چکیده:
به موجب تبصرة 3 مادة 8 قانون بیمة اجباری 1395، خسارت مالی واردشده به خودروی غیرمتعارف صرفاً تا میزان خسارت متناظر با گرانترین خودروی متعارف قابل جبران است. حکم این تبصرة به طرح این پرسش منجر می شود که حکم قانون ناظر بر تحدید مسئولیت مدنی مسبب حادثه و مسئولیت قراردادی بیمه گر است یا ناظر است بر تعیین میزان تکلیف قانونی بیمه گر در پرداخت خسارت از محل منابع جمعی؟ به نظر می رسد این قانون بر مبنای «تعاون اجتماعی دارندگان خودرو»، نظامی بر پایة جبران جمعی خسارت ایجاد کرده است که بدون ارتباط با قواعد مسئولیت مدنی و ضوابط بیمه ای خسارت زیان دیده را تا سقف مقرر در قانون قابل جبران می داند. هدف قانونگذار از متناظر نمودن خسارت خودروهای غیر متعارف، برداشت برابر خسارت از محل منابع جمعی است و قانون به نوع خودرو و موقعیت اقتصادی و اجتماعی زیان دیده یا مسبب حادثه و تحدید مسئولیت توجهی ندارد. ازاین رو مطالبه باقیمانده خسارت که امکان جبران آن از محل منابع جمعی میسر نشده است از مسبب حادثه قابل مطالبه می باشد. این مقاله با روش تحلیلی-توصیفی به بررسی این موضوع می پردازد که خسارت قابل جبران در این قانون یک حق قانونی مستقل از مسئولیت شخصی مسبب حادثه است و تعریف نمودن خودروی متعارف و متناظر نمودن خسارت خودروی غیر متعارف ابزاری است برای تعیین میزان خسارت و تخصیص برابر آن از محل منابع جمعی.
1- This article, which was conducted in a descriptive-analytical method
using relevant sources, deals with the different consequences of the
contractual liability system and the implementation of the collective
compensation system as realized in the compulsory insurance law of
2015. Relying on the divided views on the liability arising out of unusual
vehicles, the article emphasizes that contractual liability has been set aside
by the legislator in such cases and the law was founded on social cooperation
in order to protect injured parties through equality in compensation of
damages. According to this view, the injured party’s right to compensation
from the collective resources is different from claiming the damages as a
debt from the cause of damage’s properties.
2- The majority of scholars believe that having defined the usual
vehicle and using the half of blood money of a Muslim man as a criterion for
his definition, the legislator limited the liability of cause of damage and
insurer to half of the blood money. They considered such a limitation as a
revocation of general rules of liability and an exception to the principle of
full compensation of damages. However, having set aside the liability of the
cause of the accident and eliminating insurance principles and rules, the
law of compulsory insurance has established a semi-administrative system
that pays damages equally in case of involvement of a vehicle in the accident
and without attention to the fault of the cause of the accident, the necessity
of establishing causation, religion and gender of the injured party, and
financial capability of the injured parties (i.e. the owner of unusually
expensive vehicles). The criterion for compensating losses incurred by the
owner of unusually expensive vehicles is the definition of usual vehicles and
matching the damages incurred by both usual and unusually expensive
vehicles. The unusually expensive vehicle owners’ right to receive
compensation from collective resources are equal to that of the owners of
usual vehicles and the additional loss could be claimed under general rules
of liability. There is no difference between usually, and unusually, expensive
vehicles in this regard as the ultimate aim of compensating for damage is to
protect injured parties, not the vehicles, or to cover civil liability arising out
of vehicles. The definition of usual vehicles and matching compensable
losses is a mean for receiving compensation from collective resources of
compensation in case of mere involvement of a vehicle in an accident which
entitles the injured party to receive such compensation and due to the fact
that it has nexus to public order no one could be deprived of such a right.
3- The social cooperation system is a separate system. In such a system
insurer is not the owner of the resources of the social cooperation system of
the owners of vehicles. In fact, when receiving and paying ,and recovering
the resources insurance companies act as agents which is different from
insurance activities that are commercial in nature. Recovering of damages
for personal injuries is set out as a factor for prevention not punitive damage
for traffic violations leading to the accident and is an exception to the
principle of a fiduciary relationship in the law of compulsory insurance that
is not set out in case of property damages.
4- The law contains words and phrases which denote the contractual
insurance of liability. However, under both collective systems of
compensation for damages and social cooperation, elements of both can be
seen through the compulsory insurance law, the injured party’s right to
receive compensation for collective resources should be considered an
independent and not a right to the property of the cause of accident and
insurer. The structure of the social cooperation system that is reflected in the
compulsory insurance law in an implied manner requires that the insurer
must pay the losses incurred by the injured party regardless of the civil
liability and insurance system and the aim of establishing this system is the
equality of the injured parties in receiving damages from collective resources
without eliminating the civil liability of the cause of the accident or taking
into account of any social, economic, religious or gender differences
between the injured party and the cause of the accident. Under Article 2
(note 2) of the compulsory insurance law receipt of compensation from
collective resources does not deprive the injured party of its right to resort to
the cause of action and in the case of involvement of different insurance
companies, the insurer of the vehicle causing the accident is liable for
payment of damages to the injured parties. Accordingly, it could not be
concluded that liability of the cause of the accident and the insurer is
limited to half of the full blood money.
5- In the collective compensation system, the insurer has no title to
resources of social cooperation provided by owners of vehicles and the
insurer is an agent of such a system. Losses to expensive vehicles are more
than the losses to non-expensive vehicles. Accordingly, the legislator has
defined the usual vehicles in order to determine damage incurred by parts of
expensive vehicles by matching them with identical parts of usual vehicles
and to pay compensation to all the victims in an equal manner, regardless of
the type of their car. In fact, matching damage and defining usual vehicles,
the criterion of which is half of the blood money of a Muslim man is a
means for equal allocation of collective resources to injured parties in order
to impede the owner of expensive vehicles from receipt of the collective
resources more than that is received by the owner of usual vehicles.