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Tuesday, 19 July 2016

Insurance law in Islam 2

Insurance law in Islam - Human life in modern times is loaded with a wide variety of risks and dangers. And the man himself does not know what will happen tomorrow and where he will die. Risks that threaten humans are extremely diverse, ranging from air transport accidents, ship, until land transport. Humans also face workplace accidents, fire, burglary, theft, disease, even death itself.

To cope with it all, the man took the initiative to make a deal that could assure himself and his property, which was then known as insurance. This insurance includes contemporary Muamalat no prophet Muhammad. Therefore, there needs to be an explanation of the law in Islam

Definition of Insurance
Insurance is derived from the Dutch word assurantie, or assurance in the French language, or assurance / insurance in English. Assurance means bear something must have happened, Insurance is meant to bear something that may or may not happen.

According to some experts the insurance comes from the Greek, which means convincing people assecurare.

Insurance law in Islam - In the Arabic language known by the term insurance: at Takaful, or at Tadhamun which means: to bear one another. This insurance also called at-ta'min, derived from the amine, which means security, peace, and quiet. His opponent is al-khouf, which means fear and worry. (Al Fayumi, al-Misbah al-Munir, pp: 21) Named at ta'min, because the person who did this transaction (especially the participants) have to feel safe and not too afraid of the dangers that would happen with this transaction.

As for insurance under the terms as stated in Law No. 2 of 1992:

"Insurance or coverage is an agreement between two or more parties, with which the insurer committed themselves to the insured, by accepting the insurance premiums to provide reimbursement to the insured for loss, damage or loss of expected benefits, or legal liability to third parties who may be suffered by the insured, arising from an uncertain events, or to provide a payment based on the death or life of an insured person "

Kinds of Insurance
Experts have different opinions on the mentioned types of insurance, because each one look from a certain aspect. Therefore, in this paper will mention the types of insurance in terms of various aspects, both from the aspect of the participants, the insured, as well as from the aspect of the system is used:

I. Insurance review of aspects of the participants, it is divided into:

1 Personal Insurance (ta'min fardi): the insurance carried by a person to assure of certain danger. This insurance covers almost all forms of insurance, in addition to social insurance

2 Social Insurance (ta'min ijtima'i), namely insurance (guarantees) granted to certain communities, such as civil servants (PNS), a member of the Armed Forces, those who have retired, those who can not afford and others -other. This insurance is usually organized by government and non-binding, such as the Health Insurance (Askes), Insurance and Old Age Pensioners (PT TASPEN), Astek (Social Insurance Labor) which later transformed into the Social Security (Social Security Labor), Asabri (Social Insurance special ABRI), vehicle insurance, education insurance and others.

Note: Insurance Education is a type of insurance that provides assurance / guarantee that the funds will be used for future education expenses. Insurance Education has two elements, namely Investment and Protection. Investment aims to create a number of funds / cash value to be able to beat the rate of inflation, so that the fund or cash value that is created can be used for the purposes of funding education.

Protection has the goal of providing health protection to the Son or the primary participant or primary insured, so that if there is a risk (sick) then this insurance which will provide compensation, without reducing the funds that have been invested in this education insurance. With the protection provided by this fund already invested will not be disturbed because there is a risk. In addition to protection of the health of the child, insurance also provides facility to invest, when parents (depositors) at risk, which in turn will take over the company to deposit in the account to the account of a child's education insurance to adult children. So with this protection, the certainty of funding for education is always available when needed. [2]

II. Insurance in terms of its shape.

Insurance in terms of its form is divided into two:

1. Takaful Insurance or Ta'awun. (At ta'min at Ta'awuni)

2 Commercial Insurance (at ta'min at tijari) include: general insurance and life insurance.

III. Insurance review of aspects of the insured or the insured object

The types asuran review of aspects of coverage are as follows:

First: General Insurance or Insurance (ta'min al Adhrar)

Insurance is insurance that provides compensation to the insured who suffered the loss of his goods or objects, where the loss occurred due to disasters or hazards to which the insured is held, either in the form of loss:
Loss of value in use or lack of value or loss of profits expected by the insured.

Insurers do not have to pay compensation to the insured during the term of the agreement if the insured object does not experience a disaster or insured perils.

Second: Life Insurance. (Ta'min al Askhas)

Life insurance is a promise from the insurance company to the customer that if the customer runs the risk of death in his life, then the insurance company will provide compensation to a certain amount to the heirs of the customer.

Life insurance usually has three forms :

1 Term assurance (Term Insurance)

Term assurance is the basic form of life insurance, the policy that provides insurance against the risk of death in the period

certain time.

Example of Term Insurance (Term Insurance):

Insured Age 30 years
Contract Period 1 year
Premium rate (eg): 5 permill / year of Sum Insured
Sum Insured: Rp. 100 Million
Annual premiums to be paid: 5/1000 x 100,000,000 = Rp. 500,000
Designated as recipients UP: Wife (50%) and first child (50%)
If the insured dies within the term of the contract, the insurance company as the insurer will pay $ 100 million to the Insured designated.

2 Whole Life Assurance (Life Insurance)

Is another type of life insurance that will pay the amount of the sum insured when the insured dies at any time. A permanent policy is not restricted as to the date of expiration of term assurance policy. Because the claim is bound to happen then the premium will be more expensive than term assurance premiums which the claim is likely to occur. Whole life policy is a substantive policy and is often used as protection in the loan.

3. Endowment Assurance (Insurance Dwiguna)

In this type, the amount of the sum assured will be paid at the contract end date has been set.

Examples Dwiguna Term Insurance (Term Combination & Endowment)

Insured Age 30 years
Contract period of 10 years
Premium rate (eg): 85 permill / year of Sum Insured
Sum Insured: Rp. 100 Million
Premium to be paid: 85/1000 x 100,000,000 = Rp. 8.500.000, -
Designated as recipients UP: Wife (50%) and first child (50%)
1 If the insured dies within the term of the contract, the insurance company as the insurer will pay $ 100 million to the Insured designated.

2 If the insured lives to the end of the contract, the insured will receive a sum amounting to 100 million

IV. Insurance in terms of the system used.

Insurance in terms of the system used, it becomes:

1 Conventional Insurance

2 Islamic Insurance is a risk management arrangements that comply with Shariah, please menolongsecara mutual involving participants and operators.

Insurance Law
Insurance according to Islamic law vary from one species to another, as for the details as follows:

First: insurance Ta'awun
For insurance ta'awun permissible in Islam, the reasons as follows :

Ta'awun including tabarru insurance contract '(voluntary contributions) aimed to mutually face collaboration in distress, and took part in taking responsibility in the event of a disaster. The trick is that some people donate a sum of money allocated for compensation for people affected by the loss. Ta'awun insurance group is not intended for profit of commercial and property of others, but simply aims to alleviate the threat of danger that will befall them, and berkersama in the deal.

Ta'awun insurance is free from riba, usury either Fadhal, or usury nasi'ah, because there is no element of riba there and premiums collected are not members invested in institutions that smells of usury.

ignorance insurance participants about the certainty of the amount of compensation to be received is not something that is influential, because in essence they are the donors, so here does not contain elements of speculation, uncertainty and gambling.

The existence of multiple participants or their representatives who invest insurance funds collected the participants to achieve the objectives of the establishment of this insurance, either voluntarily, or with a certain salary.

Second: Social Insurance
Likewise, the social insurance law is allowed for the following reasons:

Social insurance is not included mu'awadlah contract (sale and purchase), but it is a partnership to help each other.

Social insurance is usually held by the Government. The money paid members regarded as taxes or fees, which will then be invested in the Government to cope with disasters, calamities, when suffering from pain or aid in retirement and old age and the like, which in fact it is the duty and obligation of the Government. So in the contract as there is no element of riba and gambling.

Third: Business or Commercial Insurance
As for the Commercial Insurance is haraam. As for the arguments banned Commercial Insurance (Business), among others, as follows:

First: Business Insurance Agreement is included in the contract agreement speculative financial compensation, and therefore contains elements of gharar is obvious. Because the participants when the contract does not know the exact amount of money that he will provide and which he will receive. Because it could be, after once or twice to pay dues, an accident so he was entitled to rations promised by the insurance company. But sometimes accidents never happen, so he paid the entire amount of dues, but not getting anything. Similarly, the insurance company can not specify the amount to be given and to be received from each contract separately. In this case, there is the hadeeth of Abu Hurayrah ra, that he said:

نهى رسول الله صلى الله عليه وسلم عن بيع الحصاة وعن بيع الغرر

"The Messenger of Allah forbade selling hashah manner (ie: buying and selling by throwing pebbles) and other ways that contain elements of fraud." (Reported by Muslim, no: 2787)

Second: The Business Insurance Agreement, including the form of gambling (gambling), because it contains elements mukhatarah (speculative risk-taking) in compensation money, it also contains (al ghurm) adverse party without error and without cause, and contains elements of making a profit without reward or unequal exchange. Because the participants (insurance recipients) sometimes once a new pay insurance contributions, then an accident, then the company had to bear the loss due to having to pay the total amount of insurance without reward. Conversely, there may be no accident at all, so the company took advantage of the entire premium paid all participants free of charge. If there is uncertainty as this, then contract as it includes a form of gambling which is prohibited by Allah, as in his words:

يا أيها الذين آمنوا إنما الخمر والميسر والأنصاب والأزلام رجس من عمل الشيطان فاجتنبوه لعلكم تفلحون

"O ye who believe, in fact (drinking) alcohol or gambling, (sacrificing to) idols, gambled the fate of de-ngan arrows, are abominations including deeds devil. So stay away from the deeds that ye may prosper. "(QS. Al-Maidah: 90).

Third: Business Insurance Agreement that contains elements of usury and usury Fadhal nasi'ah at once. Because if the insurance company to pay compensation to the participants (recipients of insurance services), or to his heirs in excess of the amount of money they have deposited, meaning that usury Fadhal. If the insurance company pays it after some time, then it includes usury nasi'ah. If the insurance company only pays to the customer at which he deposited only, meaning that only usury nasi'ah. And both types of riba has been forbidden based on texts and ijma 'of the scholars.

Fourth: There Business Insurance also contains elements of Rihan (bets) are forbidden. Because it contains an element of uncertainty, fraud, and gambling. Shari'a does not allow betting profitable unless Islam, and raised Symbols with proof and weapons. The Holy Prophet has given relief on this bet is limited to three terms only, as in the hadith of Abu Hurairah ra, that Messenger of Allah said:

لا سبق إلا في خف أو في حافر أو نصل

"There is no race except the foot tread animal (camel), or the hoof (horse), as well as archery." (Sahih Hadith Abu Daud history, no: 2210)

Insurance is not included in that category, even not like at all, so it is forbidden.

Fifth: The Business Insurance Agreement including those taking property without compensation. Taking property without compensation in all forms of commerce was forbidden, as it includes forbidden in the word of God:

يا أيها الذين آمنوا لا تأكلوا أموالكم بينكم بالباطل إلا أن تكون تجارة عن تراض منكم ولا تقتلوا أنفسكم إن الله كان بكم رحيما

"O ye who believe, do not eat each other neighbor's property by way of vanity, except with the prevailing trade with consensual among you. And do not kill yourselves; Allah is Most Merciful to you. "(QS.An-Nisa ': 29).

Sixth: Business Insurance Agreements contain elements that require something that is not required by Personality '. Because the insurance company has never created a danger and never be the cause of danger. That there is only a form of agreement to the participants of the insurance beneficiary, that the company will be responsible for the dangers that are likely to occur, in exchange of a sum of money paid by the insurance beneficiary participants. Yet here the insurance company does not do any work for the service recipient, then the act is clearly unlawful.

Differences Takaful and Conventional.

The difference between the two is as follows:

Basic Principles of side

Conventional Insurance and Takaful both are tasked to manage and mitigate risk, only in the Takaful concept of management is done by using a pattern of mutually bear the risk between managers and participants (risk sharing) or referred to at takaful and at tadhamun. Medium in Conventional Insurance work patterns are shifting risk from customers (participants) to the company (manager), the so-called risk transfer. So the risk that the participants will be borne in full by the manager.

From the side Akad

In certain parts of sharia insurance there is tabarru '(humanitarian donations) and ta'awun (please help), as well as contract wakalah and mudaraba (profit sharing). While in conventional insurance, there is buying and selling that is al-gharar (speculative).

From the side ownership Fund

In the Conventional Insurance funds paid to the company customers (premium) to be fully owned by the company, especially if the participant does not make any claim during the insurance period. While in the Takaful funds still belong to the participants, net of financing and fee (ujrah) company. Because in the Islamic Insurance, the company only as a fiduciary (representatives) who are paid by the participant, or often referred to as al Wakalah bi al Ajri. As company can also fund manager (mudharib) in contract Mudharabah (profit sharing). There are even companies that restore underwriting surplus fund management tabarru'nya to participants as long as no claim on the insurance period. Or the company as a fund manager.

In terms of object

Takaful only limit management on objects legal insurance and contains no doubtful. Therefore should not be made ​​the object on the things haram or doubtful, as the buildings are used for immoral, or factories liquor and cigarettes, even hotels are not sharia. The Conventional Insurance does not distinguish objects haram or halal, which brings important advantages.

From the side of the Investment Fund.

Funds from the collection of premiums from participants for not worn, the Islamic insurance companies invested in keuangaaan institutions based on sharia or lawful projects that are based on the wage or profit-sharing system. As for conventional insurance investment management system that contains a lot of interest usury and speculative (gharar).

Payment of Claims sides.

In Islamic insurance claim payment deducted from account tabarru (social fund) of all participants, which from the beginning intended to diinfakkan for the sake of helping each other in the event of a disaster at some or all of the participants. While in conventional insurance claim payment is taken from the fund company because since the beginning of the agreement that the entire premium to the company and in the event of a claim, it will automatically be expenditure to the company.

From Side Control.

In Islamic insurance there is a Sharia Supervisory Board (DPS), get something that is not in the conventional insurance.

In terms of zakat, sadaqah and infaq.

In Islamic insurance is no obligation to issue a charity as the provisions of Islamic law. As in conventional insurance not known the term zakat.



Insurance Developments in Indonesia

Conventional Life Insurance is the first time in Indonesia NILIMIJ founded by the Dutch government in 1859 AD, then in 1912 the indigenous people of Indonesia set up OL-Mij which is essentially just a development of NILIMIJ above. Ol-Mij is finally menjelman into PT Asuransi Jiwa Bersama Bumi Putra. Since then, the conventional insurances grow rapidly until the year 2005 has recorded as many as 157 perusahaan.Laju growth (1%) each year. Among the existing life insurance are: American International Group Lippo (Aig Lippo), Eka Life Insurance, Life Insurance Indolife Pensiontama, Prosperous Life Insurance Metlife, Life Insurance Tugu Mandiri, PT. BNI Life Insurance.

The first Sharia Insurance in Indonesia has just appeared on 24 February 1994, namely Syarikat Takaful. However, the development of Shari'a insurance much more rapidly than conventional insurance, because until the year 2005 has recorded 29 companies, so the growth rate up to (8%) in one year. Even now the 34 firms more.

Average Sharia insurance mentioned above, is the incarnation of the conventional insurance moving into insurance Shari'ah in total or have a dual program, which sells products of conventional and Shari'a in one time. That is really from the beginning established declare themselves as Islamic insurance is PT Asuransi Takaful Keluarga which stands on August 4, 1994 Other examples of Islamic insurance company PT Asuransi Al MUBARAKAH standing in 1997 and PT MAALife Assurance, while the insurance company which has a conventional Islamic products are: PT Asuransi Jiwa Manulife Indonesia, PT Asuransi Jiwa Sinar Mas. *



Footnotes:

[1] DR, Sheikh Husain bin Muhammad al fact, Al-Fatwa wa Nasyatuha Tathuwuruha, It. 909

[2] http://www.asuransicerdas.com/

[3] http://pojokasuransi.com

[4] Muhaimin Iqbal, General Insurance Sharia in Practice, p: 2

[5] Decision Majma 'Fiqh al Islami, at its first meeting held on May 10-17 at the center of Sha'ban 1398 H Rabithah al-Alam al-Islami, Makkah al-Mukarramah, and the decision Hai'ah Kibaril cleric in the Kingdom of Saudi Arabia during the tenth meeting in Riyadh dated 4/4/1397 H, the number 51. SK Likewise, Congress's decision Majma 'al Buhuts al Islamiyah in Cairo, knowledge 1392/1972.

[6] Prof. Dr. Husain Husain Sahatah, Insurance In Perspective Sharia, It. 9- 12 Majma 'Fiqh al Islami, the per-tamanya meeting held on the 10th of Sha'ban 1398 AD in Makkah al-Mukarramah in central Rabithah al-Alam al-Islami Kibaril Ulema Council in the Kingdom of Saudi Arabia at the meeting to cousin luh in Riyadh dated 04.04.97 M, with the decree number 55,

[7] Prof. Dr. Drs. Summa M. Amin, SH, MA, MM, Takaful and Conventional Insurance, It 60-65, Prof. Dr. Husain Husain Sahatah, Insurance In Perspective Sharia, It. 163, Muhaimin Iqbal, General Insurance Sharia in Practice, pp: 2-5

[8] Prof. Dr. Drs. Summa M. Amin, SH, MA, MM, Takaful and Conventional Insurance, It 69-73



Author: DR. Zain Ahmad An-Najah

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