance organization) or the bankruptcy trustee. or) the beneficiary.

Insureds or beneficiaries under insurance contracts who have submitted a written request to terminate the insurance contract have the right to demand that the insurance organization return to them part of the paid insurance premium in proportion to the difference between the period for which the insurance contract was concluded and the period during which it was valid, or payment of redemption amounts, unless otherwise provided by federal law.

These requirements are subject to inclusion in the register of creditors' claims in the order of priority established by Article 184.10 of this Federal Law.

S. DEDIKOV

Sergey Dedikov, member of the board of the Moscow Reinsurance Company.

Recently, the issue of the basis, conditions and procedure for transferring one insurer’s insurance portfolio to another has become particularly relevant. This is due to the fact that, as a result of the entry into force of the new edition of the Law of the Russian Federation “On the organization of insurance business in the Russian Federation” () in January 2004, several hundred insurance companies and reinsurance companies already had their licenses revoked by the Federal Insurance Supervision Service (FSSN). conducting insurance activities due to lack of capital. This process will continue, since with the requirement of the Law to periodically and significantly increase the amount of capital, there will always be insurers who will not be able to do this within the established time frame. In addition, in the coming years there will be a real separation of long-term life insurance, risk types of insurance and reinsurance. Now and in the future, cases of restrictions and suspension of licenses by the insurance supervisory authority and voluntary refusal of insurers from certain types of insurance cannot be ruled out. Also, in conditions of increasing competition and concentration of the insurance business, a certain part of the companies will go bankrupt or simply be liquidated by decision of the owners.

The significance of this problem is eloquently demonstrated by the fact that the insurance supervisory authority and all leading professional associations of insurers are now developing draft documents on the conditions and procedure for transferring the insurance portfolio.

In accordance with paragraph 5 of Art. 25 of Law N 4015-1, the insurer may transfer the obligations assumed by it under insurance contracts (insurance portfolio) to one or more insurers (replacement of the insurer) who have licenses to carry out those types of insurance for which the insurance portfolio is transferred, and have sufficient own funds, that is, meeting the requirements of solvency, taking into account newly assumed obligations.

Part 2, clause 5, art. 25 of this Law establishes a closed list of grounds, in the presence of which an agreement on the transfer of an insurance portfolio cannot be concluded. This:
a) the presence of insurance contracts concluded in violation of the law;
b) failure of the insurer accepting the insurance portfolio to comply with financial stability requirements;
c) lack of written consent of policyholders and insured persons to transfer the portfolio;
d) the absence in the license issued to the insurer accepting the portfolio of an indication of the type of insurance for which insurance contracts were concluded;
e) the company transferring the portfolio does not have assets accepted to provide insurance reserves, except in cases of bankruptcy.

The legislator also prescribed, simultaneously with the transfer of obligations, to transfer assets in the amount of insurance reserves corresponding to the transferred insurance obligations.

In addition, the Law establishes that if the insurance rules of the insurer accepting the insurance portfolio do not correspond to the insurance rules of the insurer transferring the insurance portfolio, changes to the terms of the insurance contracts must be agreed upon with the policyholder.

Replacement of the insurer under contracts of compulsory insurance of civil liability of vehicle owners () is regulated by Art. 23 of the Law on Compulsory Motor Liability Insurance. This article provides that the replacement of the insurer occurs on the basis of an agreement between two insurance companies and with the consent of policyholders, victims demanding insurance payments under compulsory insurance policies, as well as the insurance supervisory authority. Paragraph 4 of this article defines three grounds for the insurance supervisory authority to refuse consent to such a transaction:
a) violation by the receiving party, in the event of accepting obligations under MTPL agreements, of the requirements for guarantees of solvency of insurance organizations;
b) lack of a license for compulsory motor liability insurance;
c) non-compliance of the conditions and procedure for replacing the insurer with the requirements of the law.

The smaller number of special requirements for contracts for the transfer of an insurance portfolio in the MTPL system established by the Law is mainly explained by the fact that in the field of compulsory insurance standard insurance rules apply and the same type of insurance contracts are applied.

The legal problems associated with the transfer of an insurance portfolio boil down mainly to the following.

The legislation does not define the concept of “insurance portfolio”. Since insurance contracts are mentioned in plural, then we must assume that the insurance portfolio is formed by two or more reinsurance contracts. Does the insurance portfolio include contracts that have expired but are still under investigation or review? insured event? I think so, since the insurer's insurance payment obligations continue to apply here. The insurance portfolio should also include so-called incoming reinsurance contracts, in which the insurer acts as a reinsurer. Another legal uncertainty is that the insurance portfolio may include all or some of the insurance and reinsurance contracts entered into by the relevant insurer. However, possible criteria for dividing contracts into different portfolios are also unclear. I think that they can be set by the insurer himself, he himself determines the number and volume of obligations, the type of insurance risks, the presence or absence of reinsured risks among them included in a specific insurance portfolio, and, therefore, he can have either one or several insurance portfolios, and of the most varied configurations.

In my opinion, the portfolio should also include outgoing reinsurance agreements, where the insurer transferring the portfolio acts as a reinsurer, because only an insurance organization that has the appropriate license can act in this capacity. In the event of a restriction, suspension or revocation of a license, the insurer can no longer be a reinsurer, since, according to clause 1 of the Civil Code of the Russian Federation, reinsurance contracts insure the risk of payment under concluded insurance contracts. However, the provision of the Law, which provided for the transfer of only obligations, actually left such contracts outside the insurance portfolio.

The incorrectness of a number of legislative provisions relating to the transfer of the insurance portfolio is obvious. The Law does not fully clarify the legal nature of the insurance portfolio transfer agreement. If we ignore those additional requirements of Law N 4015-1 and the Law on Compulsory Motor Liability Insurance, which are mentioned above, then the transaction for the transfer of the insurance portfolio fits perfectly into the set of two well-known contracts in civil law: transfer of debt (in terms of transfer of obligations) and assignment of claims, or assignment (in terms of the transfer of assets that provide insurance reserves, which, although incompletely, includes receivables, that is, the right of the insurer to claim the policyholders for their payment of the insurance premium, as well as outgoing reinsurance agreements). If so, then the need for additional regulation of these relations by a special law or any regulations raises doubts.

As is known, the Civil Code of the Russian Federation is based on the concept of exhaustive regulation of named contracts, unless the Code itself states that the corresponding type of transactions is subject to primary regulation by another normative act. Chapter 24 of the Civil Code of the Russian Federation, which regulates relations regarding the change of persons in obligations, does not say a word about the need to adopt any legislative or other legal acts to regulate the assignment and transfer of debt in insurance. Since the law does not prohibit insurers from carrying out transactions of debt transfer and assignment of claims, there is competition between two mechanisms for solving the same problem - transfer of the insurance portfolio. This is possible either by concluding a portfolio transfer agreement, burdened with a number of additional requirements, or by executing assignment agreements and debt transfer. For them, the Law establishes minimum requirements: the transaction is concluded in the same form as the transaction in accordance with which the debt exists or on the basis of which the corresponding requirements arose. The creditor's consent is required to transfer the debt; under an assignment agreement, the original creditor who assigned the claim is responsible to the new creditor for the validity of this claim, but is not responsible for its fulfillment by the debtor. In order to use the second and simpler method of transferring obligations and claims, it is enough to simply enter into such transactions in relation to individual insurance contracts. In addition, as already noted, the transfer of a portfolio is not an obligation, but a right of the insurance organization. In light of the above, it is quite obvious that a portfolio transfer agreement can take root only if it simplifies the procedure for obtaining the consent of creditors compared to a debt transfer agreement or completely eliminates the need to obtain such consent. That is why the legislator should focus his attention precisely on, given the mass nature of insurance contracts, simplifying the procedure for transferring debt by allowing this to be done as an exception to the general rule without the consent of creditors. Of course, there will be pros and cons. Disadvantages: the policyholder or beneficiary will be forced to deal with an insurer that he does not like or whom he does not trust for one reason or another. At the same time, the quality of the insurance service may deteriorate due to the shortcomings of the insurer's technology and its dismissive approach to the client.

Pros: real insurance protection of the property and property interests of the policyholder, beneficiary or insured person is maintained, and in the event of an insured event they will receive compensation for losses incurred. It is quite obvious that there are more advantages than disadvantages. In addition, if the policyholder does not like the new insurer, he has the right to select another insurer, terminate the previous insurance contract at any time (clause 2 of the Civil Code of the Russian Federation) and conclude it with a new insurer. True, he risks losing part of the insurance premium, since Part 2, Clause 3, Art. 958 of the Civil Code of the Russian Federation establishes that in case of early refusal of the policyholder (beneficiary) from the insurance contract, the premium paid to the insurer is not subject to return, unless otherwise provided by the contract. To remove this problem, it would be advisable to provide in this rule that if the insured or beneficiary refuses the contract after transferring the debt from one insurer to another, the premium is returned to the insured or beneficiary in proportion to the time that has passed from the moment of termination of the contract until the expiration of the validity period of this contract established parties at its conclusion.

If you look at the contract for the transfer of an insurance portfolio from the perspective of the Civil Code of the Russian Federation, the conclusion suggests itself that this is a complex contract consisting of a transfer of debt (obligations of the insurer) and a cession. In this regard, it would be more correct to indicate that the transfer of the insurance portfolio is carried out not simply in accordance with the law (some experts interpret this provision as indicating the need to develop a new law on the transfer of the portfolio), but in accordance with the provisions of the law on debt transfer and assignment requirements.

The provision on the inadmissibility of transferring the insurance portfolio in the event of concluding insurance contracts in violation of the law cannot but raise questions. What to do if, out of the many contracts included in the portfolio, several transactions or even one contract do not comply with the law? In this case, other contracts cannot be transferred? In other words, the dubiousness of one or more transactions actually obliges the insurer to terminate all other insurance contracts ahead of schedule, since he is prohibited from transferring them to other insurance organizations. The absurdity of this kind of sanctions is obvious. Problems and real losses with this model will arise exclusively from policyholders. If we take into account that the rules on the transfer of the insurer's portfolio are aimed at protecting the interests of policyholders, then the exact opposite goal is achieved here.

Finally, who exactly will determine whether the contract complies with the law or not? The party transferring the portfolio is unlikely to admit that the contract it has concluded is void. When this circumstance is identified by the receiving party, then, most likely, it will simply offer to exclude the dubious transaction from the portfolio that is transferred to it. This means, apparently, it was meant that this fact would be established by some control body, but if the transaction is void, then in the event of a dispute only the court has the right to decide on the application of the consequences of such a transaction.

It should also be emphasized that the legal norm in question can be formally applied only in relation to voidable transactions, and then only until they are declared invalid. Void transactions are invalid from the moment they are concluded, regardless of whether they are recognized as such or not. Consequently, such a transaction does not entail any legal consequences for the parties (clause 1 of the Civil Code of the Russian Federation). From a legal point of view, there is simply no such deal. Therefore, she cannot influence the decision on the transfer of the insurance portfolio. The same consequences will arise if the court recognizes the voidable transaction as invalid. In other words, the legal provision in question cannot be enforced.

Further, the insurer transferring the portfolio does not have assets accepted to provide insurance reserves. There is a high level of legal uncertainty here. What does it mean: that there are zero such assets or are we simply talking about their insufficiency? If the latter, then what degree of deficiency is taken into account: should 99% of assets be missing, 50%, or even a shortage of one ruble already deprives the insurance company of the right to transfer its portfolio to another insurer? But in real life, insurance organizations are sometimes willing to pay for the accepted insurance portfolio themselves, since as a result they expand their client base. Why can’t we transfer that part of the portfolio whose obligations are secured by adequate assets? If there is an economic interest in completing such a transaction, the parties will find ways to circumvent this prohibition.

The rule obliging to make changes to the terms of the insurance contract if its provisions do not comply with the standard insurance rules of the insurer accepting the portfolio cannot but raise objections. By virtue of clause 3 of the Civil Code of the Russian Federation, the parties to an insurance transaction may deviate from the standard insurance rules when concluding an agreement. If the provisions of the contract transferred to the new insurer do not comply with its standard insurance rules, but the new insurer is ready to accept the contract on such conditions, then, in my opinion, we have exactly the same situation here as when concluding the contract. Therefore, if the new insurer does not refuse to accept the contract for existing conditions, then he has the right to do so.

In this case, some experts propose to present the policyholder with a choice: either agree to change the terms of the contract, or refuse to transfer the debt. But it is clear that such transactions have no chance of surviving for any long time, because the policyholder, as already indicated, always has the right to refuse the contract.

It is advisable to note a certain incorrectness of the provisions of Art. 23 of the Law on Compulsory Motor Liability Insurance. Its rules prescribe the need to obtain consent to transfer the portfolio not only from the policyholder, but also from the victim, who acts as a beneficiary or a third party. At the same time, as is known, the victim is not a creditor. According to clause 1 of the Civil Code of the Russian Federation, an agreement in favor of a third party is an agreement in which the parties have established that the debtor is obliged to perform the performance not to the creditor, but to a third party. Meanwhile, paragraph 1 of Art. 391 of the Civil Code of the Russian Federation only speaks of obtaining the consent of the creditor to transfer the debt. Thus, the norm of paragraph 2 of Art. 23 of the Law on Compulsory Motor Liability Insurance does not comply with the norms of the Civil Code, which, as is known, by virtue of paragraph 2 of Art. 3 of the Code is not allowed.

The issue of the need to obtain the consent of the insurance supervisory authority to enter into an agreement for the transfer of an insurance portfolio remains controversial.

First of all, there is no basis for the provisions of Art. 23 of the Law on Compulsory Motor Liability Insurance applies to all other types of insurance. This legislative act is devoted to the regulation of specific legal relations and cannot contain rules that go beyond the scope of its action. Especially in matters related to limiting the rights of participants in civil transactions and expanding the powers of government bodies. Deriving the right of the insurance supervisory body to sanction transactions for the transfer of the insurance portfolio from the provisions of clause 5 of Art. 25 of Law N 4015-1, in my opinion, is impossible, because this would mean a broad interpretation of the law in favor of a state body, which in principle cannot be done, because the state always has the opportunity to clearly establish its rights in law, and if this is not done , then we must assume that it did not pursue such a goal. In addition, a broad interpretation of the provisions of the law on the rights of state bodies means a restriction of the civil rights of participants in business transactions, and, as is known, such a restriction by virtue of clause 3 of Art. 55 is possible only under the direct instructions of federal law.

If we consider the contract for the transfer of an insurance portfolio as a set of assignment transactions and debt transfer, then the requirement to obtain the consent of the Federal Insurance Service to carry out such transactions also does not comply with the norms of Chapter. 24 of the Civil Code of the Russian Federation, where there are no such regulations.

Proponents of vesting insurance supervisory authorities with the right to approve transactions for the transfer of the insurance portfolio apparently do not imagine the full scale of the technological problems associated with this. In order to approve or, on the contrary, refuse consent to carry out such a transaction, the insurance supervisory authority must check it for all the positions specified in paragraph 5 of Art. 25 of Law N 4015-1. If the transferred portfolio contains, say, 30,000 contracts, this means that the insurance supervisor is obliged to check all 30,000 contracts for compliance with the law, then for compliance with the rules of the insurer accepting the portfolio, establish that there is consent of all policyholders and beneficiaries (according to MTPL agreements) for the transfer of a portfolio (in this case, it will be necessary to verify the authenticity of the signatures of all specified persons), give an opinion on the compliance or non-compliance of the structure of the transferred assets with the requirements for the placement of assets accepted to secure insurance reserves, etc. In some cases, a request for additional information from the insurer will be required, and disputes over the legality or illegality of individual contracts or certain terms of contracts are possible. This is a whole month of work for a team of qualified employees. What if disputes are taken to the courts? And when the comments about the non-compliance of the terms of the contracts with the insurance rules are eliminated, will all these contracts have to be reviewed again? Since it is unrealistic to transport such a number of documents to the insurance supervisory authority (these are whole truckloads of documents from just one company), this means that insurance supervisory employees will have to travel for months on end. Who, finally, will do all this if dozens or hundreds of licenses are revoked at once and it will be necessary to simultaneously consider hundreds of such transactions and check hundreds of thousands of insurance contracts? After all, insurance supervision did not exempt anyone from other work. Participants in the insurance market are able to resolve all these issues themselves.

The technology for concluding such agreements has not been developed, although they are complex documents. In this regard, the question arises as to whether a by-law is needed to regulate the relevant relations, or whether the adoption of methodological recommendations is sufficient. I believe that the subject for the by-law normative act in this case, no, because it cannot regulate civil rights without a special indication in the law of the need to adopt such a document. At the same time, due to the complexity of the corresponding operation, it would be necessary to develop guidelines on how to draw up an agreement on the transfer of an insurance portfolio, what information would be appropriate to record in it and in the appendices to it, how the transfer of liabilities (insurance reserves) and assets should be reflected in accounting, etc.

CENTRAL BANK OF THE RUSSIAN FEDERATION

POSITION

On the procedure for the transfer of the insurance portfolio, coordination of the transfer of the insurance portfolio with the Bank of Russia, requirements for the content of the agreement on the transfer of the insurance portfolio and the acceptance certificate

Lost force on November 5, 2019 based on
Regulations of the Bank of Russia dated July 16, 2019 N 688-P
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These Regulations are based on Article 26_1 of the Law of the Russian Federation of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation” (Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation, 1993, N 2, Art. 56; Meeting legislation of the Russian Federation, 1998, N 1, article 4; 1999, N 47, article 5622; 2002, N 12, article 1093; N 18, article 1721; 2003, N 50, article 4855, article 4858 ; 2004, N 30, art. 3085; 2005, N 10, art. 760; N 30, art. 3101, art. 3115; 2007, N 22, art. 2563; N 46, art. 5552; ​​N 49, art. .6048; 2009, N 44, art. 5172; 2010, N 17, art. 1988; N 31, art. 4195; N 49, art. 6409; 2011, N 30, art. 4584; N 49, art. 7040 ; 2012, N 53, art. 7592; 2013, N 26, art. 3207; N 30, art. 4067; N 52, art. 6975; 2014, N 23, art. 2934; N 30, art. 4224; N 45, Art. 6154; 2015, N 10, Art. 1409; N 27, Art. 4001), Article 184_9 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” (Collected Legislation of the Russian Federation, 2002 , N 43, art. 4190; 2004, N 35, art. 3607; 2005, N 1, art. 18, art. 46; N 44, art. 4471; 2006, N 30, art. 3292; N 52, art. 5497; 2007, N 7, art. 834; N 18, art. 2117; N 30, art. 3754; N 41, art. 4845; N 49, art. 6079; 2008, N 30, art. 3616; N 49, art. 5748; 2009, N 1, art. 4, art. 14; N 18, art. 2153; N 29, art. 3632; N 51, art. 6160; N 52, art. 6450; 2010, N 17, art. 1988; N 31, art. 4188, art. 4196; 2011, N 1, art. 41; N 7, art. 905; N 19, art. 2708; N 27, art. 3880; N 29, art. 4301; N 30, art. 4576; N 48, art. 6728; N 49, art. 7015, art. 7024, art. 7040, art. 7061, art. 7068; N 50, art. 7351, art. 7357; 2012, N 31, art. 4333; N 53, art. 7607, art. 7619; 2013, N 23, art. 2871; N 26, art. 3207; N 27, art. 3477, art. 3481; N 30, art. 4084; N 51, art. 6699; N 52, art. 6975, art. 6979, art. 6984; 2014, N 11, art. 1095, art. 1098; N 30, art. 4217; N 49, art. 6914; N 52, art. 7543; 2015, N 1, art. 10, art. 35; N 27, art. 3958, art. 3967, art. 3977; “Official Internet portal of legal information” (www.pravo.gov.ru), July 13, 2015) (hereinafter referred to as the Federal Law “On Insolvency (Bankruptcy)”) establishes the procedure for transfer when applying measures to prevent bankruptcy of an insurance organization, as well as in the course of the procedures applied in the bankruptcy case of an insurance organization of the insurance portfolio for a separate type of insurance or several types of insurance, including types of insurance for which compensation payments are provided as a result of the application to the insurer of the procedure applied in the bankruptcy case, or withdrawal from the insurer has a license to carry out insurance activities (including the procedure for fulfilling obligations under insurance contracts identified after the transfer of the insurance portfolio to the insurance organization and not transferred as part of it, and the procedure for fulfilling obligations by the managing insurance organization); features of the transfer of the insurance portfolio (including the procedure for selecting a managing insurance organization by type of insurance for which compensation payments are provided); the procedure and conditions for compensation by a professional association of insurers for the missing part of assets from funds intended to finance compensation payments; the procedure and timing for the return to the professional association of insurers of the balance of funds intended to finance compensation payments transferred to the management insurance organization and not used by this management insurance organization to fulfill obligations under insurance contracts; the procedure and timing for the return to the bankruptcy estate of the balance of insurance reserves transferred to the management insurance organization and not used by this management insurance organization to fulfill obligations under the transferred insurance contracts; the procedure for agreeing on the transfer of the insurance portfolio with the Bank of Russia in cases provided for by the legislation of the Russian Federation; requirements for the content of the agreement on the transfer of the insurance portfolio and the act of acceptance and transfer of the insurance portfolio.

Chapter 1. Procedure for transferring the insurance portfolio

1.1. If the circumstances specified in paragraph 1 of Article 184_9 of the Federal Law “On Insolvency (Bankruptcy)” occur, the insurance organization has the right to decide to transfer the insurance portfolio to the managing insurance organization.

If such a decision is made, the insurance organization transferring the insurance portfolio (hereinafter referred to as the transferring insurance organization), no later than the day of publication of the notice of intention to transfer the insurance portfolio, draws up a list of insurance contracts, the obligations under which are transferred as part of the insurance portfolio, determines the amount of insurance reserves formed for them , value and types of assets accepted to cover the formed insurance reserves, compiles a list of rights to claim payment of insurance premiums (insurance contributions) under contracts, the obligations under which are transferred as part of the insurance portfolio, as of the date of adoption of the specified decision.

1.2. The list of insurance contracts is compiled on the basis of logs of concluded insurance contracts (co-insurance) and logs of losses and early terminated insurance contracts (co-insurance) separately for each type of insurance included in the transferred insurance portfolio. In case of transfer of combined insurance contracts, they are included in the list of insurance contracts for only one type of insurance.

The list of insurance contracts must contain the following information:

details of insurance contracts (date, number and place of conclusion);

terms and conditions of insurance contracts (validity period, insurance period, insurance object, amount of insured amount and insurance premium);

information about policyholders, beneficiaries, insured persons;

information necessary to establish the rights of claim of the transferring insurance organization under the transferred insurance contracts, including the amount of the unpaid insurance premium (insurance premiums), deadlines for payment of the insurance premium (insurance premiums) taking into account deferment or installment payment, the period of delay in payment of the insurance premium (insurance premiums) );

information necessary to establish the obligations of the transferring insurance organization under the transferred insurance contracts, including the amount of insurance payments made, the amount of declared but not settled losses.

1.3. The calculation of the amount of insurance reserves for the transferred insurance portfolio is made by the transferring insurance organization on the basis of the regulations on the formation of insurance reserves, approved by the specified insurance organization in the prescribed manner, and is confirmed by the conclusion of the responsible actuary.

If it is not possible to calculate any of the insurance reserves for the transferred insurance portfolio due to the fact that the calculation procedure provided for in the regulations on the formation of insurance reserves does not allow it to be calculated for individual insurance contracts, it is subject to distribution in the following order:

for life insurance contracts - by distributing such a reserve in proportion to the ratio of the mathematical reserve calculated under the transferred insurance contract to the total amount of mathematical reserves under the specified contracts;

under insurance contracts other than life insurance:

for the unearned premium reserve - by distributing such a reserve in proportion to the ratio of the unearned premium reserve under the transferred insurance contract to the total amount of the unearned premium reserve for this accounting group;

for loss reserves - by distributing such a reserve in proportion to the ratio of the earned premium under the transferred insurance contract to the total amount of the earned premium for this accounting group, while the distribution is made separately for each of the periods of occurrence of losses involved in calculating the reserve, and the total amount of those that occurred but were not declared losses are defined as the sum of the values ​​of occurred but unreported losses for each of the periods of occurrence of losses.

1.4. Insurance contracts containing information constituting a state secret are drawn up in a separate list.

1.5. When transferring an insurance portfolio on the terms of compensation by a professional association of insurers for the missing part of the assets, the choice of a managing insurance organization is carried out by a professional association of insurers from among the insurance organizations - members of the said association that have sent proposals to conclude an agreement on the transfer of the insurance portfolio.

1.6. In the case of the transfer of an insurance portfolio under insurance contracts that provide for compensation payments, the professional association of insurers must post, within the time limits provided for by the rules (standards) of professional activity, on its website on the Internet information and telecommunications network information about the beginning of the procedure for selecting an insurance manager organizations containing:

an indication that the transfer of the insurance portfolio can be carried out on the terms of compensation by a professional association of insurers for the missing part of the assets;

conditions for selecting a managing insurance organization, including requirements for them and selection criteria.

1.7. When receiving from insurance organizations - members of a professional association of insurers proposals to conclude, as a managing insurance organization, an agreement on the transfer of an insurance portfolio, the professional association of insurers evaluates the submitted proposals, checks the specified insurance organizations for compliance with the requirements provided for by these Regulations, as well as additional conditions and criteria established rules (standards) of professional activity.

Based on the results of the assessment, the professional association of insurers sends, within the time limits established by the rules (standards) of professional activity, to each insurance organization that sent a proposal to conclude an agreement on the transfer of the insurance portfolio, a notice of compliance or non-compliance with the established requirements (criteria), and also sends to insurance organizations meeting the established requirements (criteria), an offer containing the terms of the agreement on compensation for the missing part of the assets.

1.8. The missing part of the assets is compensated by the professional association of insurers of the managing insurance organization exclusively with monetary funds.

The obligation of the professional association of insurers to compensate for the missing part of the assets must be fulfilled in full by transferring Money to the settlement account of the managing insurance organization no later than 10 working days from the date of receipt of a copy of the acceptance certificate of the insurance portfolio.

1.9. Funds transferred to the management insurance organization by a professional association of insurers as compensation for the missing part of assets are designated funds. For the specified target funds, the managing insurance organization opens a current account in a bank whose assets amount to 50 billion rubles or more and (or) the amount of funds raised from individuals based on contracts bank deposit and bank account agreements, which amount to 10 billion rubles or more, and maintains separate records for them. The managing insurance organization begins to use targeted funds after the volume of insurance payments made by the managing insurance organization under insurance contracts and returns of part of the insurance premium upon early termination of insurance contracts included in the insurance portfolio reaches the value of assets received from the transferring insurance organization, designed for the date of their transfer.

1.10. The balance of target funds not used by the managing insurance organization to fulfill obligations under insurance contracts is returned by the managing insurance organization to the professional association of insurers in the manner prescribed by the rules (standards) of professional activity, after the expiration of the limitation period for the last declared loss or after five years from the expiration date of the last insurance contract included in the insurance portfolio transferred to the managing insurance organization, whichever comes first.

After the specified period, the professional association of insurers and the managing insurance organization reconcile settlements for all insurance contracts, the fulfillment of obligations under which was carried out by the managing insurance organization at the expense of targeted funds, and sign a reconciliation report. If, based on the results of the reconciliation, it is discovered that the managing insurance organization has not spent the target funds in full, the managing insurance organization is obliged to return the unused funds by transferring funds to the settlement account of the professional association of insurers within five working days from the date of signing the reconciliation act.

1.11. The transferring and managing insurance organizations, upon expiration of the statute of limitations for the last declared loss or upon the expiration of five years from the date of expiration of the last insurance contract included in the transferred insurance portfolio, whichever comes first, reconcile calculations for all insurance contracts included in the transferred insurance portfolio.

If, based on the results of the reconciliation, it is discovered that the managing insurance organization has not spent the transferred funds of assets accepted to cover insurance reserves in full, the managing insurance organization is obliged to return the balance of unused funds to the bankruptcy estate by transferring funds to the settlement account of the transferring insurance organization within five working days from the date of signing the reconciliation report.

1.12. The transferring insurance organization is obliged to transfer to the managing insurance organization all documents and information relating to the transferred insurance portfolio, received by it after the transfer of the insurance portfolio.

1.13. If, after the completion of the transfer of the insurance portfolio, insurance contracts are identified that were not transferred (not included in the list of insurance contracts), they are executed by the transferring insurance organization, and in the event of its bankruptcy, they are included in the bankruptcy estate.

If these contracts relate to types of insurance for which compensation payments are provided, and the transferring insurance organization cannot fulfill them on the grounds determined by the laws on such types of insurance, the professional association of insurers makes compensation payments in accordance with the legislation of the Russian Federation.

1.14. The transferring insurance organization publishes a notice of intention to transfer the insurance portfolio in a printed publication determined in accordance with Article 28 of the Federal Law “On Insolvency (Bankruptcy)”.

The notice of completion of the transfer of the insurance portfolio is published by the managing insurance organization in the printed publication in which the notice of intention to transfer the insurance portfolio was previously published.

Chapter 2. Procedure for agreeing on the transfer of the insurance portfolio with the Bank of Russia

2.1. The transfer of the insurance portfolio when applying measures to prevent the bankruptcy of an insurance organization, as well as during the procedures applied in the case of bankruptcy of an insurance organization, or the revocation of the insurer’s license to carry out insurance activities is subject to agreement with the Bank of Russia.

2.2. In order to coordinate the transfer of the insurance portfolio, the transferring and managing insurance organizations submit a joint application to the Bank of Russia in writing, to which the following documents are attached.

2.2.1. A signed agreement on the transfer of the insurance portfolio that meets the requirements of paragraph 3.1 of these Regulations.

2.2.2. Documents confirming the approval by the authorized management body of the insurance organization of the transaction for the transfer of the insurance portfolio, if the transaction for the transfer of the insurance portfolio is a major transaction or an interested party transaction for the transferring insurance organization or managing insurance organization in accordance with the legislation of the Russian Federation.

2.2.3. An actuarial report assessing the sufficiency of the formed insurance reserves for the planned date of transfer of the insurance portfolio.

2.2.5. Accounting (financial) statements and reports submitted in the manner of supervision to the transferring insurance organization, compiled as of the last reporting date preceding the day of sending the application for the transfer of the insurance portfolio.

2.2.6. Accounting (financial) statements and statements submitted in the manner of supervision to the management insurance organization, compiled as of the last reporting date preceding the day of sending the application for the transfer of the insurance portfolio.

2.2.7. Calculation of the standard ratio of own funds and assumed liabilities of the managing insurance organization, compiled as of the last reporting date preceding the day of sending the application for the transfer of the insurance portfolio.

2.2.8. Calculation of the standard ratio of own funds and assumed liabilities of the managing insurance organization, information about the assets of the insurance organization, taking into account the liabilities and assets accepted as part of the insurance portfolio.

2.2.9. A copy of the agreement providing for the obligation of a professional association of insurers to compensate the managing insurance organization for the missing part of the assets (indicating the amount of compensation), when transferring the insurance portfolio by type of insurance for which compensation payments are provided, with the missing part of the assets.

2.2.10. A copy of the license of the managing insurance company to carry out work using information of the appropriate degree of secrecy when transferring an insurance portfolio containing information constituting a state secret.

2.3. The application with the attached documents is sent to the Bank of Russia (Insurance Market Department) by registered mail or submitted to the expedition of the Bank of Russia. The day of receipt of documents is the day of their registration with the Bank of Russia.

2.4. Copies of documents must be certified by the insurance organization that provided them. In documents submitted to the Bank of Russia (Insurance Market Department) and containing more than one sheet, the sheets must be numbered, stitched and fastened on the back of the last sheet with a certification inscription indicating in numbers and words the number of numbered sheets. The certification signature is signed by its originator, indicating the surname, first name, patronymic (if any), position and date of preparation. The signature of the author of the certification must be certified by the seal of the insurance organization (if there is a seal).

2.5. The documents specified in subclauses 2.2.2, 2.2.6-2.2.10 of clause 2.2 of these Regulations are submitted to the Bank of Russia in an amount corresponding to the number of managing insurance organizations.

2.6. The Insurance Market Department of the Bank of Russia, within 15 working days from the date of submission of the documents provided for in paragraph 2.2 of these Regulations, ensures approval of the transfer of the insurance portfolio or refusal to approve the transfer of the insurance portfolio.

The decision to approve the transfer of the insurance portfolio or to refuse to approve the transfer of the insurance portfolio is signed by the Deputy Chairman of the Bank of Russia in charge of supervision issues in the insurance market, or the person replacing him. The signed decision is registered by the Insurance Market Department of the Bank of Russia and brought within five working days in writing to the attention of the transferring and managing insurance organizations and the professional association of insurers (when transferring an insurance portfolio by type of insurance for which compensation payments are provided) in a way that allows it to be confirmed receipt by the addressee.

2.7. The grounds for refusal to approve the transfer of the insurance portfolio are:

submission of an incomplete set of documents provided for in paragraph 2.2 of these Regulations;

presence of inaccurate information in the submitted documents;

non-compliance of the submitted documents with the legislation of the Russian Federation;

suspension, limitation of validity or absence of a license from the managing insurance organization to carry out insurance activities for the types of insurance for which the insurance portfolio is transferred;

non-compliance of the managing insurance organization with the requirements of financial stability and solvency established by the legislation of the Russian Federation, taking into account newly assumed obligations;

a decrease in the value of the net assets of the managing insurance organization to an amount less than its authorized capital at the end of the financial year following the second or each subsequent financial year, at the end of which the value of the net assets of the managing insurance organization was less than its authorized capital.

2.8. In case of refusal to approve the transfer of the insurance portfolio, insurance organizations, having eliminated the violations that were the basis for refusal to approve the transfer of the insurance portfolio, have the right to re-apply to the Bank of Russia (Insurance Market Department) with an application for approval of the transfer of the insurance portfolio, submitting the documents specified in clause 2.2 of this Regulation.

2.9. The condition of paragraph six of clause 2.7 of these Regulations does not apply to cases of transfer of an insurance portfolio with a missing part of assets for types of insurance for which compensation payments are provided, if the reason for the non-compliance of the managing insurance organization with the established requirements is the acceptance of such an insurance portfolio, subject to compensation for the missing part of the assets by a professional association of insurers.

2.10. Information on the approval of the transfer of the insurance portfolio is posted by the Bank of Russia on the official website of the Bank of Russia on the Internet information and telecommunications network within five working days from the date of the decision to approve the transfer of the insurance portfolio.

Chapter 3. Requirements for the content of the agreement on the transfer of the insurance portfolio and the act of acceptance and transfer of the insurance portfolio

3.1. The contract for the transfer of the insurance portfolio must contain the following conditions.

3.1.1. List of insurance contracts, obligations under which are transferred to the managing insurance organization.

3.1.2. The composition, procedure and deadline for the transfer of insurance contracts, the obligations under which are transferred to the managing insurance organization, as well as documents reflecting the execution of these insurance contracts (documents confirming payment of the insurance premium (insurance contributions), documents for the settlement of insured events, documents confirming the implementation of insurance payments (redemption amounts) The specified documents are presented in the form of copies certified by the transferring insurance organization.

3.1.3. The amount of insurance reserves corresponding to the transferred insurance obligations.

3.1.4. The composition and value of the transferred assets, the period of their transfer.

3.1.5. Distribution of shares of the insurance portfolio between several managing insurance organizations (in case of transfer of the insurance portfolio to several managing insurance organizations).

3.1.6. Deadline for the transfer of the insurance portfolio.

3.1.7. When transferring an insurance portfolio by types of insurance for which compensation payments are provided, with a missing part of the assets, the agreement on the transfer of the insurance portfolio provides for one of the following provisions:

agreement to accept the insurance portfolio without compensation for the missing part of the assets by a professional association of insurers;

agreement to accept the insurance portfolio subject to compensation for the missing part of the assets by a professional association of insurers.

3.1.8. Other conditions reflecting the features of the transfer of the insurance portfolio that do not contradict the legislation of the Russian Federation.

3.2. The act of acceptance and transfer of the insurance portfolio reflects the list of insurance contracts, the obligations under which are transferred to the managing insurance organization, the amount of transferred insurance reserves, determined according to the list of insurance contracts, and the list of transferred assets (indicating their value as of the date of transfer).

When transferring an insurance portfolio by type of insurance for which compensation payments are provided, with the missing part of the assets, the certificate of acceptance and transfer of the insurance portfolio reflects the amount of the missing part of the assets, subject to compensation by the professional association of insurers, with its calculation attached.

In the case of transfer of the insurance portfolio to several insurance organizations, the acceptance and transfer certificate of the insurance portfolio is drawn up and signed with each managing insurance organization in accordance with the distribution of shares of the insurance portfolio, determined in accordance with the agreement on the transfer of the insurance portfolio.

3.3. A copy of the act of acceptance and transfer of the insurance portfolio within five working days after its signing is submitted by the transferring insurance organization to the Bank of Russia as a notification.

When transferring an insurance portfolio for types of insurance for which compensation payments are provided, a copy of the act of acceptance and transfer of the insurance portfolio is also submitted to the professional association of insurers within five working days after its signing.

Chapter 4. Final provisions

4.1. This Regulation is subject to official publication in the "Bulletin of the Bank of Russia" and in accordance with the decision of the Board of Directors of the Bank of Russia (minutes of the meeting of the Board of Directors of the Bank of Russia dated July 17, 2015 N 21) comes into force on the date of entry into force of the order of the Ministry of Finance of the Russian Federation on the recognition no longer in force, registered by the Ministry of Justice of the Russian Federation on May 13, 2011 N 20741 ( Russian newspaper dated May 20, 2011).

Chairman
Central Bank
Russian Federation
E.S. Nabiullina

Registered
at the Ministry of Justice
Russian Federation
August 19, 2015,
registration N 38584



Electronic document text
prepared by Kodeks JSC and verified against:
Bulletin of the Bank of Russia,
N 70, 08/26/2015