of December 22, 2005 No. 12
About some questions of application by courts of the legislation on compulsory insurance from labor accidents and occupational diseases
Having discussed practice of application by courts of the legislation on compulsory insurance from labor accidents and occupational diseases, the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that compulsory insurance from labor accidents and occupational diseases is directed to indemnification, the insured worker caused to life or health in case of accomplishment of labor obligations by it, by insurance payments.
In causing cases in the course of work of harm to the citizen who is not belonging to the category of persons which are subject to compulsory insurance from labor accidents and occupational diseases, harm is compensated in accordance with general practice.
2. Explain to courts that the relations on compulsory insurance from labor accidents and occupational diseases are regulated by the Civil code of the Republic of Belarus (further – group of companies), the Presidential decree of the Republic of Belarus of August 25, 2006 No. 530 "About insurance activity" (further – the Decree No. 530), the Regulations on insurance activity in the Republic of Belarus approved by the Decree No. 530 (further – the Provision), the regulatory legal acts of Council of Ministers of the Republic of Belarus accepted according to the Decree No. 530, and also other acts of the legislation.
3. The exhaustive list of categories of citizens which life and health are subject to compulsory insurance from labor accidents and occupational diseases is provided in Provision Item 272. Citizens treat them: 1) working at the basis of employment contracts (contracts); 2) being persons appointed to the highest state positions, the deputies of the House of Representatives of National assembly of the Republic of Belarus, members of council of the Republic of National assembly of the Republic of Belarus performing the powers on professional basis, chairmen of local councils of deputies, and also judges; 3) working at the basis of civil agreements which subject are performance of works, rendering services or creation of intellectual property items, in the places provided by the insurer; 4) the performing paid works on the basis of membership (participation) in production cooperatives; 5) being heads of peasant farms, and also heads of the organizations – the single owners of their property earning reward for work from such work; 6) the Republic of Belarus which is according to article 29 of the Code about education by students (except for cadets and listeners) and involved in paid works in the organizations during practical training, inservice training, training, and also being the specialists doctors, persons who got the higher medical education outside the Republic of Belarus, and involved in paid works during preparation in clinical internship; 7) containing in the organizations of criminal executive system, being in medical and labor dispensaries and involved in accomplishment of paid works.
According to rules, stipulated in Item 277 Provisions, the listed physical persons are considered by the insurers insured irrespective of the actual accomplishment of the obligations on payment of insurance premiums. At the same time it is necessary to carry not only citizens of the Republic of Belarus, but also foreign citizens and persons without citizenship to such persons if they live or temporarily stay in the Republic of Belarus.
4. Performing work based on employment contracts (contracts) to courts it is necessary to recognize the citizens employed according to the procedure, the established legislation on work.
Distinctive features of civil agreements on which contractors – physical persons are subject to compulsory insurance is the subject of the agreement (performance of works, rendering services, creation of intellectual property items) and availability at the customer insurer of obligation to provide the specific place for its execution. Such place can be defined by the agreement, the act of performance of works (rendering services), other document or the oral order of the customer. It shall conform to industrial safety rules and requirements of safe engineering (paragraph two of subitem 1.3 of Item 1 of the Presidential decree of the Republic of Belarus of July 6, 2005 No. 314 "About some measures for protection of the rights of the citizens performing work on civil and employment contracts").
If work was performed by the citizen (group of citizens) on the civil agreement without provision by the customer of the place of its accomplishment, responsibility for approach of harmful effects is determined by rules of Chapter 58 of the Civil Code.
5. Courts should consider that, unlike the general bases of responsibility for damnification, the obligation of the insurer on implementation of insurance payments does not depend on fault of the insurer in harm approach, and comes in the presence of insured event which the fact of damage of the health insured owing to labor accident or occupational disease, confirmed in the procedure (Provision Item 271) established by the legislation is.
6. Courts should mean that the right to insurance payments since January 1, 2004 is had person whom harm was compensated by the employer by earlier acting legislation on the basis of the of the order (the order, the resolution) or the judgment (Provision Item 278). Purpose of insurance payments to these persons is made according to the procedure, provided by Provision Items 303-308.
7. Owing to Provision Item 279 the insurer shall make insurance payments and to the persons who sustained injuries, occupational disease or other damage of health till January 1, 2004 or lost the supporter, according to the procedure, provided by the Provision, in the presence of at the same time two conditions: 1) these persons had the right to indemnification from the employer by earlier existing legislation; 2) the case of indemnification remained not permitted.
In case of permission of requirements of such persons about purpose of insurance payments it is necessary to find out whether the fact of accident, occupational disease or other damage of health is confirmed and whether there is fault of the employer in approach of harmful effects (if harm is not done by the source of enhanced danger belonging to the employer).
It is necessary to carry to not permitted, in particular, cases when: 1) person did not address for indemnification; 2) person filed to the employer the corresponding petition, however the application till January 1, 2004 was not considered; 3) by the employer it is refused indemnification, but the dispute is judicially not resolved; 4) if on the case on indemnification which is in production of court the decision after January 1, 2004 was made on refusal in the claim in connection with origin at the claimant of the right to insurance payments.
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