Is the mandate of gun liability insurance constitutional

259 Discussion report by Alexander Sajkow The discussion following the previous day by Anna Gansel (Humboldt University of Berlin) was chaired by Prof. Dr. Schwintowski (Humboldt University Berlin). Prof. Dr. Dr. h.c. Jürgen Basedow (Max Planck Institute for Comparative and International Private Law, Hamburg) asked Gansel to explain what is meant by the fact that the employer handles the pension costs himself. He also remembers that the BGH has so far refused to allow the statutes of the ZVK to be checked. Gansel replied that “servicing the supply burdens” meant that the public employer would take over these services by assuming debt. If the insured event occurs, according to the current legal situation, the policyholder would have a claim against the ZVK, which, according to its model, the employer would fulfill. The case law on the lack of control over the General Terms and Conditions relates to the relationship between the insured, i.e. employees, and the ZVK. In this case, it is about the right to perform, which is agreed in the collective agreement. When checking the legality of the equivalent value, however, it is possible to apply the general terms and conditions law. When asked, Gansel explained that assuming the pension commitments could be more economical for the company than remaining in the pension fund. The discount rate would determine how much the company could save. There is an interest, especially among public companies, in getting out of the VBL or ZVK, which are in competition with private companies (hospitals, waste, transport, exhibition grounds). At the moment there are no insurers or banks that offer financing for takeovers because their model is still theory. The highest court has not yet decided whether the equivalent value is illegal. But there are insurance companies and banks that finance redemptions. Prof. Dr. Dieter Rückle (University of Trier) drew attention to the case law of the BGH on the so-called book value clauses in articles of association. According to this case law, the termination of a partner in a partnership should not be made economically impossible by the fact that the severance payment agreed for the departing partner would be far below the real enterprise value. This case law can be applied analogously to the problem of the equivalent value. Basedow took up Rückle's remark and said that one would come into conflict with the general terms and conditions law if one drew analogies to company law, since the general terms and conditions law did not apply to corporate relationships. In this regard, Gansel said that, in her opinion, the participation agreement was an agreement that was primarily not of an organizational nature, but rather a group insurance contract that was primarily of a contractual nature. 260 Peter A. Schramm (Actuary DAV, PKV expert, Diethardt) asked how employees are protected in the event that the employer takes over the pension obligations and then becomes insolvent. Gansel replied that there were two options with their model. One possibility is that there is no privatization, but that the surcharge is too high and that more cost-effective financing is being considered. In this case, the employer would still have a public debtor who was not capable of bankruptcy. In this case, protection would exist under Section 1, Paragraph 1, Clause 3 of the BetrAVG, according to which the employer is liable for the commitment. This is enough. The BetrAVG would exempt employers under public law from their obligation to pay into the pension insurance association. In the case of privatization, however, insolvency insurance is necessary because the employer owes a pension commitment of the same type and scope. The employer then has to pay into the pension insurance association. Oskar Durstin (insurance consultant, Mering) confirmed practical experience with hospitals that would proceed according to Gansel's description and switch to financing care services through insurers. Schwintowski said that if Gansel's model were to be implemented, the companies would leave an association. He asked the actuaries present whether they saw the risk of the risk structure of the members remaining in the fund deteriorating due to adverse selection. If so, the follow-up question is what legal consequences should be drawn from this. Gansel explained that realizing their model would set in motion a downward spiral. Only the bad risks would remain in the pension fund, which would result in an increase in the contribution rates. However, she pointed out that employers have no statutory membership and that they have a contractual right to terminate the contract. One can only argue in good faith if one wants to prevent those involved from exercising their right of termination. In the area of ​​social insurance, the Federal Constitutional Court ruled that there was no entitlement to a particular system being maintained as such. In addition, the employee's pension entitlements are secured by the public employer's liability under company pension law. 261 Adjustment of Conditions in Life Insurance - Farewell to the Trustee Procedure - by Nadine Rheker, University Judge, Münster Overview I. Introduction 263 II. History, current regulation and Normzeck 263 III. Criticism 265 IV. VVG reform 265 V. Evaluation 266 VI. Practice of the banks 267 VII. Conclusion 268 263 I. Introduction Life insurance contracts bind the contracting parties for a long period of time. If it turns out over time that individual insurance conditions are ineffective, this can lead to serious disruptions in the equivalence ratio. Because unlike mass contracts in the goods and services business, insurance is a legal product. The content of the insurance contract is determined by the General Insurance Conditions (AVB). Life insurance - especially endowment insurance - has acquired enormous economic importance as an investment form and old-age security.1 It is therefore particularly important that these insurance contracts can be continued on a clear legal basis if a condition is no longer valid due to ineffectiveness. Since the insurer has no proper right of termination - as is the case with health insurance - and termination is rarely in the interests of the policyholder because of the disadvantages associated with it, a statutory adjustment regulation is required. II. History, current regulation and Normzeck Before deregulation2, the supervisory authority was able to replace a provision in the general insurance conditions, which was later declared invalid despite its approval, with a new clause with effect for the existing contracts.3 In the course of deregulation, the With the Third Implementation Act / EEC on the VAG for life insurance in Section 172 (2) VVG, legislators created a new legal option to supplement life insurance contracts. The regulation was intended to replace the supervisory authority's powers no longer being exercised. The background was the expectation that the abolition of the regulatory 1 See OLG Stuttgart, VersR 2001, 1141 (1143). 2 Deregulation is understood as the extensive withdrawal of the state from economic sectors. It was called for because it was assumed that state regulation would hinder competition, paralyze the dynamism of innovation and lead to product simplicity at a high premium level; it should create a stronger differentiation of insurance protection according to the individual needs of the policyholder, intensify premium competition in the insurance markets and make the range of insurance protection cheaper, see Müller, Consumer Protection in Insurance through Information of the Insured, Karlsruhe 1992, p. 3. 3 This power existed until the "Ordinance on the Application of General Insurance Conditions" was repealed by the law amending insurance regulations of December 17, 1990, see Wandt in Beckmann / Matusche-Beckmann, Insurance Law Manual § 11 Rn. 9. Cf. also Bach / Geiger, The development of case law in the application of the AGBG to AVB, VersR 1993, 659; Seybold, The exchange of individual insurance conditions in the context of the current contract, VersR 1989, 1231; Römer, For a legal regulation to adapt general insurance conditions, VersR 1994, 125, (126). An example of making use of the authorization can be found in Frey, necessity and possibility of adjusting premiums to the development of claims in the insurance industry, ZVersWiss 1972, 315, (322, 325). 264 Prior approval of the AVB the number of ineffective clauses would increase. 4 The insurance industry and the judiciary therefore demanded a remedy in the form of a legal adjustment option. 5 This was complied with for life and health insurance contracts, which have long terms and cannot be canceled by the insurer. Section 172 (2) VVG allows the insurer to close loopholes in insurance contracts that have arisen due to the ineffectiveness of a provision in the general insurance conditions if the contract cannot be continued without the amendment and an independent trustee agrees. This standardizes a statutory right to replace the ineffective clause, i.e. a unilateral right to structure.6 The consideration of the legal consequences that would arise without Section 172 (2) VVG if a provision in the AVB of a life insurance contract is ineffective lead to the regulatory purpose of the provision. 7 Because the entire private insurance law is only rudimentarily regulated in the law and the content of the insurance contract is only determined by the AVB, a loophole resulting from the ineffectiveness of an AVB can often not be closed at all or not in accordance with interests by the law intervening, Section 306 (2) BGB.8 The instrument of judicial supplementary contract interpretation, which is fundamentally considered, is also unsuitable for filling gaps in insurance contracts.9 This is because a rapid restoration of legal certainty and uniform filling of the gaps cannot be achieved in this way. In the absence of a representative action, the individual UN would have to lead individual legal disputes that take a long time and, due to the evaluation questions to be answered, can lead to different results in different courts, which then only develop legal force between parties.10 The purpose of the regulation is therefore to provide a quick, uniform and to enable clear amendments to the contract.11 The role of the trustee is intended to ensure that the interests of the policyholders are not neglected in the unilateral replacement of insurance conditions by the insurer. 4 Kollhosser in Prölss / Martin, Commentary on VVG, § 172 Rn 17. That was also the case, see Wandt, replacement of ineffective ALB in the trustee procedure according to § 172 VVG, VersR 2001, 1449. 5 See Büchner, Der Referentenentwurf einer Third Implementation Act / EEC on the VAG on the test stand, Münsteraner series, vol. 18, Karlsruhe 1993, p. 18 f (insurance industry); Römer, VersR 1994, 125 (judges). 6 So for the H.M. Kollhosser in Prölss / Martin, Commentary on the VVG, § 172 Rn. 1, 20. A.a. Bäuerle / Schünemann, Replacement of ineffective clauses in capital-forming life insurance from a constitutional and civil law perspective, VersWissStud Vol. 20, 2002, p. 112 f. 7 Cf. Wandt, VersR 2001, 1449 (1450). 8 Cf. Römer, VersR 1994, 125; Wandt, VersR 2001, 1449 (1450); Wandt in Beckmann / Matusche-Beckmann, Insurance Law Manual § 11 Rn 124. 9 Cf. Römer, VersR 1994, 125; Wandt in Beckmann / Matusche-Beckmann § 11 marginal number 125. 10 Cf. Wandt, VersR 2001, 1449 (1450 f); Kollhosser in Prölss / Martin, Commentary on VVG, § 172 Rn. 17. 11 Kollhosser in Prölss / Martin, Commentary on VVG, § 172 Rn. 19 with further references; Wandt, VersR 2001, 1449 (1450). 265 III. Criticism The trustee is not without controversy. Even the legal regulation is unclear and ambiguous.12 Neither its area of ​​application nor the individual elements of the offense are beyond doubt. Criticism of the trustee procedure was mainly expressed after insurers had made use of the procedure in life insurance after the non-transparency rulings of the BGH in 2001 and 2002 and replaced the non-transparent clauses with new clauses with the same content.13 The procedure became a unilateral and arbitrary instrument perceived by the insurer. It was also criticized that the involvement of the trustee creates the appearance of a care for the interests of the policyholders, which the trustee appointed by the insurer, who does not have a mandate from the policyholder, cannot provide.14 The trustee procedure contains an element of misleading, because the policyholder is suggested that an independent trustee has replaced the clause.15 In addition, there is a lack of trust in the independence of the trustee, who is ultimately paid for by the insurers.16 The discussion about the trustee intensified with the three rulings of the Federal Court of Justice of October 12 .2005.17 You find that the replacement of non-transparent clauses by transparent clauses with identical content is not compatible with the principles of the supplementary contract interpretation and in particular with Section 307 (1) BGB (inappropriateness check) .18 The same problem was the subject of a complaint by the Federation of Insureds en to the European Commission, which granted it for violating European law and initiated infringement proceedings. IV. VVG reform In the context of the considerations on the VVG reform, the trustee procedure has come into the focus of the reform legislator. The ideas ranged from the extension of the procedure to the general terms and conditions of all branches of insurance up to 12 Cf. nur Fricke, I hear the message, but I lack understanding - What does § 172 II VVG really mean ?, NVersZ 2000, 310; Wandt, VersR 2001, 1449 (1454); Schünemann, Statutory Authorization for Unilateral Contract Changes ?, JZ 2002, 134 (135). 13 Kirscht, The Trustee Procedure for Changing Conditions in Life Insurance, VersR 2003, 1072. 14 Römer in Römer / Langheid, Commentary on VVG, § 172 Rn. 15. 15 Schwintowski, Life Insurance - quo vadis? - Consequences from the judgments of the BGH of October 12, 2005 (Part II), DStR 2006, 473 (474). 16 Comprehensive on the independence of the trustee Buchholz, The independence of the legal trustee in life and health insurance, VersR 2005, 866 ff. 17 Niederleithinger describes it as a “debacle for the trustee system” that all trustees find a solution in these proceedings despite published concerns agreed, which the BGH subsequently "rejected with such force in principle.", Niederleithinger, On the way to a VVG reform, VersR 2006, 437 (445). 18 However, this only applies in the event of prematurely canceled contracts. In the case of life insurance contracts that are held through to the end, the supplement to the contract is effective through identical, but transparent conditions, Schwintowski, life insurance - quo vadis? - Consequences from the judgments of the BGH of October 12, 2005 (Part I), DStR 2006, 429 (430). 266 Abolition of the trustee.19 While the final report of the commission on the reform of insurance contract law20 and the ministerial draft of March 13, 2006 still continue the institution of the trustee, the trustee was deleted without replacement in the government draft. The reasoning states that the additional protection of the policyholder's interests pursued with it was not achieved through the intervention of the trustee.21 On the contrary, the confirmation of the new clause by the trustee means that the policyholder is responsible for a judicial review of the clause from the outset unsuccessful, so that it is more in his interest to forego the trustee and recommend him for judicial review.22 V. Assessment The reason for the establishment of a statutory replacement authority has not ceased. Submission to the legal consequences of Section 306 (2) of the German Civil Code (BGB) would lead to endangering and fragmentation.23 The legal possibility of a termination notice or a statutory right of termination for the UN would not solve the problem of filling the gaps in the interests of both contracting parties.24 Already Section 306 (1). 1 BGB, it can be seen that contracts should be retained as far as possible.25 According to the new regulation, the insurer is accordingly granted the right to substitute. It just waives the trustee's approval of the new clause. The policyholder can defend himself against the new clause in an individual process. He can do this under current law, but only after the trustee's approval.All that is needed is the trustee's “pre-filter function”. From the point of view of constitutional protection obligations, this function is by no means necessary.26 Your task is harmless. It is important that there is the possibility of a quick, uniform and clear amendment to the contract. You don't need a trustee to guarantee that. The trustee actually comes from the area of ​​premium adjustment, where he carries out an actuarial activity. Here, the trustee procedure is used for out-of-court accuracy checks and also lives up to this claim. The condition trustee procedure is different, which is intended to protect the interests of policyholders, but is not useful. It is therefore right to keep the trustee procedure for the premium adjustment and to abolish it for the condition adjustment. In the future, the insurer will formulate the new clause alone. It is to be hoped that he will do this in a larger 19 On the reform discussion about the trustee see Kirscht, VersR 2003, 1072, Präve, public event of the Association for the Promotion of Insurance Science, VersR 2003, 42 (44), Wandt, VersR 2001, 1449 (1461), Fricke, Quomodo pacta sunt servanda ?, VersR 2000, 257 (268). 20 The VVG Commission even proposed the inclusion of a general adjustment clause for all insurance contracts, which the draft law does not do. 21 Rationale for the government draft of December 20, 2006, p. 256. 22 Rationale for the government draft of December 20, 2006, p. 256. 23 Cf. OLG Stuttgart VersR 2001, 1141 (1143). 24 So already Römer, VersR 1994, 125 (127). 25 Römer, VersR 1994, 125 (127). 26 Schwintowski, DStR 2006, 473 (474). 267 when he submits his proposals to the trustee, because he feels it is his responsibility not to expose the clause again to the court's judgment of ineffectiveness. 27 VI. Practice of the banks A look should also be taken at the practice of the banks. Similar to insurance companies, they manage a large number of contracts, which also have to be adjusted occasionally.28 In their general terms and conditions, the banks provide for an amending clause which does not give them a unilateral right. The customer will be notified of the change to the terms and conditions in writing or, if agreed, electronically, and will be specifically informed about this and expressly advised that the change is considered approved if he does not raise an objection within six weeks. The written notification contains the bank's offer to conclude an amendment contract, which the customer can expressly or implicitly accept.29 Since the procedure has proven itself at the banks, its suitability for the insurance industry could also be considered. However, it is to be rejected that the insurers proceed in the same way as the banks by including an identical amending clause in the AVB. The procedure may be practicable for the business operations of the banks. However, interests in the economically important area of ​​life insurance are not aligned. The problem is revealed when one investigates the question: What happens if the customer objects to the change? If the change is indispensable for the continuation of the contract, he must then expect the termination of his contract. This has not only financial disadvantages. The policyholder also bears the risk of not receiving insurance cover from another insurer, e.g. because of a deterioration in health, or only insurance cover on poorer terms.30 In some cases, it is concluded that the policyholder will therefore only exercise his right of objection in a prudent manner.31 In view of the enormous importance of life insurance for old-age provision, the threat of termination of the contract in the event of an objection will more likely result in no objection being raised at all. In fact, the policyholder then has no way of opposing a new clause. The change of the insurer chosen for good reasons cannot be compared with the change of the account-keeping bank. Neither age nor state of health stand in the way of opening a new account. The termination of the bank contract has far less drastic consequences.32 On the other hand, the court is looking for the examination of the new 27 So already Römer in Römer / Langheid, Comment on VVG, § 172 Rn. 15. 28 Schwintowski, DStR 2006, 473. 29 Schwintowski, DStR 2006, 473. 30 Cf. Schwintowski DStR 2006, 473 (474). 31 So Schwintowski DStR 2006, 473 (474). 32 On the individual disadvantages of terminating the life insurance contract, see Schwintowski, DStR 2006, 476 (476), who himself states here that policyholders are practically unable to get out of the contract. Therefore, in practice there is hardly any possibility of contradicting an unpleasant clause and accepting the termination of the contract. 268 clause is entrusted, after a contract-preserving solution by way of the supplementary contract interpretation. The maintenance of the contract is usually in the interest of the policyholder.33 In this way, equality of arms between the parties is achieved, because the court takes the interests of both parties into account. In the case of a pure possibility of objection, however, there is no equality of arms.34 VII. Conclusion Farewell to the trustee is not as difficult as one might assume after the 13 years that the regulation has existed. This is due to the fact that the first significant practical cases of application can only be found in 2001 and 2002.35 The other reason is that the provision was controversial, starting with its area of ​​application through to its elements of the offense. So the trustee could not become a “confidante”. The trustee procedure has proven neither necessary nor expedient.36 The VVG reform rightly approves the conditional trustee. Cf. also Römer, VersR 1994, 125 (127), who states for life insurance that cancellation by the policyholder is therefore ruled out from the outset. 33 For details on this, Römer, VersR 1994, 125 (127). 34 But Schwintowski DStR 2006, 473 (474). 35 See Kirscht, VersR 2003, 1072. 36 On the question of usefulness see Schwintowski, DStR 2006, 473 (474 ​​f). 269 ​​Working time accounts in the company pension scheme by Susann Rochlitz *, Berlin Overview I. Introduction 271 II. Problem definition 271 III. Course of the investigation 272 IV. Economic analysis 272 V. Constitutional analysis 273 VI. Contract law analysis 273 * Research assistant at the NESTOR research institute for new old-age pension systems and legal biometrics at the Humboldt University in Berlin. 271 I. Introduction My dissertation with the working title “Working time accounts in company pension schemes” deals with the subject of the inclusion of flexible working time systems in the form of working time accounts in company pension savings and beyond. Working time accounts are flexible personnel planning instruments that companies and employees can use to achieve a win-win situation, as economic risks for the company and demographic and existential risks for the employee can be reduced without the need for extensive state funding. In the coalition agreement of 11/11/2005, the grand coalition set itself the political goal of expanding flexible working time systems, in particular to achieve age-appropriate working time arrangements and a smooth transition into retirement (time sovereignty). Another objective was to strengthen the compatibility of family and work as well as the promotion of training and further education with regard to the upcoming shortage of skilled workers. The above-mentioned dissertation project has also dedicated itself to these goals by attempting to find legal positions that facilitate the dissemination of this personnel planning instrument in practice, with a focus on the obvious advantages of working time accounts for optimizing the use of labor in the company and for the life planning of employees could promote. II. Problem definition In the first chapter labor and pension law, but also social and economic problems are shown, the solution of which the use of flexible working time systems in companies could help. Problem areas under labor law are, for example, the dependency of the employee on the employer, with the obligation to externally determined, dependent, management and instruction-bound work, which is recognized to result in a structural inferiority of the employee, which severely restricts his individual life planning. From an economic point of view, labor law and the legal relationship between employee and employer are particularly subject to constant changes and innovations in order to withstand the development process in society and the economy and to be able to adapt to new requirements. For reasons of maintaining and expanding the profitability and competitiveness of companies, for example, a more flexible use of the workforce is necessary, since human capital is a very cost-intensive economic asset in Germany and this creates a compulsion to use it as optimally as possible. The employee's high need for social protection and the increasing pressure of competition and the need to rationalize in companies are obviously in contradiction to one another. In addition, the fact that due to demographic change and increasing globalization, also and especially with a view to the steadily growing pension and pension gaps when demographic risks such as old age or illness occur, there is a need for action in the search for alternative and flexible life path models is depressing, which may be of advantage for everyone involved and burden the state financially as little as possible. The reasons for a necessary personal provision are diverse and not least due to the changing legal framework. In the meantime, it has become a state task to compensate for the lack of state aid in other ways, e.g. by promoting personal provision. III. Course of the investigation Personal provision can be carried out through flexible work and asset savings with the help of working time accounts within an employment relationship without financial waiver. Within the framework of the following three focus sections, on the one hand, the means of institutional economics are to be used to analyze what effects the use of flexible working time systems can have on resource allocation in the company. Because of this advantage and because of the opportunities for the employee to save his or her livelihood by saving time and to achieve more independent life planning, a further chapter examines whether the employee has a right to the introduction of flexible working time instruments based on fundamental rights protection obligations. In a final focal chapter, it will then be analyzed what possibilities there are to promote the spread of flexible working time systems in the area of ​​civil law, in collective and individual labor law, to the benefit of all parties involved. IV. Economic Analysis This chapter is devoted to exploring the economic advantages of using flexible working time regulations for companies and their employees. This is done by analyzing the economic efficiency more flexibly than conventional, rigid working time regulations. Human decision-making behavior is examined according to aspects of rationality. In this way you can determine how a decision would have to turn out in order to offer the decision maker the greatest possible advantage. In this way, it is possible, among other things, during contract negotiations or during the term of a contract to determine whether this leads to the greatest possible benefit for one or all of the parties involved and thus to the so-called optimal allocation of resources. However, due to uncertainties about future developments and due to uncertainties due to incomplete information, rational action is not always possible. Rationality is limited to finding the most effective options under the given circumstances. The requirements and special conditions of flexible working time regulations in the context of labor law must also be taken into account. In the analysis that follows, it should be pointed out whether and to what extent working time accounts are economically efficient for the use of human capital compared to conventional working time regulations and whether they can offer employees and employers appropriate incentives. 273 V. Constitutional analysis In a second set of topics, it is examined whether, for compelling reasons (so-called fundamental rights protection deficits), there is a need for legal regulation of employee entitlements to better provision for old age and early retirement, to better planning of family and work and / or there is in-company training and further education which, due to the win-win situation generated, is concretized on the establishment of a working time account model. These reasons can result from the particularities of the employment relationship as a strongly social, even existential contractual relationship with an inferiority of the employee compared to the structurally superior employer. The employee's individual quality of life arises from the consideration for the work performed, the remuneration. This requires that the employee aligns his consumption and saving behavior, including lifestyle and future life planning, including retirement, with the employment relationship. Protection deficits exist if existing regulations are insufficient to give the employee the existentially necessary protection from the state. If there is a gap in protection, the state is obliged to act on the basis of fundamental rights to protect. The discretion to act can then possibly be reduced to a regulation of employee entitlements to flexible working time regulations. VI. Analysis of contract law Due to the guaranteed private autonomy, the legislature and judiciary only set up framework conditions, which the contracting parties must use as a guide, otherwise they are free to make their own decisions. The private autonomy granted to them should be used by the contracting parties to make the decisions and establish the rules that are most beneficial to them. As far as everyone is aware of their advantages, no obligation or claim regulations, which were discussed in the previous chapter, should actually be necessary in order to convince the parties of the use of advantageous contractual provisions. The content of this chapter will accordingly be to find out in which ways the contracting parties, on the employer as well as on the employee side, can advance the hoped-for flexibilization of working hours in the company. Then the spread of the flexible use of human capital can be promoted to the benefit of all those involved, even without mandatory regulations. On the one hand, a regulation of flexible working time systems in the collective bargaining area is quite practicable due to the equal exchange of interests between employer and employee parties. The possibility of introducing working time account models is also being examined in the areas of company agreements and individual contracts. It must be taken into account that, due to the advantages of flexible working time instruments for all parties in the employment relationship, the initiative can conceivably be taken by either side. 275 Remarks on the theory of insurance demand by Cirsten Roppel and Tobias Schmalzhaf, University of Trier Overview I. Introduction 277 II. Hypothesis 1: With symmetrical information distribution, bad and good risk types ask for full insurance coverage. 278 III. Hypothesis 2: In the case of asymmetrical information distribution, the bad risk types ask for full insurance protection and the good risk types for partial or overinsurance protection. 279 IV. Hypothesis 3: With mixed contracts, the bad risk type always concludes full insurance contracts. 281 V. Hypothesis 4: In the case of mixed contracts, no general statement can be made about the contract choice of the good risk type. 282 Bibliography 284 277 I. Introduction The basic model1 of insurance demand considered here is based on risk-neutral insurance companies and risk-averse policyholders Vi, who differ in terms of their probability of occurrence of damage - and thus in terms of their risk types. The probability of occurrence of damage ʌl of the “good” policyholders (risk types) Vl is smaller than the probability of damage ʌh of the “bad” policyholders (risk types) Vh, so that: 0 < ʌl="">< ʌh="">< 1.="" weiterhin="" werden="" zwei="" (umwelt-)zustände="" verglichen,="" die="" sich="" darin="" unterscheiden,="" dass="" mit="" der="" wahrscheinlichkeit="" ʌi="" ein="" konstanter="" schaden="" in="" höhe="" von="" l="" und="" mit="" der="" gegenwahrscheinlichkeit="" (1="" -="" ʌi)="" kein="" schaden="" eintritt.="" auf="" dem="" versicherungsmarkt="" haben="" die="" wirtschaftssubjekte="" durch="" die="" zahlung="" einer="" aktuarisch="" fairen2="" (versicherungs-)prämie="" die="" möglichkeit,="" sich="" gegen="" die="" finanziellen="" folgen="" des="" schadenseintritts="" zu="" versichern.="" schließt="" das="" wirtschaftssubjekt="" keine="" versicherung="" ab,="" verringert="" sich="" sein="" ausgangsvermögen="" w0="" zum="" zeitpunkt="" t1="" im="" schadensfall="" zu="" w1="W0" -="" l.="" im="" nicht-schadensfall="" gilt="" zum="" zeitpunkt="" t1="" dementsprechend="" w2="W0" ,="" so="" dass="" sich="" ein="" erwartungsnutzen="" des="" vermögens="" eui(wj)="" in="" höhe="" von="" eui(wj)="ʌi*u(W1)" +="" (1="" -="" ʌi)*u(w2)="ʌi*u(W0" -="" l)="" +="" (1="" -="" ʌi)*u(w0)="" (mit="" i="l," h="" und="" j="1," 2)="" einstellt.="" vgl.="" dazu="" rothschild,="" m.="" stiglitz,="" j.="" (1976):="" equilibrium="" in="" competitive="" insurance="" markets:="" an="" essay="" on="" the="" economics="" of="" imperfect="" information,="" in:="" quarterly="" journal="" of="" economics,="" vol.="" 90,="" s.="" 629-649.="" 2="" von="" dieser="" kann="" bei="" der="" hier="" unterstellten="" atomistischen="" marktstruktur="" ausgegangen="" werden.="" für="" näheres="" zur="" prämienkalkulation="" vgl.="" stellvertretend="" kromschröder,="" b.="" (1994):="" besonderheiten="" des="" jahresabschlusses="" der="" versicherungsunternehmen,="" in:="" ballwieser,="" w.="" et="" al.="" (hrsg.):="" bilanzrecht="" und="" kapitalmarkt,="" düsseldorf,="" s.="" 772="" ff.="" iv="" p(i)="" 278="" rungsnehmer="" in="" form="" einer="" selbstbeteiligung="" oder="" eines="" selbstbehalts3)="" und="" drittens="" eine="" überversicherung="" (į=""> 1 with overcompensation for the damage incurred by the insurance company). For the insurance company under consideration, an expected profit of EG (ʌi, Vi) = iVP (I) - ʌi * I arises with each policyholder. For the business entity, the conclusion of an insurance contract results in an expected utility of EUi (Wj) = ʌi * u (W1) + (1 - ʌi) * u (W2) = ʌi * u (W0 - iVP (I) - L + I) + (1 - ʌi) * u (W0 - iVP (I)) = ʌi * u (W0 - ʌi * Į * L - L + Į * L) + (1 - ʌi) * u (W0 - ʌi * Į * L) II. Hypothesis 1: With symmetrical information distribution, bad as well as good risk types ask for full insurance coverage. Assuming a symmetrical information distribution4, the following optimization problem arises for the policyholders: EUi (Wj) Ł max ļ 0 dĮ) (WdEU ji {ļ) (Wu) (Wu 21 cc ļ W1 = W2 ļ Į = 1 Consequently, it is below the Assumption of actuarial fair premiums and symmetrical distribution of information, regardless of the risk type, optimally to ask for full insurance coverage.5 The insurance companies generate an expected profit of EG (ʌi, Vi) symmetrical = 0 3 In the case of a deductible, a percentage is determined that the insured person does independently of the amount of damage; in the case of a deductible, however, a fixed amount is negotiated between the insurance company and the insured, which the insured must pay in the event of a claim. In the following, an economic distinction between deductible and deductible is not necessary, as the S. chaden is considered constant. 4 In this context, a symmetrical distribution of information is understood to mean that the risk types of the individual policyholders are part of what is known as public information. 5 For a detailed presentation, see Strassl, W. (1988): External Effects on Insurance Markets, Tübingen, pp. 129 f. 279 III. Hypothesis 2: In the case of asymmetrical information distribution, the bad risk types ask for full insurance protection and the good risk types for partial or overinsurance protection. If the insurance companies offer full insurance contracts (Į = 1) for both risk types, assuming an asymmetrical distribution of information, the bad risk types achieve a ( Expectation) increase in benefit of ǻEUh (Wj) = u (W0 - ʌl * L) - u (W0 - ʌh * L) Since the insurance companies cannot differentiate between good and bad risk types due to the asymmetrical distribution of information, a change of insurance contract of the bad risk types can also be cannot be prevented. u (W0 - ʌh * Į * L - L + Į * L)> u (W0 - ʌl * Į * L - L + Į * L) ļ 1 ʌ ʌ Į l h !! although 1b. u (W0 - ʌh * Į * L) < u(w0="" -="" ʌl*į*l)="" ļ="" 0="" ʌ-1="" ʌ-1="" į="" l="" h="" !!="" ,="" so="" dass="" gelten="" muss:="" į=""> 1 . 2a. u (W0 - ʌh * Į * L - L + Į * L) < u(w0="" -="" ʌl*į*l="" -="" l="" +="" į="" *l)="" ļ="" l="" h="" ʌ="" ʌ1į="" aber="" 2b.="" u(w0="" -="" ʌh*į*l)=""> u (W0 - ʌl * Į * L) ļ 1 ʌ-1 ʌ-1 Į l h, so that: Į < 1="" .="" folglich="" gibt="" es="" unter="" der="" annahme="" von="" asymmetrischer="" informationsverteilung="" die="" möglichkeit="" für="" die="" versicherungsunternehmen,="" den="" guten="" risikotypen="" sowohl="" einen="" unter-="" als="" auch="" einen="" überversicherungsvertrag="" anzubieten,="" die="" beide="" gleichermaßen="" die="" oben="" aufgeführten="" (selbstselektions-)bedingungen="" erfüllen.="" für="" die="" versicherungsunternehmen="" macht="" es="" dabei="" keinen="" unterschied,="" ob="" sie="" den="" guten="" risikotypen="" den="" überversicherungsvertrag="" a="" oder="" den="" unterversicherungsvertrag="" b="" anbieten,="" da="" mit="" beiden="" vertragsarten="" ein="" erwartungsgewinn="" in="" höhe="" von="" null="" erwirtschaftet="" wird.6="" es="" muss="" jedoch="" beachtet="" werden,="" dass="" die="" wahl="" eines="" überversicherungsvertrages="" auswirkungen="" auf="" das="" verhalten="" der="" versicherungsnehmer="" haben="" kann,="" da="" bei="" abschluss="" eines="" überversicherungsvetrages="" ihre="" vermögenssituation="" im="" schadensfall="" größer="" ist="" als="" im="" nicht-="" schadensfall,="" so="" dass="" die="" versicherungsnehmer="" folglich="" einen="" anreiz="" haben="" (könnten),="" den="" schadensfall="" 6="" den="" hier="" dargestellten="" indifferenzkurven="" liegen="" unterschiedliche="" (risiko-)nutzenfunktionen="" der="" individuen="" zu="" grunde.="" wäre="" dies="" nicht="" der="" fall,="" käme="" es="" auf="" grund="" der="" „single-crossing-="" bedingung“="" lediglich="" zum="" angebot="" von="" unterversicherungsverträgen.="" 281="" bewusst="" herbeizuführen.7="" in="" der="" versicherungspraxis="" wird="" versucht,="" dieses="" moral-="" hazard-verhalten="" durch="" das="" sog.="" bereicherungsverbot8="" zu="" begrenzen.="" daher="" werden="" im="" folgenden="" nur="" noch="" voll-="" und="" unterversicherungsverträge="" betrachtet.="" iv.="" hypothese="" 3:="" bei="" mischverträgen="" schließt="" der="" schlechte="" risikotyp="" immer="" vollversicherungsverträge="" ab.="" eine="" weitere="" reaktionsmöglichkeit="" auf="" die="" asymmetrische="" informationsverteilung="" kann="" seitens="" der="" versicherungsunternehmen="" darin="" bestehen,="" dass="" diese="" sog.="" mischverträge="" anbieten.="" diese="" werden="" mit="" einer="" mischschadenswahrscheinlichkeit="" ʌm="" kalkuliert,="" die="" sich="" aus="" den="" –="" entsprechend="" dem="" anteil="" der="" guten="" und="" schlechten="" risikotypen="" am="" versichertenbestand="" –="" gewichteten="" erkrankungswahrscheinlichkeiten="" der="" einzelnen="" risikotypen="" ergibt:="" ʌm="Ȝ*ʌl" +="" (1="" -="" ȝ)*ʌh="" ,="" (mit="" ȝ="Anteil" der="" guten="" risikotypen="" am="" versichertenbestand="" und="" ʌh=""> ʌm> ʌl). The bad risk types always choose a full insurance contract, because firstly their expected value (EWVV) is both greater than their expected value without taking out an insurance (EWoV) and also greater than their expected value when concluding a partial insurance contract (EWTV), and secondly, it is the lowest when choosing a full insurance contract Risk adjusts9: EWVV = ʌh * (W0 - ʌm * L - L + L) + (1 - ʌh) * (W0 - ʌm * L) = W0 - ʌm * L EWTV = ʌh * (W0 - ʌm * Į * L - L + Į * L) + (1 - ʌh) * (W0 - ʌm * Į * L) = W0 - L * (ʌh - ʌh * Į + ʌm * Į) Da (ʌh - ʌm) * (1 - Į )> 0 and therefore ʌm < ʌh="" -="" ʌh*į="" +="" ʌm*į="" ist,="" gilt:="" ewvv=""> EWTV EWoV = ʌh * (W0 - L) + (1 - ʌh) * W0 = W0 - ʌh * L Since ʌh> ʌm is also EWVV> EWoV. If this mixed contract is only in demand by the bad risk types, the insurance companies generate negative expected profits with this contract, so that this contract cannot ultimately exist on the market over the long term. 7 The incentives on the part of policyholders to systematically influence the frequency of claims are discussed in the context of the ex ante moral hazard theory. Cf. on behalf of Nell, M. (1992): Insurance-Induced Behavioral Changes in Insurance Companies - An Analysis of Substitution, Moral Hazard and Market Effects, Hamburg, p. 108 ff. 8 The prohibition of enrichment in the area of ​​damage insurance is essentially based on Section 55 VVG. 9 This is the case because when a full insurance contract is concluded, the assets in the event of damage are the same as those in the event of non-damage. 282 V. Hypothesis 4: In the case of mixed contracts, no general statement can be made about the contract choice of the good risk type. Analogous to the argument about the insurance demand of the bad risk types, the following ranking of the expected values ​​EWoV> EWTV> results in the insurance demand of the good risk types