Rus News Journal

The decision of the Constitutional Court of the Russian Federation from May, 31st, 2005 N 6 - P On the case of check of constitutionality of the Federal law About obligatory insurance of a civil liability of owners of vehicles in connection with inquiries of the State Meeting - El of Republic Altai Kurultaj, the Volgograd regional Duma, group of deputies of the State Duma and the complaint of citizen S.N.Shevtsov

the Name of the Russian Federation

the Constitutional Court of the Russian Federation as a part of chairm L. O.Krasavchikovoj, judges N.S.Bondarja, G.A.Gadzhiev, A.L.Kononova, S. P.Mavrina, Ju.D.Rudkina, A.Ja.Slivy, V.G.Strekozova, B.S.Ebzeeva, V.G.Yaroslavtsev,

with participation of the representative of the State Meeting - El of Republic Altai Kurultaj - doctors of jurisprudence D. And. Tabaeva, the representative of the Volgograd regional Duma - the candidate of jurisprudence M.N.Kozjuka, the representative of group of deputies of the State Duma - lawyer P.N.Lazunina, the constant representative of the State Duma in the Constitutional Court of the Russian Federation of E. B.Mizulinoj, the representative of the Federation Council - doctors of jurisprudence E. V.Vinogradovoj, being guided by article 125 (parts 2 and 4) Constitutions of the Russian Federation, points 1 and 3 parts of the first, parts of third and fourth article 3, points 1 and 3 parts of second article 22, articles 36, 74, 84, 85, 86, 96, 97 and 99 Federal constitutional laws About the Constitutional Court of the Russian Federation

has considered in a public meeting case about check of constitutionality of the Federal law About obligatory insurance of a civil liability of owners of vehicles .

the Occasion to a legal investigation were inquiries of the State Meeting - El of Republic Altai Kurultaj, the Volgograd regional Duma, group of deputies of the State Duma and the complaint of citizen S.N.Shevtsov. The basis to a legal investigation was the found out uncertainty of a question on, whether there correspond Constitutions of the Russian Federation the Federal law About obligatory insurance of a civil liability of owners of vehicles as a whole, and also its separate positions.

As inquiries and the complaint concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional law About the Constitutional Court of the Russian Federation has connected affairs under these references in one manufacture.

Having heard the message of the judge - lecturer V.G.Yaroslavtsev, explanations of representatives of the parties, the expert`s statement - Cand.Tech.Sci. Ju. B.Fogelsona, performances invited in session of the plenipotentiary of the Government of the Russian Federation in the Constitutional Court of the Russian Federation of M.Ju.Barshchevsky and representatives: from Federal Agency of insurance supervision - I. V.Lomakin - Rumjantseva, from the Russian union of autoinsurers - A. B.Zmojro, from the All-Russian social movement Movement of motorists of Russia - L.D.Olshansky, having investigated the presented documents and other materials, the Constitutional Court of the Russian Federation

has established:

1. In the references in the Constitutional Court of the Russian Federation applicants on the present business assert that the Federal law About obligatory insurance of a civil liability of owners of vehicles - As as a whole, and its separate positions - contradicts articles 2, 8 (a part 1), 18, 19, 27 (a part 1), 34 (a part 1), 35 (parts 1 and 2), 45 (a part 1), 55 (parts 2 and 3), 56 (a part 3) and 57 Constitutions of the Russian Federation as the general duty established by it on insurance of risk of a civil liability of owners of vehicles (under the threat of application to them of measures administratively - legal responsibility and in the presence of an interdiction of use of vehicles in case of default of the given duty) are right restriction to own, use and dispose of the property, is right to use freely the property for enterprise and other economic activities not forbidden by the law, and also infringement of the constitutional principle of inadmissibility of the edition of the laws cancelling or belittling the rights and freedom of the person and the citizen.

1. 1. As appears from references, actually applicants call into question constitutionality of introduction by the Federal law About obligatory insurance of a civil liability of owners of vehicles institute of obligatory insurance of risk of a civil liability of owners of vehicles, and also constitutionality of separate norms of the named Federal law by which relations on the conclusion of the corresponding contract of obligatory insurance are regulated.

So, the State Meeting - El of Republic Altai Kurultaj believes that for acceptance of the given Federal law there were no bases (according to the applicant, disputes on compensation of the harm caused by a vehicle as a source of raised danger, are regulated in addition to the general norms about compensation of harm by articles 1079 and 1083 GK the Russian Federation), and specifies in its discrepancy to the Civil code of the Russian Federation, in particular to article 421 establishing freedom of the contract, and article 934 proclaiming a principle of voluntariness of personal insurance. Besides, according to the applicant, an interdiction of use for territories of the Russian Federation of the vehicles which owners have not executed a duty on insurance of the civil liability, as well as an interdiction of carrying out concerning the specified vehicles of the state checkup and registration (point 3 of article 32 of the Federal law About obligatory insurance of a civil liability of owners of vehicles ) It is broken guaranteed by article 27 (a part 1) Constitutions of the Russian Federation the right of everyone to free movement, a choice of a place of stay and a residence.

the State Meeting - El of Republic Altai Kurultaj challenges also constitutionality of articles 6, 10, 15, 16 and points 1 and 2 articles 30 of the Federal law About obligatory insurance of a civil liability of owners of vehicles however as uncertainty of a question on their conformity of the Constitution of the Russian Federation is absent, is absent and provided by a part of second article 36 of the Federal constitutional law About the Constitutional Court of the Russian Federation the basis for acceptance of the given inquiry in this part to consideration.

constitutional law Infringement to own, use and dispose of the property the Volgograd regional Duma sees in an establishment the Federal law About obligatory insurance of a civil liability of owners of vehicles duties on insurance of a civil liability before vehicle registration in the limited (five-day) term after occurrence of the right of possession by a vehicle (article 4 point 2). Besides, according to the applicant, the payment for obligatory insurance in the form of an insurance premium, possessing all signs of the tax, does not consider a living wage in the Russian Federation and consequently is disproportionate financial obremeneniem for the majority of citizens - owners of vehicles.

In inquiry of group of deputies of the State Duma is underlined that fastening in article 7 of the Federal law About obligatory insurance of a civil liability of owners of vehicles the fixed insurance sums does not guarantee to owners of vehicles a damage full indemnification at insured event approach; Delegation by the legislator of the constitutional powers on an establishment of insurance tariffs to the Government of the Russian Federation (article 8 point 2) has led to introduction of the economically not well-founded sizes of insurance tariffs that has worsened position of citizens - owners of vehicles, and granting of the right to licence reception only to those insurance organisations which are included into professional association of insurers (article 21 point 2), has deprived of owners of vehicles of the option of the insurance company and has laid down the insurance organisations in unequal conditions.

Citizen S.N.Shevtsov illegality of the Federal law About obligatory insurance of a civil liability of owners of vehicles Sees, in particular, that he establishes a duty on insurance of a civil liability for each vehicle separately though simultaneous use by one person of several vehicles is objectively impossible, and also that an insurance premium which payment serves one of conditions of fulfilment concerning its payer of legally significant actions - the state checkup and vehicle registration as not mentioned by the Tax code of the Russian Federation, represents illegally established gathering.

1. 2. Thus, a subject of consideration of the Constitutional Court of the Russian Federation on the present business are positions of the Federal law being in system communication About obligatory insurance of a civil liability of owners of vehicles Providing obligatory insurance of risk of a civil liability of owners of vehicles by the conclusion of the contract of obligatory insurance as necessary condition of possession, using and order a vehicle, and also defining conditions and a procedure of obligatory insurance.

2. The mission of the property right as guaranteed and protected by the Constitution of the Russian Federation of the subjective right consists in providing to its owners certain degree of freedom in economic sphere. At the same time within the limits of legal regulation of relations of the property this right owing to the Constitution of the Russian Federation (article 71, point in ; article 55, a part 3) can be limited by the legislator in the purposes established by it, i.e. taking into account the basic constitutional values.

the Requirement following from interconnected positions of articles 7 (a part 1), 8 (a part 2) and 17 (the part 3) Constitutions of the Russian Federation, about necessity of correlation of the property right belonging to the person with the rights and freedom of other persons means that the proprietor has the right to make at own discretion concerning property belonging to it any actions if they do not contradict the law and other legal certificates and do not break the rights and legitimate interests of the third parties. Thereby the property right in the limits defined by the Constitution of the Russian Federation, assumes not only possibility of realisation by the proprietor of competences of possession making these right, usings and orders property, but also execution of burden of the maintenance of property belonging to it (article 210 GK of the Russian Federation).

Regulating the maintenance of the property right and providing protection of health, the rights and legitimate interests of other persons by means of putting on on proprietors of additional duties and obremeneny, connected with possession property, the federal legislator should consider also special characteristics of the objects being in the property which use is connected with the raised danger to associates. According to article 1079 GK of the Russian Federation legal bodies and the citizens which activity is connected with the raised danger to associates, in particular with use of vehicles, are obliged to compensate the harm caused by a source of raised danger if will not prove that harm has arisen owing to force majeure or intention of the victim. However fastening in the Civil code of the Russian Federation of the raised responsibility of owners of vehicles in itself yet is not a guarantee of compensation of harm victim.

For protection of the rights of victims on compensation of the harm caused to their life, health or property at use of vehicles by other persons, in the legal social state with market economy the institute of insurance of risk of a civil liability of owners of the vehicles, based on a principle of division of responsibility is applied.

2. 1. Obligatory insurance, according to the Civil code of the Russian Federation, - one of forms of property insurance (along with voluntary insurance) at which to the insurer the law assigns a duty to insure life, health or property of other persons or the civil liability before other persons at own expense or at the expense of interested persons (article 927 point 2) that will be co-ordinated with article 421 " rule; contract Freedom According to which compulsion to the contract conclusion is not supposed, except for cases when a duty to conclude the contract is provided by the given Code, the law or voluntary accepted obligation. The establishment of compulsion of insurance of risk of a civil liability of owners of vehicles the federal law is caused konstitutsionno by the fixed requirement of special protection such significant for all society of the inaliennable blessings, as life and health of the person, protection of its property (article 2, 20, 41 and 45 Constitutions of the Russian Federation).

the Federal law About obligatory insurance of a civil liability of owners of vehicles With a view of protection of the rights of victims on compensation of the harm caused to their life, health or property at use of vehicles by other persons (preamble), on owners of these vehicles whom, according to article 1, admit their proprietors, and also the persons owning a vehicle on the right of economic conducting or the right of an operational administration, or on other lawful basis (the rent right, the power of attorney to the management right and so forth), since July, 1st, 2003 the duty on insurance of risk of the civil liability (points 1 and 2 articles 4) by the conclusion of the contract of obligatory insurance with the insurance organisation (article 15 point 1) is assigned; Thus in territory of the Russian Federation use of the vehicles which owners have not executed a duty on insurance of the civil liability is forbidden, concerning the specified vehicles survey and registration (article 32 point 3) are not spent state technical, and the persons who have broken the requirements established by the given Federal law about obligatory insurance of a civil liability of owners of vehicles, bear responsibility according to the legislation of the Russian Federation (the paragraph of article 4 second point 6).

Introduction of institute of obligatory insurance of a civil liability of owners of the vehicles, which essence consists in distribution of the adverse consequences connected with risk of approach of a civil liability, to all lawful owners of vehicles, taking into account such principle of obligatory insurance, as a guarantee of compensation of the harm caused to life, to health or property of victims, in the limits established by the Federal law About obligatory insurance of a civil liability of owners of vehicles (the paragraph of second article 3), it is directed on increase of level of protection of the right of victims on harm compensation. Assigning to owners of vehicles a duty to insure risk of the civil liability in favour of persons to whom harm can be done, and fixing thus possibility in all cases, irrespective of financial position prichinitelja harmAnd, to provide suffered harm compensation in the limits established by the law, the federal legislator realises one of functions of the Russian Federation as the social lawful state which policy is directed on creation of the conditions providing worthy life and free development of the person (article 1 and 7 Constitutions of the Russian Federation) that in insufficient degree would be provided in the absence of the adequate mechanism of protection of the rights of the victims, answering to a modern level of development of quantitative and technical indicators of the vehicles repeatedly increasing their public danger.

Accordingly, fastening in the Federal law About obligatory insurance of a civil liability of owners of vehicles a principle of generality and compulsion of insurance of a civil liability (the paragraph of third article 3), i.e. Duty putting on on insurance of risk of a civil liability on all without an exception of owners of vehicles, and equally principle of inadmissibility of use in territory of the Russian Federation of the vehicles which owners have not executed this duty (the paragraph of fourth article 3), does not contradict following of the Constitution of the Russian Federation (article 6, a part 2; article 19) to equality and justice requirements also cannot be considered as disproportionate restriction of constitutional laws of citizens.

Thus the duty of insurance of risk of a civil liability with reference to each vehicle, irrespective of their total at one owner, does not mean multiplication of burden of the maintenance of property as the risk of responsibility communicates the legislator not only with the owner of a vehicle, but also with possession and using each vehicle as the independent source of the raised danger possessing own technical characteristics and different from other vehicles that influences probability of approach of insured event.

2. 2. Thus, introduction by the Federal law About obligatory insurance of a civil liability of owners of vehicles Institute of obligatory insurance of risk of a civil liability and its distribution on all owners of vehicles with reference to each vehicle, and also fastening by paragraphs of third and fourth article 3, points 1 both 2 articles 4 and point 3 of article 32 of the given Federal law of a duty of insurance by owners of vehicles of risk of the civil liability and inadmissibility of use in territory of the Russian Federation of the vehicles which owners have not executed this duty, do not contradict the Constitution of the Russian Federation.

3. By means of introduction of obligatory insurance of risk of a civil liability of owners of vehicles - insurers in the contract of obligatory insurance the victim whom articles 931 owing to point 3 GK of the Russian Federation admit vygodopriobretateljami and in which advantage it is considered the prisoner the given contract, provide the right to compensation of the harm caused to life or health, a right to health protection, protection of property rights (article 37, parts 1 and 3; article 35, a part 1; article 41, a part 1; article 53 of the Constitution of the Russian Federation).

Thus features of the legal nature of the contract of obligatory insurance as contracts in favour of the third party - the victim, allowing to delimit it from similar on consequences (compensation of the harm caused to life, health or property of the victim), but the different obligation on other bases owing to a tresspass (deliktnoe the obligation), owing to articles 2, 17 (a part 1), 18, 19 (a part 1), 55 (a part 3) and 71 (point about ) Constitutions of the Russian Federation demand from the legislator of an establishment corresponding, more preferable in comparison with extratreaty obligations, conditions of realisation by victim of the rights following from insurance pravootnoshenija.

3. 1. As appears from a legal position of the Constitutional Court of the Russian Federation stated in the Decision from December, 26th, 2002 N 17 - P on the case of check of constitutionality of the paragraph of second point 4 of article 11 of the Federal law About obligatory state life insurance and health of military men, the citizens called on military gathering, persons of ordinary and commanding structure of law-enforcement bodies of the Russian Federation, the State fire service, employees of establishments and bodies criminally - executive system and employees of federal bodies of tax police the victim is the least protected from all participants pravootnoshenija on obligatory insurance.

Hence, at definition of an orientation of legal regulation of the relations arising in the course of obligatory insurance of a civil liability of owners of vehicles, it is necessary - proceeding from the constitutional principle of equality and the constitutional principle of justice closely connected with it - to provide special legal guarantees of protection of the rights of the victim which should be adequate to the legal nature and the purposes of insurance of a civil liability of owners of vehicles, and also character corresponding pravootnosheny. The given requirement has been considered by the federal legislator at an establishment, in particular, the size of the insurance sum in which limits the insurer undertakes to compensate at approach of each insured event suffered the done harm (article 7 of the Federal law About obligatory insurance of a civil liability of owners of vehicles ) .

Following from article 45 of the Constitution of the Russian Federation a state duty to guarantee protection of the rights of the victim (vygodopriobretatelja) assumes also necessity of an establishment of risk that will allow to stimulate timely execution of the duties by it and considerably to lower probability of infringement of the rights of the victim. As has specified the Constitutional Court of the Russian Federation in the Decision from December, 26th, 2002 N 17 - P, fastening in the law of a rule on risk acts as a special guarantee of protection of the rights of the insured person which from the point of view of principles of equality and justice is adequate to position and possibilities of this person as the least protected participant corresponding pravootnosheny and should be provided on the basis of the simplified procedures of reception of the relying insurance sums.

According to article 927 point 2, article 931 and point 1 of article 936 GK of the Russian Federation, the paragraph of eighth article 1, point 1 of article 13 and point 1 of article 15 Federal. The law About obligatory insurance of a civil liability of owners of vehicles the duty on civil liability insurance is carried out by owners of vehicles by the conclusion of the contract of obligatory insurance with the insurance organisation (insurer) on which the insurer undertakes for the payment (insurance premium) caused by the contract at approach of the event (insured event) provided in the contract to compensate to the victim caused thereof events harm of his life, to health or property (to carry out insurance payment) within the sum defined by the contract (the insurance sum); The victim has the right to make to directly insurer the demand about compensation of the harm caused to his life, health or property, within the insurance sum. According to article 1072 GK of the Russian Federation the legal body or the citizen who has insured the responsibility as voluntary or obligatory insurance in favour of the victim, in a case when insurance compensation is not enough completely to compensate the done harm, compensate a difference between insurance compensation and the actual size of a damage.

On sense of the resulted statutes, the requirement of the victim - vygodopriobretatelja to the insurer of the owner of a vehicle about payment of insurance compensation (about realisation of insurance payment) within the limits of the contract of obligatory insurance is independent and differs from the requirements following from obligations owing to a tresspass, on the bases of occurrence of the corresponding obligation, conditions of realisation of the subjective rights within the limits of each of them, to the size of compensation, the person, obliged to carry out insurance payment, to term of limitation of actions, a special-purpose designation. So, in insurance pravootnoshenii the obligation of the insurer to the suffered arises on the basis of concluded by the insurer with the insurer of the contract of insurance of a civil liability, instead of norms of chapter 59 GK of the Russian Federation; Directly insurer, and the approach of insured event attracting such duty is obliged to carry out payment of insurance compensation, in itself does not release the insurer from grazhdansko - legal responsibility before suffered for causing to it of harm.

Distinctions in the legal nature and a special-purpose designation following from the contract of obligatory insurance of a duty of the insurer on payment of insurance compensation and deliktnogo obligations cause also distinctions in mechanisms of compensation of harm. Meanwhile the mechanism of realisation of the right of the victim, life, is done to health or which property harm at use of vehicles by other persons, on reception of insurance payment at the insured event approach, established by the Federal law About obligatory insurance of a civil liability of owners of vehicles On complexity degree does not differ, in essence, from the mechanism provided for deliktnyh of obligations by chapter 59 GK of the Russian Federation. Mixture of various obligations and their elements, one their which is an order of realisation victim of the right, leads to substitution of one grazhdansko - legal institute to another and attracts adverse consequences for the party in which interests it was established, in this case - the victim (vygodopriobretatelja), than its constitutional laws and freedom are restrained.

3. 2. According to article 5 of the Federal law About obligatory insurance of a civil liability of owners of vehicles conditions on which the contract of obligatory insurance consists, should correspond to the typical treaty provisions of obligatory insurance containing in published Government of the Russian Federation rules of obligatory insurance. At the same time article 4 of the same Federal law with which positions there is in system communication article 5, it is provided that owners of vehicles are obliged to insure at own expense as insurers risk of the civil liability on conditions and is perfectly in order, which are established by the given Federal law and according to it (point 1).

Uncertainty concerning volume delegated to the Government of the Russian Federation of power has allowed the Government of the Russian Federation to include in confirmed by it the decision from May, 7th, 2003 N 263 Rules of obligatory insurance of a civil liability of owners of vehicles of position, in which the concepts containing in the Federal law About obligatory insurance of a civil liability of owners of vehicles are treated differently. For example, according to point 7 Corrected insured event causing as a result dorozhno - transport incident in validity of obligatory insurance by the owner of a vehicle of harm of life admits, to health or property of the victim which involves a duty of the insurer to make insurance payment whereas in article 1 of the named Federal law it is established that insured event is an approach of a civil liability of the insurer, other persons which risk of responsibility is insured under the contract of obligatory insurance. As a matter of fact, insurance of risk of a civil liability of owners of vehicles is substituted for other kind of insurance - insurance of the harm caused by the owner of a vehicle and by that actually conducts to an independent establishment the Government of the Russian Federation of conditions of obligatory insurance of risk of a civil liability of owners of vehicles.

Meanwhile the requirement of definiteness turned to the legislator, clearness, unambiguity of the rule of law and its coordination follows from the constitutional principles of a lawful state, equality and justice with system of operating legal regulation. As has specified the Constitutional Court of the Russian Federation in the Decision from April, 6th, 2004 N 7 - P on the case of check of constitutionality of positions of point 2 of article 87 of the Code of trading navigation of the Russian Federation and the governmental order of the Russian Federation About activity of not state organisations on pilotage pilotage on sense of articles 4 (a part 2) and 15 (a part 1) Constitutions of the Russian Federation, fixing a principle of leadership of the law, in system unity with positions of its article 115 (a part 1) and the Federal constitutional law About the Government of the Russian Federation (Articles 2 and 3), ordering to the Government of the Russian Federation to carry out normotvorcheskie powers on the basis and to execute the Constitution of the Russian Federation, federal laws and standard decrees of the President of the Russian Federation, the principle of definiteness and consistency of legislative regulation extends and on those rules of law with which the legislator delegates to the Government of the Russian Federation those or other powers. Other would mean that the legislator has the right to delegate to the Government of the Russian Federation uncertain responsibility on volume, and the Government of the Russian Federation - to realise them arbitrarily, than the principle of division of the government on legislative, executive and judicial (article 10 of the Constitution of the Russian Federation), assuming in sphere of legal regulation differentiation of the legislative function assigned to Federal Meeting, and functions of maintenance of execution of the laws, the Russian Federation assigned to the Government would be broken.

On literal sense of article 5 of the Federal law About obligatory insurance of a civil liability of owners of vehicles Conditions on which the contract of obligatory insurance consists, should correspond to the conditions defined by the Government of the Russian Federation in rules published by it of obligatory insurance (also the Government of the Russian Federation in the decision from May, 7th, 2003 N 263 from this proceeds). However, as appears from given article in system communication with point 1 of article 4 and the paragraph of eighth article 1 of the named Federal law, the legislator did not give to the Government of the Russian Federation power to define treaty provisions of obligatory insurance any way, without being based on the law.

Delegation by the federal legislator to the Government of the Russian Federation of powers on an establishment of conditions and a procedure of obligatory insurance in itself does not contradict the Constitution of the Russian Federation if it is based on the constitutional principles of division of the authorities and inadmissibility of restriction of the rights and freedom of the person and the citizen by certificates below level of the federal law. Meanwhile in this case the federal legislator, without having fixed criterion of definition of treaty provisions of obligatory insurance and by that having left it to the discretion of the Government of the Russian Federation, has admitted possibility of any interpretation of their volume and the maintenance, so - restrictions of the rights and freedom of citizens the certificate of the Government of the Russian Federation. As a result dopushchennOh uncertainty of regulation the purpose of the Federal law " is deformed; About obligatory insurance of a civil liability of owners of vehicles as directed on the raised protection of the rights of victims on compensation of the harm caused to their life, health or property at use of vehicles by other persons and by that - the principle of harmony of this purpose to the selected mechanism of protection of the rights of victims is broken.

Thus, article 5 of the Federal law About obligatory insurance of a civil liability of owners of vehicles in a part supposing any definition by the Government of the Russian Federation of treaty provisions of obligatory insurance of a civil liability of owners of vehicles, contradicts articles 19 and 45 (a part 1) to the Constitution of the Russian Federation. A recognition of article 5 of the Federal law About obligatory insurance of a civil liability of owners of vehicles in the specified part of the contradicting Constitution of the Russian Federation does not assume validity loss by the standard legal certificates of the Government of the Russian Federation accepted according to given article and prisoners according to them contracts of obligatory insurance that does not release the Government of the Russian Federation from necessity to eliminate - taking into account the present Decision - the positions of such certificates dispersing from the maintenance and the purposes of the named Federal law, and also with principles of the raised protection of the rights of the victim on the basis of the simplified procedures of reception of the insurance sums, inadmissibility of deterioration of position of the victim and decrease in the guarantees of the right of the victim established by these Federal law on compensation of the harm caused to it at vehicle use by other persons.

3. 3. According to the paragraph of twelfth article 1 of the Federal law About obligatory insurance of a civil liability of owners of vehicles insurance tariffs on obligatory insurance are the price rates established according to the given Federal law, applied by insurers at insurance premium definition under the contract of obligatory insurance and consisting of base rates and factors. Insurance tariffs (their marginal levels), their structure and an order of application by insurers at insurance premium definition under the contract of obligatory insurance on the basis of point 2 of article 8 of the same Federal law have been confirmed by the Government of the Russian Federation (the decision from May, 7th, 2003 N 264).

the Decision of a question on conformity of the Constitution of the Russian Federation of investment with the legislator of the Government of the Russian Federation power on any establishment of obligatory payments depends on the legal nature of such payments. Recognising that the contract of obligatory insurance of a civil liability is private law institute, and participants insurance pravootnoshenija - independent, imushchestvenno independent subjects equal in rights, the insurance premium representing a payment for rendering by the insurer - the organisation which is engaged in enterprise activity, services (insurance), i.e. equivalent, vozmezdno - the individual price of the contract, has, contrary to opinion of applicants, grazhdansko - legal, instead of the tax nature. That fact that infringement by the owner of a vehicle of a duty on insurance of the civil liability attracts the responsibility provided by the Code of the Russian Federation about administrative offences (a part of 1 article 12. 3 and a part of 2 articles 12. 37), is not the basis for a recognition of the insurance premium paid for insurance, tax or other fiscal payment, and only confirms specificity of the institute of obligatory insurance of the civil liability which have the valid (public) purposes and based on prioritetnosti of protection of life, health and property of victims.

Owing to article 954 GK of the Russian Federation in interrelation with the paragraph of twelfth article 1 and article 9 of the Federal law About obligatory insurance of a civil liability of owners of vehicles Insurers independently define the size of the insurance premium which is subject to payment under the contract of obligatory insurance as payment for rendered services, counting it as product of base rates and factors of insurance tariffs that allows to individualise the size of an insurance premium depending on set of conditions of use of vehicles. Differently, insurance tariffs in itself are not payments, and price rates which define the price on grazhdansko - to the legal contract owing to what have same chastnopravovuju the nature. Their unification by public authority on the basis of the paragraph of second point 1 of article 424 GK of the Russian Federation and the paragraph of third point 2 of article 11 of the Law of the Russian Federation from November, 27th, 1992 About the organisation of insurance business in the Russian Federation Depending on the characteristics essentially influencing size of insurance risk and directly established by the law, - unlike the general rules of an establishment of the price under the agreement of parties contracts (the paragraph the first point 1 of article 424 GK of the Russian Federation) or applications developed by insurers as the professional organisations of insurance tariffs (point 2 of article 954 GK of the Russian Federation) - it is caused by the public purpose of obligatory insurance of a civil liability and it is directed on maintenance of the constitutional principle of equality (article 19 of the Constitution of the Russian Federation).

As repeatedly specified the Constitutional Court of the Russian Federation, delegation by the federal law to the Government of the Russian Federation of power on an establishment of insurance tariffs on obligatory insurance (their marginal levels) - taking into account their not tax character - does not break the constitutional instruction about lawfully established taxes and tax collections and fixed by the Constitution of the Russian Federation competence differentiation between Federal Meeting and the Government of the Russian Federation. Granting of such power to the Government of the Russian Federation cannot be considered as any and nothing motivirovannoe. The government of the Russian Federation, being the higher executive office of the government, can operatively react to the economic and social changes occurring in the market of obligatory insurance, and to carry out state regulation of insurance tariffs with a view of, equitable to interests of this market.

At the same time the federal legislator has provided limits in which the Government of the Russian Federation has the right to realise the power assigned to it. As appears from point 1 of article 8 of the Federal law About obligatory insurance of a civil liability of owners of vehicles state regulation of insurance tariffs is carried out by means of an establishment according to the given Federal law of economically well-founded insurance tariffs or their marginal levels, and also structures of insurance tariffs and an order of their application by insurers at insurance premium definition under the contract of obligatory insurance. Thus base rates of insurance tariffs depend on technical characteristics, design features and appointment of the vehicles essentially influencing probability of a tresspass at their use and for the potential size of caused harm, and the factors which are a part of insurance tariffs, - from territory of primary use of a vehicle, presence or absence of the insurance payments made by insurers at realisation of obligatory insurance of a civil liability of owners of the specified vehicle during the previous periods, others essentially influencing size of insurance risk of circumstances (points 1 and 2 articles 9). Besides, by insurance tariffs the factors considering an order of use of a vehicle (the paragraph of article 9 second point 2) and action of the insurer (article 9 point 3) should be established; Period of validity of insurance tariffs cannot be less than six months (article 8 point 3).

Having entered intrinsic characteristics and the minimum periods of validity of the insurance tariffs, providing to owners of vehicles as to insurers observance of a principle of equality and a mode of legal definiteness, the federal legislator delegated to the Government of the Russian Federation, in essence, only an establishment of their sizes and structure. As appears from the named positions, at acceptance of insurance tariffs (their marginal levels) the Government of the Russian Federation should consider an estimation of the business factors influencing for their size, i.e. to carry out an economic justification of differentiation of base rates and factors of insurance tariffs on the basis of, in particular, statistical data about obligatory insurance which are subject to official publication by federal enforcement authority on supervision of insurance activity.

Thus, position of the paragraph of first point 2 of article 8 of the Federal law About obligatory insurance of a civil liability of owners of vehicles the allocating Government of the Russian Federation power on an establishment of insurance tariffs on obligatory insurance (their marginal levels), does not contradict the Constitution of the Russian Federation.

4. According to point 2 of article 21 of the Federal law About obligatory insurance of a civil liability of owners of vehicles insurers should be members of professional association of the insurers operating according to the given Federal law. According to group of deputies of the State Duma, the named norm in system communication with point 3 of same article recognises the right of reception as the insurer of the licence for insurance of a civil liability of owners of vehicles only behind those insurance organisations which are included into professional association of insurers, i.e. actually in one organisation - the All-Russia union of insurers; thereby owners of vehicles lose the option of the insurance company, and the insurance organisations are laid down in unequal conditions.

Professional association of insurers as it is defined in the paragraph the second point 2 of article 24 of the Federal law About obligatory insurance of a civil liability of owners of vehicles It is created and operates according to positions of the legislation of the Russian Federation which are provided concerning associations (unions) and are applied taking into account the features of the status of professional association of insurers established by the given Federal law.

Proclaiming the right of everyone to association, including the right to create trade unions for protection of the interests, the Constitution of the Russian Federation guarantees freedom of activity of public associations and provides in article 30 an interdiction for compulsion to the introduction into any association or stay in it. Given article in interrelation with articles 8 (a part 1), 34 (1) and 35 (parts 1 and 2) Constitutions of the Russian Federation make a part konstitutsionno - a legal basis for participation of everyone in sharing of the abilities and property for enterprise and other economic activities not forbidden by the law by creation of the commercial associations, which in itself also can form on a voluntary basis associations, the unions, and is equal also others organizational - the legal forms of collective interaction connected with necessity of development of uniform corporate norms of behaviour of participants of corresponding activity. Proceeding from it in the Federal law About the noncommercial organisations It is provided that the commercial organisations with a view of coordination of their enterprise activity, and also representation and protection of the general property interests can create associations in the form of associations or the unions which are the noncommercial organisations.

At the same time the federal legislator, being guided by articles 18, 71 (points in e ) And 76 Constitutions of the Russian Federation in interrelation with its articles 17 (a part 3) and 55 (a part 3) and considering necessity of the coordination of the private economic initiative with requirement for granting of certain volume of publicly significant services of due quality, have the right to make to subjects of economic activities concrete demands and to establish the mechanism of control over conditions of its realisation which would answer criteria of harmony and proportionality of the state intervention and would provide the private and public has begun in economic activities sphere. So, it can assign on the subjects of economic activities who are carrying out including public functions and consequently, operating not only in interests of extraction of profit, but also with a view of satisfaction of public requirements, as a condition of realisation of their activity a duty to be members of corresponding professional association. Thus it anyway is connected by the constitutional principle of inadmissibility of distortion of the right a being on employment by the enterprise and other economic activities not forbidden by the law (article 34, a part 1, Constitutions of the Russian Federation) and a duty not to suppose the economic activities directed on monopolisation and an unfair competition (article 34, a part 2, Constitutions of the Russian Federation).

Thus, an in itself establishment the federal legislator as a necessary condition of realisation of activity in sphere of obligatory insurance of risk of a civil liability of owners of vehicles of membership of the insurance organisations in professional association of insurers, as directed on realisation of the purposes of the Federal law About obligatory insurance of a civil liability of owners of vehicles Is not disproportionate restriction of the right of everyone on association and does not contradict the Constitution of the Russian Federation.

Besides, the Federal law About obligatory insurance of a civil liability of owners of vehicles does not limit owners of vehicles in a choice of the insurance organisations which are members of professional association of insurers that proves to be true also point 14 of Rules of obligatory insurance of a civil liability of owners of vehicles according to which they have the right to a free choice of the insurer who is carrying out obligatory insurance and consequently, their constitutional laws are not mentioned by challenged position.

Proceeding from stated and being guided by parts of first and second article 71, articles 72, 74, 75, 86, 87 and 100 Federal constitutional laws About the Constitutional Court of the Russian Federation The constitutional Court of the Russian Federation

has decided:

1. To recognise positions of paragraphs of third and fourth article 3, points 1 and 2 articles 4 and point 3 of article 32 of the Federal law About obligatory insurance of a civil liability of owners of vehicles insurance fixing a duty by owners of vehicles of risk of the civil liability and inadmissibility of use in territory of the Russian Federation of the vehicles which owners have not executed this duty, not contradicting the Constitution of the Russian Federation.

2. To recognise article 5 of the Federal law About obligatory insurance of a civil liability of owners of vehicles in The part supposing any definition by the Government of the Russian Federation of treaty provisions of obligatory insurance of a civil liability of owners of vehicles, not corresponding Constitution of the Russian Federation, its articles 19 and 45 (a part 1).

the Recognition of article 5 of the Federal law About obligatory insurance of a civil liability of owners of vehicles In the specified part of the contradicting Constitution of the Russian Federation does not assume validity loss by the standard legal certificates of the Government of the Russian Federation accepted according to given article and prisoners according to them contracts of obligatory insurance that does not release the Government of the Russian Federation from necessity to eliminate - taking into account the present Decision - the positions of such certificates dispersing from the maintenance and the purposes of the named Federal law, and also with principles of the raised protection of the rights of the victim on the basis of the simplified procedures of reception of the insurance sums, inadmissibility of deterioration of position of the victim and decrease in the guarantees of the right of the victim established by these Federal law on compensation of the harm caused to it at vehicle use by other persons.

3. To recognise position of the paragraph of first point 2 of article 8 of the Federal law About obligatory insurance of a civil liability of owners of vehicles the allocating Government of the Russian Federation power on an establishment of insurance tariffs on obligatory insurance (their marginal levels), not contradicting the Constitution of the Russian Federation.

4. To recognise point 2 of article 21 of the Federal law About obligatory insurance of a civil liability of owners of vehicles as giving the right of reception by the insurer of the licence for insurance of a civil liability of owners of vehicles only to those insurance organisations which are included into professional association of the insurers, not contradicting the Constitution of the Russian Federation.

5. According to a part of first article 79 of the Federal constitutional law About the Constitutional Court of the Russian Federation The present Decision is definitive, is not subject to the appeal, comes into force immediately after declaration and operates directly.

6. According to article 78 of the Federal constitutional law About the Constitutional Court of the Russian Federation the present Decision is subject to immediate publication in and Meeting of the legislation of the Russian Federation . The decision should be published also in the Bulletin of the Constitutional Court of the Russian Federation .

the Constitutional Court of the Russian Federation