Kredi sigortaları ve Türkiye'deki durum
Başlık çevirisi mevcut değil.
- Tez No: 71799
- Danışmanlar: PROF. DR. MÜJDAT ŞAKAR
- Tez Türü: Yüksek Lisans
- Konular: Bankacılık, Sigortacılık, Banking, Insurance
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 1998
- Dil: Türkçe
- Üniversite: Marmara Üniversitesi
- Enstitü: Bankacılık ve Sigortacılık Enstitüsü
- Ana Bilim Dalı: Sigortacılık Ana Bilim Dalı
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 90
Özet
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Özet (Çeviri)
SUMMARY Credit is a factor playing a significant role in development of companies and state economies. Credit institutions have gradually assumed an international characteristics in a globalising world. The credit needs of companies, even countries, record an increase in direct proportion with the economic developments in the world. As the credit demands increase, credit institutions feel themselves forced to cover (insure) themselves against the risk of non-repayment of the credits, which may happen particularly due to economic and political reasons. At this point we are faced with the concept of credit insurance. Regardless of the fact that this kind of insurance is not currently in application in Turkey, though it is much in use in USA and European countries, the purpose of this paper is to study the credit insurance in terms of legal and insurance aspects, its guarantee function, and to reveal the positive impact on economic development of companies and nations. Concept of Credit Insurance There are different approaches in the doctrine with respect to the definition of credit insurance. Credit insurance is an insurance contract executed in favour of creditor, who may be a real person or body corporate, against the risk of non- repayment of the credit when due or ever non-repayment, such credit having been extended by the creditor to anotherreal person or body corporate. Function of Credit Insurance Lender or seller covering its credit with credit insurance can pursue and continue its commercial activities in peace and comfort now. Besides, lender covering the repayment of the credit it has extended is capable of entering into more commercial activities and foreseeing the outcomes of such commercial relations except extraordinary situations. Types of Credit Insurance 1. Types of credit insurance in terms of application fields We can divide credit insurance into four types according to application fields: a) Aval: Where a drawn policy which has not been paid when due, is paid by the insurer. b) Suretyship: If any credit extended to a certain person has not been paid when due, the creditor reverts to the insurer. c) Bankruptcy credit insurance: enabling the creditor to pursue the bankruptcy actions of the borrower and to collect its credit without the necessity of waiting for the closing of bankruptcy transactions. d) Insolvency credit insurance: If the borrower is incapable of paying its debts due to insolvency, or bankruptcy or another reason and when insolvency proceedings are closed and even the collection of a portion of the credit is out ofquestion, the insurer is liable to make compensation. 1. Distinction between Cash Credit insurance and Commodity Credit Insurance: a) Cash credit insurance is a type of insurance lender's receivable is taken under guarantee if credits extended by lender in cash have not been paid by the borrower in the form and on date set forth in credit contract. b) Commodity credit insurance: The subject of the commodity credit insurance is to indemnify the losses the businesses making business within the country through extending credits suffer because these credits have not been paid by the borrowers when due. 2. Import Credit Insurance: Import Credit Insurance is divided into the following types: a) Import Credit Insurance: Under import insurance, the advance payment made by the importer in cash to the exporter in the foreign country from which these goods or services have been purchased is taken under guarantee. b) Export Credit Insurance: If the customers in the importing country becomes insolvent or incapable of paying their debts or if they are capable and willing to effect the payment, but unable to do so due to certain political relations, the resulting credit losses suffered by the exporters are taken under security.3. Aval Insurance In this type of insurance the insurer undertakes and guarantees that the policy drawn to a third party shall be paid when due, and if the policy has not been paid when due and, thus, becomes subject to a letter of protest, the expenses and value of the policy shall be paid to the bearer. In practice, aval insurance is generally effected between insurance companies and large banks obtaining credit through drawing of policies to the name of customers. Policy Types in Credit Insurance Singular Insurance Policy a) Specific credit insurance policy (a.k.a individual credit insurance policy): If an individual export transaction is made under a specific (individual) credit insurance policy, the credit of the exporter, arising from the exported goods/ services to the specific customer of the exporter at a certain amount is taken under guarantee. b) Lump sum credit insurance covers not only credits of the insured arising from an individual export, but whole receivable of the exporter arising from exports. Factors Affecting Calculation of Credit Insurance Premium There are three fundamental factors having an effect on the fixation of the premium valid for all insurance types. Whilethe insurer calculates the premium, it will take the risk realisation probability into account before anything else, that is to say, if the risk realisation possibility is high then the probability that the insurer shall pay an indemnification is also high. Depending on the degree of this possibility, premiums are fixed high. In other words risk realisation possibility and amount of premiums are in direct proportion with each other. Secondly, insurance price has an effect on the fixation of premium. This is very obvious that no further explanation is necessary. The third point is the term of insurance contract, that is to say, the relation between the term of the insurance (whether it is short or long) and the risk realisation possibility cause the premium to be low or high. Beside the foregoing factors, characteristics of the sector in which the insured makes business, and his economic conjuncture, geographical distribution of the customers in the insurer's portfolio, the indemnification sum underwritten by the insurer are the other factors effecting the calculation of the premium. Definition of Risk in Credit Insurance What is insured in credit insurance is in fact unpaid debt. Besides, insurance can be effected for a debt not paid when due. No difficulty arises in discovery of whether the debt has been paid or not when due, however, the claim that the debt has never been paid requires legal proceedings.6 Participation of the Insured In Loss In practice two methods are valid for the insured to participate in the losses, when he has to do so: 1. Quota Insurance System In this system the insured directly participates in the loss, to the extent calculated on a basis of fixed percentage of the loss incurred when the risk has been realised. This ratio may range between 20-25%. 2. Risk Management The purpose of this system is to eliminate risks which are small scaled but with a high risk realisation probability, thus to reduce the premium together with insurance risks and to cover the usual, unavoidable losses specific to relevant commercial sector. Distinctions Between Credit Insurance and Surety Bond While surety bond is a contract without consideration and that enforces any liability only on one side, credit insurance bears the characteristic of a contract with consideration imposing obligation on both parties to the contract. Surety bond is a secondary contract and its existence depends on the existence of the main debt. Invalidity of the main debt also invalidates the surety bond. Credit insurance contract itself, is however, a principal obligation independent of the main debt. In joint and several suretyship, joint and several surety or joint and several debtors may be recoursed due tothe titles they have without recoursing to the principal debtor or without negotiating the pledged. In credit insurance, the insurance covers only the risks against the creditor, likely to arise from the insolvency of the debtor. b) Situation in Turkish Jurisdiction Insurance Services Provided to Exporter in Turkey a) Mutual insurance of export credits Effecting of fire, transportation and accident insurance for the investment goods during the period consisting of the establishment stage and manufacturing of the commodities to be exported is the initial service provided to exporters. Until the completion of export-guaranteed investments, various insurance, including, particularly, fire insurance and additional guarantee on fire are required. This requirement is necessary for both the continuity of the investment and guaranteeing the export. Otherwise an unexpected disaster or act of God shall cause both the exporter and the export to suffer. In this type of insurance investments guaranteeing export and which are realised mostly through importation from abroad should only be insured in Turkish liras, however, it is not possible to compensate any loss incurring during the completion of this investment by an insurance effected in Turkish liras. Therefore the necessary regulations must be carried out in order to issue policy in foreign currency.b) Insurance of Assets Pledged Against Export Credit Another service provided to exporters with respect to insurance is that assets pledged or mortgaged during the borrowing of export credit are insured against fire damages. Any pledge or mortgage submitted to the bank during the borrowing are insured against the fire and the party which will benefit from the insurance is the bank. Thus the bank is able to cover, through insurance, any loss likely to arise until the delivery of the good to the customer. In this manner exporter avoids the risk of unfulfilling its commitments towards the lending institution because of the losses on its goods likely to incur prior to the shipment of exported goods. On the other hand, all services and transactions fulfilled by insurance companies concerning all kinds of export credits under export undertaking are exempted from excise taxes as is the case with insurances effected on export-guaranteed investment credits. c) Insurance for Export Transportation While issuing this type of insurance the most important factor taken into account is the form of trade agreements setting forth from which expenses each of seller and buyer will be responsible. a) FOB (Free On Board): This type of agreement requires that the seller will be responsible from paying the expenses incurring for a merchandise, on whose price the partiescame to an agreement, until the said merchandise is loaded on board the ship and that the ownership and risks of such merchandise will be transferred to the buyer as soon as the merchandise is actually on board the ship. Seller undertakes to pay certain expenses requiring to be made until the merchandise is loaded on board the ship. Expenses for bill of lading, freight cost and all other expenses incurring after the insurance and ownership is transferred to the buyer shall be borne by the buyer. In this case, the obligation for the exporter to have the merchandise insured exists as long as the goods are within state borders and until the loading is done. Later on all the obligation lies with the buyer. b) Cost and Freight: In this type of sales agreement all expenses incurring until the delivery of the merchandise, on whose price the parties came to an agreement, to the buyer, and the freight shall be borne by the seller. Only insurance expenses are excluded from these expenses. The buyer is obliged to have the merchandise insured and to pay the related expenses. In this manner, transportation insurance for the exporters are required within the state borders and until the loading time. Following the loading, the responsibility of insurance on merchandise is borne by the buyer. c) CIF (Cost, Insurance and Freight): This type of trade10 agreement is very similar to C + F type agreement. The only difference is that the responsibility of insurance lies with the seller. Here is the sales contract where the exporter's need for insurance services arises. As it is explicitly explained above, all responsibility for the period elapsing until the merchandise is delivered to the buyer is borne by the seller. The beneficiary of the insurer is mostly the buyer. Therefore any problem the exporter may suffer because of the insurance may shake the commercial position. Another point that requires to be highlighted is that this type of insurance should be effected upon foreign currency and the damages should be discovered and paid in foreign currency. Multilateral Investment Guarantee Agency (MIGA) Multilateral Investment Guarantee Agency Agreement (MIGA) has been established in order to strengthen and reinforce the international cooperation in economy and to help the economic development of the member states by securing the foreign-based investments made in developing countries. The said agreement was ratified by Turkey under the law no. 3453 on 27.05.1988. Investments to be insured within the scope of MIGA cover the capital investments, including the short and long term credits extended by real persons and bodies corporate which are citizens of other member states for the11 investments to be made in member states, as well as other credits and investments to be determined by the Board. Beside the foregoing investments, the foreign currency transfers made to modernise, enhance and develop an existing investment, and investment earnings to be transferred abroad where such earnings are not used within the country can be insured under MIGA. It requires for all the above-mentioned investments to be insured by MIGA that any investment in question should be acceptable by the Board in terms of economic reliability and its justifiable contribution to the host state, in terms of conformity with host state's local laws and legislation, in terms of consistency with the economic needs and development targets announced by the host state as having priority, and in terms of the appointment of a legal observer, who is fair and capable, for the investment in question in the host country. Furthermore the insurance must also be accepted by the host country. Risks insured by MIGA cover the ones arising in connection with foreign currency transfers, expropriation and similar interlocutory injunctions, breaches of contract, state of war and civil commotion. Non-insurable risks by MIGA are the losses arising from the negligence made by the host country or any negligence demanded by the guarantor or accepted by the guarantor. Any loss arising from any action, negligence or any other event caused by12 the host country prior to the execution of the insurance contract are not also included within the scope of MIGA. All rights and credits that the insured may have against the host country and other obligors due to this investment after the institution indemnifies the insured or accepts to indemnify him will be claimed by the Institution by way of recourse from the host state and other obligors as required by subrogation. In practice the said recourse's conditions and terms are set forth in the insurance contract. It has been set forth that MIGA's right for recourse shall be recognised by all member states as set forth in the insurance contract and within the scope of MIGA. As it is easily understood from the above-mentioned information credit institutions can easily extend the credit to any company or nation at any corner of the world, provided that such credit shall be taken under security. Thanks to credit insurance, credit institutions are able to lend more to developing countries when they take the efficiency and productivity of the investment, for which the credit is extended, into account rather than taking the economic and political risks into consideration. Thus, apart from its guarantee function, which is its principal function, credit insurance also contributes much to the economy of developing countries by enabling capital flow to them. Although there are sufficient and proper regulations in13 Turkish law credit insurance is not applied in an effective manner. Credit institutions prefer to secure the credits they extend, rather with mortgage, pledge and commercial business liens. Notwithstanding this preference it is obvious that such form of security shall not be sufficient during political commotion or period of war or economic disasters. Beside Eximbank export credit, credit insurance can be effectively put into application in Turkey for large-scaled assembly investments since Turkey is a party to multilateral investment agency (MIGA) agreement. We believe that credit insurance shall be applicable for domestic and small-scaled credits when commercial relations in our country will develop to that extent. İ.1L1 >-J *"..j[' i
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