Subrogation

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Subrogation is a term from the social insurance law of the Swiss Federal Law on Occupational Old-Age, Survivors 'and Disability Pension Plans (BVG), which is regulated in Art. 27 of the Ordinance on Occupational Old-Age, Survivors' and Disability Pension Plans (BVV 2). Another paraphrase can be found as a subrogation provision in Art. 72, Paragraph 1 of the Insurance Contract Act (VVG), which, however, in the opinion of the legal scientist Peter Gauch , is formulated very unclearly.

etymology

The term subrogation is derived from surogate, or the Latin verb subrogāre (sub-, instead of; -rogāre, to ask) with the original meaning “to let the people choose someone in place of another; Suggest for by-election, allow post-election "from. In a figurative sense, put someone else in the place.

Principle of subrogation

The principle of subrogation is intended to exclude “overcompensation” for the claimant. This is regulated in the Health and Accident Insurance Act (KUVG 100):

"According to this principle, the insurer enters into the rights of the insured or his survivors in the context of its services to a liable third party."

In VVG 72 para. 1 it is described as follows:

"Claims for compensation to which the beneficiary is entitled against third parties are transferred to the insurer insofar as the latter has paid compensation."

By means of subrogation ("transfer of the rights of the injured person to the person liable to pay compensation"), for example, a disability insurance that provides benefits in the event of an accident with permanent physical injury can reclaim the benefits provided from the injuring person.

Occasionally more than one party is liable for damage. For example, in the event of an occupational accident, health insurance , occupational accident insurance , a manufacturer of a product under product liability law and another party causing the damage may be obliged to compensate for damage.

Under certain circumstances, the person entitled to compensation can direct claims against several obligated parties, which overlap or lead to a multiplication of the compensation.

Such enrichment is avoided by means of legal or contractual regulations. One method of avoiding so-called unjust enrichment was subrogation. It is sometimes referred to as the assignment of a recourse claim to the insurer.

If, in the above example, the injured party turns to the manufacturer and receives compensation for his damage in accordance with product liability law, an insurer who has already paid the injured party for the damage can, under contract or law, as a subrogation claim of the insurer from the injured party, surrender the further compensation desire.

In practice, the injured party does not necessarily notice that subrogation occurs in the event of damage, because the assertion of subrogation claims via legal or contractual assignments is often almost automatic.

literature

  • Gottfried Roos: About subrogation under Swiss law. Stämpfli & Cie., Bern 1928, OCLC 32567599 .
  • Max Guldener: Assignment, legal assignment and subrogation in international private law . HR Sauerländer, Aarau 1930, OCLC 11101166 .
  • Alfred Maurer: Accumulation and subrogation in social and private insurance. A contribution to the harmonization of legislation . In: Swiss Journal for Social Insurance . tape 19 , issue 3-4. Stämpfli & Cie AG, Bern 1975, ISBN 3-7272-9435-3 , p. 169-210 and pp. 241-313 ( sghvr.ch [PDF]).
  • Walter Fellmann: Regress and Subrogation. General principles . In: Liability and Insurance Law Conference, St. Gallen . 1999, OCLC 757764383 , p. 1-27 .
  • Alexander Müller: Recourse in the compensation law with special consideration of the private insurer . January 17, 2006 ( unisg.ch [PDF] dissertation).

Individual evidence

  1. BVV 2 - V of April 18, 1984 on occupational old-age, survivors' and disability benefits (BVV 2). admin.ch, accessed on November 13, 2016 .
  2. ^ Peter Gauch: The Insurance Contract Act: Old and in need of revision! In: Law Faculty - University of Freiburg (Ed.) : Recht . 1990, p. 65 ff . ( unifr.ch [PDF; accessed on November 13, 2016]).
  3. subrogating. In: American Heritage Dictionary of the English Language. 5th edition. 2011 (English, thefreedictionary.com ).
  4. subrogare. at www.pons.com, accessed November 13, 2016.
  5. Effect of subrogation. (PDF) at regress.admin.ch, accessed on November 13, 2016