23 Feb COUNCIL OF STATE DECISION ON EARTHQUAKE INSURANCE
11. Apartment 2001/2549 E. , 2005/183 K .
“text of jurisprudence”
T.C.
COUNCIL OF STATE THE ELEVENTH CIRCLE
Original No. : 2001/2549
Decision No : 2005/183
Prosecutor : …
The defendant : T.C.Prime Ministry Undersecretariat of Treasury-ANKARA
The defendant Summary : The plaintiff, by Law No. 4452 Authority issued on the basis of Decree Law No. 587 compulsory earthquake insurance established by decree in accordance with the same general terms and conditions of the compulsory earthquake insurance, natural disaster insurance with the ruler of the authority of the application, the staff were contrary to the law argued that compulsory earthquake insurance and are invited to the cancellation.
Defense Summary : the legal basis of the compulsory earthquake insurance No. 4452 damages arising due to natural disasters natural disasters and measures to be taken against an empowering about the arrangements for the elimination of the compulsory earthquake insurance and litigation law issued on the basis of Decree Law No. 587 the subject of the general conditions of this decree compulsory earthquake insurance 10. it was issued on the basis of the article, the Natural Disaster Insurance Institution was also established by the Decree in the Force of Law in question, who the board of directors of the institution will consist of, the management and duties of the board are again specified in the decree, the country is located on an active seismic zone, and faced with the risk due to presence of a large part of the earthquake risk of the realization of the huge material and moral damages which are difficult to meet in case of the occurrence of the risk society to be open to the future in the face of the earthquake and to ensure a balanced distribution of the financial burden of capital markets to international capital and to distribute the necessary measures intended to be taken as such, the staff and staff of this institution in the absence of the ruler, it is claimed that the application is in compliance with the law and it is argued that the case, which lacks legal basis, should be rejected.
Examination Judge of the Council of State : …
Opinion: The lawsuit was filed with the General Conditions of Compulsory Earthquake Insurance and the cancellation of the staff list of the Natural Disaster Insurance Institution and the compulsory earthquake insurance application.
No. 4452 Authorization Act issued in accordance with the provisions of Decree Law No. 587 considering compulsory earthquake insurance, organized on the basis of this decree compulsory earthquake insurance general terms and in the implementation of the compulsory earthquake insurance is not a violation of the law.
As for the request for cancellation of the staff list of the Natural Disaster Insurance Institution; There is no staff list belonging to the institution in question. Therefore, it is not possible to make a decision about this request
For the reasons explained, it is considered that there should be no room to make a decision about the rejection of the part of the case related to the General Conditions of Compulsory Earthquake Insurance and the application of compulsory earthquake insurance, and the part related to the staff list of the Natural Disaster Insurance Institution.
Prosecutor of the Council of State : …
Opinion: The lawsuit was filed by the Undersecretariat of Treasury on 8.9.2000 days and 27.9.2000 with the request of cancellation of the Compulsory Earthquake Insurance General Conditions, which entered into force on 27.9.2000, as well as the staff list of the Natural Disaster Insurance Institution and the compulsory earthquake insurance application.
As a result of the investigation of the case, 8.9.2000 day and 24164 published in the Official Gazette numbered by the Undersecretariat of Treasury, No. 4452 compulsory earthquake insurance and natural disasters of the general conditions of measures to be taken against damages caused due to natural disasters, prepared on the basis of an empowering law about the arrangements for the elimination of compulsory earthquake insurance is arranged according to the Decree No. 587 is understood.
17 August and 12 November 1999 earthquake in the zone of our country and take place in a very large geographical area of the devastating earthquake and tsunami disaster get into the building due to injury or the loss of existing facilities and thousands of disaster victims in emergency shelter due to the timely fulfillment of the needs of natural disaster insurance zorlanilm the institution since it was established, this organization independent of the value of 20 billion Turkish liras by the building department or a very small amount of protection provided under the scheme compulsory earthquake insurance and limited in the amount of receipt, the way to get discretionary insurance for the exceeding part is opened, the mentioned institution of compulsory earthquake insurance activities,activities of insurance companies in the insurance does not interfere with a free market,and even a certain amount of insurance, in exchange for these companies is arranged through already compulsory earthquake insurance coverage in commercial and industrial facilities the facilities are kept within the system without the real risk of optional insurance, thus showing the importance it attaches to building owners by the state’s earthquake insurance earthquake insurance is optional redirected to, it is concluded that the activities of insurance companies are strengthened under free market conditions by reducing the amount of risk that insurance companies are burdened with in similar natural disaster situations. The Natural Disaster Insurance Institution has not been completely excluded from audit as claimed by the plaintiff and has been placed under the provision that it will be audited by the Undersecretariat of Treasury by the aforementioned Decree-Law. Therefore, it is not possible to use the accumulations provided to meet the mandatory earthquake risk out of purpose.
In this case, there is no illegality in the General Conditions of Compulsory Earthquake Insurance and the application of compulsory earthquake insurance which is the subject of the lawsuit
As for the part of the case related to the staff list of the Natural Disaster Insurance Institution;
4 Of the Decree Law No. 587 on the Natural Disaster Insurance Institution. established by article 5, 6, 7. and 8. the regulations related to this institution are included in the articles. However, the staff list related to this institution has not been created. Therefore, it is not possible to make a decision about this request.
For the reasons explained, it was considered that there was no room to make a decision about the rejection of the part of the case related to the General Conditions of Compulsory Earthquake Insurance and the application of Compulsory earthquake insurance, the part related to the staff list of the Natural Disaster Insurance institution.
ON BEHALF OF THE TURKISH NATION
The Eleventh Chamber of the Council of State, which made the decision, discussed the necessity of the work:
Litigation, No. 4452 Decree Law No. 587 of authority issued on the basis of the Undersecretariat of Treasury in accordance with the aforementioned conditions stipulated in the decree compulsory earthquake insurance held by the general staff, the ruler compulsory earthquake insurance and natural disaster insurance institution was opened with the cancellation of the application prompt.
1 of the Authorization Law No. 4452 on Measures to be Taken Against Natural Disasters and Arrangements to be Made for the Elimination of Damages Caused by Natural Disasters. measures to be taken against natural disasters in the article the purpose of this act, the determination of damages arising due to the elimination of these disasters, the establishment of new settlement areas, procurement, contracting, Consultancy Services and protection of cultural and natural assets, civil defense, the functioning of the establishment of the available funds and additional funds when needed, and all donations to the effective use of aid, economic issues, Editing, insurance, establishment of a system of compensation for damages as a result of natural disasters, the establishment of new municipalities in natural disaster zones and amendments to the organization laws are specified as granting authority to the Council of Ministers, exclusive of urgent and mandatory cases.
1 of the Decree Law No. 587 on Compulsory Earthquake Insurance, issued on the basis of the Authorization Law No. 4452. in the article the purpose of future earthquake disasters from occurring as a result of this decree, the building owners or the beneficial owners of the buildings would suffer financial losses due to loss or damage cover in order to determine the procedures and principles in relation to the compulsory earthquake insurance is explained that the same Decree 4. in article 10, entitled “Insurance coverage tariffs and instructions, commissions”, in which the Natural Disaster Insurance Institution, which has a public legal entity, was established by the Ministry to provide insurance and perform other tasks assigned to it by this Decree-Law. paid paid premiums, general conditions, tariffs and instructions, procedures and principles of payment of premiums, commissions to be paid to the institution administrator and authorized insurance companies will be determined by the Ministry and published in the Official Gazette, the area of the building, construction class and quality, geological characteristics of the land on which the building is located, earthquake risk and similar factors will be taken into account in determining insurance premiums.
By the plaintiff, illegitimate and unilateral application of the compulsory earthquake insurance, where all the buildings are not covered by insurance, insurance for buildings with up to twenty billion pounds of the value is made and guarantee given for items inside the buildings, not of the premium received in advance, however, receives collateral from customers on the demand of private insurance and the insurance premium to be charged a portion of the rest in cash in installments, they have enough money or compulsory earthquake insurance money will be split between those who see the damage existing in the pool stated that, however, not all separate payment obligation exists every where private insurance companies damage compulsory earthquake insurance policy in excess of twenty billion pounds for items with guaranteed private insurance companies insurance part built stipulated compulsory earthquake insurance for insurance agents to be done given in exchange for 12.5% of the tax due is not sufficient to commission and general expenses, therefore many won’t compulsory earthquake insurance policy for private insurance agency, compulsory earthquake insurance made mandatory by the decree of the process in the Land Registry Office, natural disaster insurance, because insurance companies that does not have the authority of the state, removed from the control of this institution of the court of auditors, the collected money will be used to cover the risk for the purpose of this earthquake shows that it is not compulsory earthquake insurance against the practice have argued that the general conditions were not compulsory earthquake insurance and natural disaster insurance institution of the application with the ruler and staff are invited to the cancellation of the compulsory earthquake insurance.
There is no doubt that great damages will occur in future earthquakes due to the fact that our country, which is located on an active earthquake belt, is facing an earthquake risk.Private insurance companies may avoid providing coverage in areas with high earthquake risk due to the fact that they lack the financial strength to carry out a comprehensive nationwide program as of their current situation, the awareness of insurance in society is not sufficiently established, only those who live in areas with a high earthquake risk get insurance, considering that although there is discretionary earthquake insurance, very few of the total houses are insured, it becomes necessary to go to a new structure in the form of a publicly supported or direct public institution in order to meet the financing needs arising from major disasters and to do this by ensuring the participation of a wide segment of society.
With the Decree Law No. 587 on Compulsory Earthquake Insurance, issued on the basis of the Authorization Law No. 4452 in order to provide the financing necessary to cover this risk, the damages that will be caused directly or indirectly by the earthquake will be 10. the Natural Disaster Insurance Institution has been established in order to make compulsory earthquake insurance, which covers up to the amount determined in accordance with the article, and to fulfill the task given by this Decree-Law.
10 Of the General Conditions of Compulsory Earthquake Insurance, the cancellation of which is requested, the aforementioned Decree-Law. in accordance with the article, the Prime Ministry has been regulated by the Undersecretariat of Treasury and published in the Official Gazette No. 24164 on the day of 8.9.2000 and it has been taken under the provision that it will enter into force on the date of 27.9.2000.
Due to the examination of the General Conditions of Compulsory Earthquake Insurance, it was concluded that it is in compliance with the Decree Law No. 587, public interest and service requirements, there was no violation of the law in this regulation
As for the part of the case regarding the request for cancellation of the staff list of the Natural Disaster Insurance Institution;
Natural Disaster Insurance Institution 4 of the Decree Law No. 587. it is established by Article 6 of the same Decree. in the article, it is stated that the institution will be managed by the Board of Directors, its technical works will be assigned by the undersecretariat to an insurance or reinsurance company with a contract to carry out in the capacity of an Institution administrator, 7. in the article, it is explained who the Board members will consist of, the manner of appointment, the duration of their duties and according to which their remuneration will be paid, 8. the duties of the Board are also listed in the article, but the staff list has not been arranged. By the defendant administration 6. in accordance with article T of the National Reinsurance with themselves.A.Sh. it is stated that with the contract made between the two, it was decided that the technical works of the Institution would be performed by the company in question. Dec. For this reason, it is not possible to examine the request for cancellation of the staff list of the Institution in Question, which does not have a staff and staff list.
As for the part of the case related to the implementation of compulsory earthquake insurance;
Due to the fact that compulsory earthquake insurance, which requires public intervention in earthquake insurance and was established for the reasons described above, has a unique structure, it is natural that Insurance has a different legislation from other insurance companies that operate in accordance with the Regulatory Code.
Condominium within the scope of the compulsory earthquake insurance law numbered 634 independent sections, subject to private ownership on immovable property is registered in the land registry as a dwelling place built, the buildings, the buildings located in the commercial space, office, and used for similar purposes due to natural disasters, with independent sections of the state, commissioned by or given credit have been converted to dwellings, buildings with public institutions and buildings of the village built in the areas from the scope of the compulsory earthquake insurance the goods within the structures have been excluded from insurance coverage. 2 Of the Compulsory Earthquake Insurance Tariff and Instruction issued on the basis of the aforementioned Decree-Law and published in the Official Gazette dated 8.9.2000 and numbered 24164 and entered into force on 27.9.2000. in the article, the maximum amount of coverage that can be given for a dwelling within the scope of compulsory earthquake insurance is determined as 20 billion liras for all building styles. 6., 7. and 8. natural disaster insurance institution from individuals and organizations outside the provisions of the provisions in the compulsory earthquake insurance they can’t do, but this insurance, natural disaster insurance institution authorized on behalf of insurance companies and their agents can be done by earthquake insurance premium in advance, the amounts charged to them and the amount of premium will be 12.5% of the commission shall be paid at a rate of, that are made compulsory earthquake insurance provided by insurance companies for this part on the amount of collateral that can be made discretionary earthquake insurance is understood. These regulations are subject to compulsory earthquake insurance and structures that are to be covered by keeping excess of this amount limited to the amount excluded from compulsory earthquake insurance earthquake insurance policies with the part of structures was left to private insurance companies, the insurance companies they again cut competent compulsory earthquake insurance policies in exchange for a certain amount of the insurance premium are anticipated to be paid a commission at the rate of. The defendant of the administration of our apartment E:2001/2549 according to the figures mentioned in No. file, 27.4.2001 compulsory earthquake insurance policy from one of the units until the date 1.811.023 1.470.109 cut is cut by private insurance companies because it is understood that the amount of commission paid to private insurance companies canceling compulsory earthquake insurance policy is sufficient reached the conclusion that in this case, about earthquake insurance private insurance companies totally disabled, because it can not be.
9 Of Decree No. 587 for the successful implementation of compulsory earthquake insurance. with the article, compulsory insurance has been imposed for the buildings and independent sections covered by the decree, 12. by the regulation in the article, it is also intended that public institutions and organizations, if the buildings covered by this insurance do not have mandatory earthquake insurance and the premium is not paid, they cannot take any actions, including land registration procedures, related to these structures, by stipulating that building owners or usufruct holders should take out this insurance. 17 Of the same decree. in the article, the insured damage higher-than-expected to be the resources of the institution and, if it exceeds the sum of the amount of the institution’s resources and protection of the resulting losses, the ratio of total compensation to be paid under the compulsory insurance provisions that will be financed in the institution’s exceptional in the way of resources is insufficient in the case of damage to the insured to ensure a balanced distribution of the assets of the institution were transformed. Moreover, reinsurance agreements are made by the Natural Disaster Insurance Institution with international reinsurance companies and risks that are not financially possible to be borne alone are insured and covered.
Compulsory earthquake insurance compulsory earthquake insurance and natural disaster insurance institution established with the Decree-Law of the court of auditors to fulfill the given tasks removed from the control, although the institution’s annual accounts, transactions and expenditures supervised by the Treasury, the board of directors to govern the institution and the institution of the duties of the resources used by the decree in question was determined by where it will be counted. For this reason, since it is not possible to use the money collected to cover the earthquake risk out of purpose in compulsory earthquake insurance, there was no legal damage in the claims put forward by the plaintiff.
In this case, the power of sovereignty by the state, based on earthquake risk and the participation of this community in order to ensure the meeting of established, non-profit and earthquakes that may occur after the state law that eliminates 7269 with regard to the obligations arising from the compulsory earthquake insurance issued Decree No. 587 Authorization Act based on compulsory earthquake insurance in accordance with general conditions of this insurance for the benefit of the public in the implementation of the service requirements and is not a violation of the law.
It was decided unanimously on 14.1.2005 to dismiss the case for the reasons explained and to leave the trial expenses on the plaintiff.
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