Vad kan försäkras? - En utredning av det försäkringsrättsliga begreppet lagligt intresse, med fokus på administrativa sanktionsavgifter

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: According to the Swedish Insurance Contracts Act (FAL) 6 chapter 1 §, only legal interests can be insured. By using a legal dogmatic method, this essay seeks to examine the significance of the term legal interest. This paper is especially focused on investigating how administrative fines, pursuant to the new EU General Data Protection Regulation (GDPR), should be treated in Swedish insurance law, and the possibility to have an insurance against the risk of having such fines imposed. The current regulation in FAL builds on similar provisions in the antecedent Insurance Contracts Act (GFAL). Neither GFAL, though, nor the preparatory documents for FAL or GFAL clarify what the term legal interest entails. Nowadays, liability insurances are a relatively uncontroversial phenomenon, despite the fact that they cover a cost incurred from unlawful acts, i.e. tort. Other kinds of costs that are meant to be encumbering, like discrimination compensation, are also possible to insure. It is clear that tort constitutes a legal interest whereas fines do not. Any clear link, however, between the provision about legal interest and criminal law does not exist. Some cases show that interests with certain criminal ties are not necessarily considered to be illegal. Statements in FAL's preparatory documents and in the legal scholarship, however, support the idea that the provision in FAL embodies the general principle that contracts in breach of law or good morale are null and void (pactum turpe). What types of contract that are affected by the immoral contracts principle is not totally clear. This is mainly due to the difficulties in conceptualizing good practice and good morale. The precedence on the topic is limited and what good practice is, probably differs depending on who is asked. Swedish law appears to have a relatively pragmatic approach to contracts containing dubious clauses and these contracts are not immediately rejected by the courts. Due to the ambiguous meaning of good practice and good morale, the principle of pactum turpe provides little practical guidance on determining legal and insurable interests in line with FAL. Sanction fees exist in different bodies of Swedish law and do not, just like the GDPR's administrative fees, constitute a criminal sanction. They are, nevertheless, a sanction on inappropriate behavior. In the case of the GDPR, breaches of the regulations on the processing of personal data can warrant high administrative fines. Intentional or careless acting is not required, due to the strict liability formulation. Furthermore, there are several other circumstances that are to be considered by the supervisory authority when deciding on the size of the administrative fine. This essay concludes that the legal position on the term legal interest to a large extent is unclear and that an elucidation in terms of its content is desirable. Insurance against administrative fines under some circumstances, however, is probably acceptable under current applicable law.

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