Engineering supervision and professional liability insurance are the two main research objects of this paper.
The basis of this paper is engineering risk theory. From a subjective point of view, risk refers to the loss of uncertainty; In particular, the risks that an engineering project may suffer in various stages of design, construction and handover operation are called project risks.
Responsibility is also a kind of risk, which is stipulated by the legal person. The law stipulates various responsibilities. Liability is the legal consequence caused by the violation of legal obligations or the infringement of the rights of others by natural persons or legal persons.
Units and individuals engaged in various professional and technical work may cause economic losses or personal injuries to clients or others due to mistakes or mistakes in their work, or due to mistakes or negligence of their employees or partners. This kind of risk is called occupational risk. Professional responsibility is the liability for damages that professionals should bear for occupational risks.
Insurance refers to an economic system that collects similar risks and shares losses. Insurance is by far the most common and effective means of risk management. Because the project may encounter possible risks, in order to eliminate or compensate the losses caused by risks, engineering insurance must be carried out.
According to the objects of insurance accidents, insurance can be divided into four categories: property insurance, personal insurance, liability insurance and guarantee insurance. Among them, liability insurance is an insurance that takes the civil liability for damages that the insured should bear according to law or the contractual liability that has been specially agreed upon as the underwriting object. Liability insurance can be divided into four categories: public liability insurance, product liability insurance, professional liability and professional liability insurance, and employer liability insurance.
Occupational liability insurance refers to the insurance that covers the economic compensation liability of various professional and technical personnel for personal injury or property loss caused by negligence or negligence in their work. Occupational liability insurance started from doctors' occupational liability insurance in European and American insurance markets during the period of 1890- 1900, which belongs to a kind of "more contemporary insurance". In 1970s, professional liability insurance became popular in western countries, and became more and more mature and perfect. The types of insurance covered have expanded from a few types of insurance such as medical liability insurance to different types of occupational liability insurance for at least 80 professionals such as designers, engineers, doctors, lawyers and accountants and other service providers.
Overseas, according to the scope of insurance liability, professional liability insurance is divided into two categories: the insured's fault liability insurance and the insured's fault liability insurance. The insurance objects of the former include surgeons, dentists, nurses, lawyers and other occupations; The latter's insurance targets include accountants, architects and engineers, insurance agents and other occupations. Professional liability insurance for consulting engineers belongs to professional liability insurance for architects and engineers.
In the international insurance market, the development of liability insurance in the United States is the most typical. 1948, the national institute of engineers insured the professional liability insurance for engineers for the first time. By 1956, Lloyd'sofLondon in Britain had almost all the existing liability insurance business in the United States, but the professional liability insurance for engineers was limited to three recognized engineer organizations. 1957, theContinentalCasualtyCompany of the United States began to provide liability insurance to the Federal Institute of Engineers and the American Institute of Architects. Since the 1960s, the engineering losses have increased steadily, so the insurance premium has also increased accordingly. In the 1980s, due to huge engineering losses, the professional liability insurance premiums of American insurance companies began to increase at an alarming rate, resulting in the so-called "insurance crisis". 1984, the state court accepted more than 660,000 civil engineering lawsuits1984; The federal court accepted more than150,000 cases. As for the professional responsibility of engineers, 44 out of every 65,438+000 companies filed claims, and the amount claimed increased from an average of $40,000 in 65,438+0,978 to $65,438+0,480.
2. China urgently needs to carry out supervision professional liability insurance.
There are two basic countermeasures to deal with risks: one is to keep risks and control them, and the other is to transfer risks. In engineering projects, risks are mainly transferred through non-insurance contract transfer, engineering project insurance or engineering project guarantee. Specifically, the owner will transfer some project risks to other parties by signing service contracts with contractors, designers, supervisors and other parties. In addition, the owner and contractor can use the insurance or guarantee of the project to transfer part of the project risk to the insurance company or guarantee institution.
The responsibility of the supervisor is clearly defined between the owner and the supervision unit through the construction supervision entrustment contract. The supervision unit shall compensate the owner for the economic losses caused by professional negligence. In the case that the supervision unit can't bear the above compensation liability by itself, it can take out professional liability insurance and transfer part or all of its professional liability risk to the insurance company, which will guarantee the compensation ability of the supervision unit.
The perfection and maturity of professional liability insurance in developed countries is only a matter of nearly thirty or forty years. With the continuous development of China's socialist economic system and large-scale construction, the implementation of supervision professional liability insurance in China has been put on the agenda. June 5438 +2000 10, Shanghai Tianan Insurance Company launched the first domestic construction project supervision liability insurance, which was approved by China Insurance Regulatory Commission.
In the field of engineering construction, under the planned economy system in the past, all parties involved in engineering construction were mainly part of the state-owned economy, which inevitably led to unreasonable distribution of economic responsibilities. The current situation in China is that the professional responsibility of supervisors does not match the professional risk (see figure 1). 1995 promulgated the Standard Conditions of Engineering Construction Supervision Contract, which stipulated the responsibility of the supervision unit: "If the economic losses are caused by the negligence of the supervision unit, it shall compensate the owner. The total accumulated compensation shall not exceed the total supervision fee. " According to 1992 "Calculation Method of Engineering Supervision Fee" issued by the state, the remuneration of supervision units in China is far below the international standard. Therefore, in the event of an engineering accident, the supervision unit only bears a small part of the economic responsibility for the engineering losses in the project, even if the losses are caused by the obvious dereliction of duty of the supervision unit.
Under the market economy system, with the diversification of economic interests, disputes involving the economic responsibility of supervision units are gradually increasing, and more and more owners require supervision units to bear full compensation responsibility for the losses caused by their professional negligence. In this case, supervision professional liability insurance is imperative as a means to clarify the economic responsibility between the owner and the supervision unit and transfer the professional risk of the supervision unit to the insurance company reasonably.
3. Necessary conditions for carrying out professional liability insurance for engineering supervision in China
3. 1. Revision of relevant laws and regulations
At present, in addition to the basic principles of enterprise damage compensation in the general principles of civil law, the Regulations on Engineering Construction Supervision also makes specific provisions on the economic responsibility, qualification evaluation and administrative punishment for negligence of supervision units. Article 48 of the General Principles of the Civil Law stipulates the economic responsibility of an enterprise as a legal person: "An enterprise as a legal person owned by the whole people shall bear civil liability with the property authorized by the state to operate and manage. A collectively-owned enterprise as a legal person shall bear civil liability with the property owned by the enterprise. Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures and foreign-capital enterprises as legal persons shall bear civil liability with the property owned by the enterprises, except as otherwise provided by law. " According to the General Principles of Civil Law, unless otherwise stipulated by law, the economic responsibility of the supervision unit is limited to all the property of the supervision unit. Through the previous discussion, once a major engineering accident is caused by the negligence of the supervision unit, it is impossible to compensate by relying on its own property. Therefore, in this case, it is necessary for the corresponding laws and regulations to make separate provisions for the supervision unit to transfer part of its economic responsibilities in an appropriate way.
It is not enough to stipulate only the economic responsibility (including professional responsibility) of the supervision unit. If there is no administrative regulation on the liability insurance of the supervision unit, the construction unit can choose the supervision unit without professional liability insurance in order to save the insurance cost. Although this is a problem for both parties to the contract, once the supervision unit causes an engineering accident, it will inevitably cause the following problems:
The delay in resolving the liability dispute between the construction unit and the supervision unit will seriously affect the economic activities of the construction unit and the supervision unit and disrupt the market order.
Because most large and medium-sized construction projects are still invested by the state, if the supervision unit is unable to compensate for its own responsibilities, it will cause serious losses to the state property.
In this case, the more feasible way is to give full play to the government's supervision function and use the power of governments at all levels to examine and approve the qualification grade of supervision units. Article 17 of the Regulations on Engineering Construction Supervision clearly stipulates that "the supervision unit shall implement the qualification examination and approval system." At present, the qualification level of supervision units in China mainly depends on the supervision qualification of unit leaders and technical leaders, the number and qualification of engineering and management personnel, registered capital and historical performance. By revising the Regulations on Engineering Construction Supervision, whether to carry out supervision professional liability insurance can be regarded as one of the evaluation criteria of supervision qualification, so that supervision units without professional liability insurance can not participate in major projects.
At the same time, it is necessary for the supervision unit to take professional responsibility for its professional negligence and impose administrative penalties on it, which is also very necessary to improve the quality of supervision and rectify the supervision market. Chapter 7 "Punishment" of the Regulations on Engineering Construction has detailed provisions on this. At present, for the professional fault of the supervision unit, that is, the supervision unit "caused a major accident due to work mistakes", the relevant departments can give it a warning and criticism, suspend business for rectification, reduce its qualification, revoke its qualification certificate or impose an administrative fine. In order to implement supervision professional liability insurance, it is necessary to distinguish professional negligence and non-professional negligence of supervision units in the Penalty, and punish the behavior of supervision units that fail to insure or deliberately reduce the insured amount.
3.2. Modification of construction supervision entrustment contract
According to the provisions of the Engineering Construction Supervision Contract, "if economic losses are caused by the negligence of the supervision unit, the owner shall be compensated. The total accumulated compensation shall not exceed the total supervision fee. " Although there is no clear stipulation in the contract, the part of the total cost that exceeds the supervision fee is actually borne by the owner. This is obviously unreasonable. Therefore, it is necessary to refer to international practice, modify the project supervision contract in China, and further clarify the respective responsibilities of the supervision unit and the owner. This is also one of the necessary conditions for implementing supervision professional liability insurance.
IGRA 1980PM is the "international model and general rules of project management agreement between owner and consulting engineer" published by FIDIC, and it is an international general contract between owner and project management consulting unit. It is worth noting that: first, the client (that is, the person who entrusts the supervision engineer to engage in project management) is likely to be the owner, but under the condition of high division of labor in society, it may not be the owner. Secondly, strictly speaking, the international project management system and China's construction supervision system have different meanings. However, as an international practice, the responsibilities of IGRA 1980PM to the project manager are of great significance for us to clarify the responsibilities of the supervision engineer.
Section 2 4 of IGRA 1980PM clearly defines the responsibilities of the project manager. It clearly clarified the following issues:
(1) What problems should the project manager take economic responsibility for?
Claims, losses, expenses or expenses caused by the project manager's obvious dereliction of duty or criminal acts (241);
The project manager cites any clauses that violate the law or infringe the rights and interests of third parties, such as patent rights and copyrights (clause 243);
Losses caused by the decision-making and guidance of the project manager in the service process (Article 2 4 5).
(2) What are the problems that the project manager does not assume economic responsibility?
The project manager is not responsible for projects that are not designed by him or are not within his responsibilities (Article 245);
The project manager is not responsible for the losses caused by any actions of the owner, contractor and supplier that are not included in his service scope or the instructions and written opinions of the project manager (Articles 2, 4 and 6).
(3) the economic responsibility of the project manager The project manager does not want to compensate all his economic responsibilities. According to Article 2 4 1 "Financial Responsibility of Project Manager", the Owner shall make the Project Manager avoid any direct or indirect claims, losses, expenses or expenses related to the service, in addition to all the responsibilities of the Project Manager (specified in IGRA 1980PM Part II); The part beyond the project manager's own burden shall be compensated or protected from damage. However, such compensation and protection by the Employer does not apply to claims, losses, expenses or expenses caused by the project manager's obvious dereliction of duty or criminal acts. Because the employer does not compensate and guarantee the professional responsibility of the project manager, when the project manager cannot bear this part of the responsibility by himself, he should carry out professional liability insurance in advance.
(4) Insurance
According to Article 2. 4. 4 "Equipment insurance for third parties and owners", the project manager shall arrange and maintain third-party liability insurance and special equipment insurance at the owner's expense, "but the project manager shall make every effort to purchase reasonable occupational liability insurance at his own expense."
3.3. Formulation of Standard Contract for Professional Liability Insurance of Project Supervision
International standard contracts for professional liability insurance usually stipulate the scope of coverage, liability exemption and claims, contract changes and other matters in the first part, and formulate specific compensation limits, deductibles, insurance rates and insurance periods in the second part. For the formulation of coverage and liability exemption, please refer to the professional liability insurance contract for engineers provided by FirstState Management Group Company (American Online Liability Insurance Company). The standard insurance contract of accountant liability insurance used by Taiwan Province Product Insurance Co., Ltd. provides a detailed method for determining the rate, which can be used as a reference for supervising the determination of the rate of occupational insurance.
4. Conclusions, recommendations and discussion
As a necessary condition for the implementation of engineering supervision liability insurance, the relevant clauses in General Principles of Civil Law and Engineering Supervision Contract should be revised to provide a legal basis for the supervision unit to fully compensate its professional liability. The Regulations on Engineering Supervision should be revised to strengthen the management of professional liability insurance of supervision units administratively. We should refer to international practice, further clarify the economic responsibility between the owner and the supervision unit in the project supervision contract, and formulate a standard contract for project supervision liability insurance. According to the previous research, there are the following suggestions for the specific implementation of engineering supervision liability insurance in China:
1. Make a comprehensive study on the characteristics of supervision industry. Understand the general risks and special risks of supervision units, and find out the rules of their occupational risks. Gradually formulate and improve the code of conduct for internal control of occupational risks in supervision units.
2. Further understand the relevant theories and specific practices of foreign engineers' professional liability insurance and other domestic industries' professional liability insurance, and design a project supervision liability insurance system that can adapt to the national conditions and conform to international practices.
3. Look for areas with earlier professional liability insurance, more developed insurance industry and higher degree of internationalization of engineering projects as pilot projects of supervision professional liability insurance, accumulate experience and lessons, and gradually promote them throughout the country.
4. Allow foreign insurance companies to carry out professional liability insurance, including regulatory liability insurance, in China within a certain scope, actively use the research results of foreign companies on the China market, and learn from the specific steps of implementing professional liability insurance.
5. Supervision units and insurance companies should strengthen cooperation and explore the contract details such as insurance limits, insurance rates and deductibles suitable for the national conditions.
6. After China's entry into WTO, strengthen the research on the internationalization of China's professional liability insurance and actively integrate with international practices, including how China supervision companies can obtain professional liability insurance abroad and how China insurance companies can provide professional insurance to foreign consulting companies.
From a microscopic point of view, the implementation of professional insurance for engineering supervision can benefit the construction industry in many ways, thus bringing prosperity to the whole industry. For the owner, supervision occupational insurance is helpful to make up for the losses caused by engineering accidents in time and ensure the smooth progress of the project; For supervision units, supervision professional liability insurance can not only guarantee the ability to pay compensation, but also control the professional risks more effectively under the supervision and support of insurance companies, thus improving their own survival and competitiveness; For insurance companies, supervision professional liability insurance, as a relatively new type of insurance related to engineering construction, has great market potential.
From a macro point of view, the implementation of professional insurance for project supervision is inevitable for the development of the socialist market economic system, which helps to establish the principle of equal rights and obligations in economic exchanges in the field of engineering construction, rationally allocate the project risks between the construction unit and the supervision unit, and make the responsibilities undertaken by the supervision unit consistent with the risks faced. The implementation of professional liability insurance for engineering supervision is helpful to establish a healthy operation mechanism of the construction market and further promote the development of the construction industry.