Utilize este identificador para referenciar este registo: http://hdl.handle.net/10451/11771
Título: O seguro de acidentes de trabalho
Autor: Bacêlos, João Luís Magarinho
Orientador: Martinez,Pedro Romano,1959-
Palavras-chave: Direito dos seguros
Contrato de seguro
Acidente de trabalho
Prémio de seguro
Teses de mestrado - 2013
Data de Defesa: 28-Ago-2014
Resumo: We have seen, by the brief approach made to the historical evolution of the legal regime of accidents at work, that it was with the 83 Law, 24th of July 1913 that the first legal regime appeared to repair the accidents at work and that the principle of its obligation came to be consecrated in the 5637 Decree, 10th May 1919, being restated by the 1942 Law on 27th July 1936, but it was only regulated by the 2127 Law on the 3rd August 1965 with the 360/71 Decree-Law when it was really established and its obligation consecrated, always reiterated in the following diplomas: that the working accident insurance is regulated by its own diplomas and regular clauses; that with the evolution it expanded its obligation factor to the independent workers (100/97 Law) and it was regulated in a new security framework to the worker concerning professional rehabilitation and reintegration, (98/2009 Law). Belonging the accident insurance contract to the area of the responsibility insurance, in the evolution of the legislative thought we have nowadays this special objective kind of civil insurance based on the responsibility without the employer’s fault, related to the repairing of the damages caused by the working accident, it appeared by the exception to the extra-agreement civil responsibility; different from the insurance contract of the independent workers concerning the 3th article of LAT 97 and the 155/99 Decree/Law, ensuring the same service provided in LAT, but not the transfer to the civil responsibility, as the insurance provider and insured person are the same, working the insurance as a modality of personal accidents suffered by the insured person connected to his own activity. Concerning its classification and duration we have already seen that it can be on his own or on someone’s else, temporary, pre- determined time limited to days or months and not temporary, one year and the following, automatic renewal at the end of the year; which in the qualification of business branches, the work accident insurance can be included in the Not-Life classification. In whatconcerns the contract of the work accident insurance, considering the agreement, we have already seen that the typical obligation of the insurance owner is to provide the service which results from a sinister associated to a certain risk, remaining this one in the legal field of the insured person; that the main obligation of insuranceowner is based on the secure pay, which is determined by the insured person, and calculated according to the responsibilities covered by insurance policy. Concerning its legal nature, the work accident insurance contract is a bilateral agreement, synallagmatic, onerous, aleatory, trustful, indemnifier, specific, personal, consequent, constant, typical and prolonged. The constituents are the insurance owner and the insured person, being this the employer. It was found that the work accident insurance can be effected in a fixed or variable prize modality, after being analyzed both and its different coverage. When making the contract, we have seen that being this kind of insurance compulsive, the relation of it results from the law itself, it is not allowed to both constituents to change or adjust the terms of the contract; that the basis of it are the assumption of risk and the payment of the prize; that the insurance contract is valid without any special observance, meaning that it’s only necessary the consensus between both sides, through a verbal, letter, fax or e-mail form, to make the contract valid and effective, despite the fact that the insurance policy is not yet issued, derogating the formal nature of the insurance contract foreseen by the 426th article of the Commercial Code; that the consensual nature comes from the principle stated in the LRIC -Legal Regime of the Insurance Contract- 32th article; that the law obliges the insurer to formalize the contract through a written document, a dated and signed insurance policy which should be sent to the insured person.It has been analyzed the relevance of the statements of the insured person when making the contract, in particular the insurance contract formalized in the way of holidays sheets according to the 429th article of the Commercial Code, is currently revoked which should be understood in a restrictive sense whenever there is a compulsory insurance, when certain inaccuracies are performed in good faith by the employer, not putting at risk the validity and the effectiveness of the insurance, it has been verified that facing inadequate statements some demonstrations of the facts should be carried out or when hidden situations can influence over the existence of the conditions of the contract.Concerning the changes of the contract, we may conclude that such they will be registered in a document named as additional official record, making integrant part of the insurance policy and prevailing on the terms and initial conditions of the changing parts. Relatively to the qualification of the work accident insure contract as a contract in favour of others, we must follow the understanding of the majority of the case law to qualify it, by different reasons, particularly because it is qualified as an insurance of civil responsibility (138th article nr 3 of the LRIC –Legal Regime of the Insurance Contract) adapting it to the work accident insurance the arrangements connected to the civil responsibility insurance not opposing the normal regime of work accident insurance (137th and 148th articles of the LRIC); as this is a compulsory civil responsibility insurance, of public interest, as a way to be insured the compensation to the victims, the contract is established in behalf of the injured workers and the only ones in this situation, of the injured third parties, holders of insurance interest, being not opposable to the existing relationships between the insurance owner and the employer; that the injured workers have the right to demand directly to the insurance owner, and only this one can solve any issues with the injured, his legal heirs or with the court the emerging situations from working accidents, in particular the obligation arising out of the contract, not being allowed that the parts by convention to change the general rule according to the compensation, avoiding that way the resolution of the contract after the accident; they have the right of direct action before the insurance owner, which cannot be avoided by contractual clause. It was checked that the right of the injured emerges from the law and that the damage is charged to the injured, that the right to repair comesfrom the contract and this is claimed to the insurance owner to whom was transferred the civil responsibility which remains in the legal area of the injured; right to be compensated with the partial repair of the salary which he is not receiving, with the exception of the convention over the total salary. Finally, it was checked that all the damages suffered are not granted by the worker under the agreement of the work accident insurance, in particular the non-patrimonial damages and the lost profits, as they are excluded from the compensation system of the working accidents, except to the cases which are attributed to the employer as guilt or malice, situation which can be provided by the Law in its 18th article, nr 2, resultingfrom the particularity of this regime, different from the objective labour accident responsibility according to the general legal terms, which can be characterized by the worsening of the compensation amount and by the chargeback of the non-patrimonial damages. Out of this regime are all the accidents in which the employer is not to blame, so in certain situations, the worker is obliged to establish two different actions, one of labour nature and the other a civil law in order to get the possession of all his rights and the defense of all the damages suffered. The same cannot happen with the compulsory civil responsibility insurance of the car sector, in case of a car accident, for instance, that way no extra value would be added to the objective civil responsibility, as social function, so that the legislator could give the consequent equalization without the damage of the possible limitation of the consequent compensation and the moderator role which is up to the court, giving the consequent amount of money according to the 494th and the 499th articles of the Civil Code.
URI: http://hdl.handle.net/10451/11771
Aparece nas colecções:FD - Dissertações de Mestrado

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