In the scientific article turned attention to the mechanism of compensation for moral damage. This article also turned attention to the basic ways of determination the amount of moral damage.
Keywords: moral damage compensation mechanism, the amount of monetary compensation.
Relevance of research of determining the amount of compensation for moral damage is that for the domestic legal system, this mechanism is relatively new, and needs detailed study and reflected in the legal framework of our country.
You also need to consider the fact that this subject often became the subject of various scientific studies. However, because of the absence of a clear mechanism for determining compensation in our legislation, it remains of interest at this time.
Scientific and theoretical basis of scientific research was the work of scientists, specialists such as O. O. Barabash, A. M. Erdelevskoho, E. O. Kharytonova, O. S. Syrotenka, V. D. Chernadchuka and others.
It is known that in Soviet times the concept of non-pecuniary damage, and even more – a mechanism of compensation – does not exist. The Civil Code of the USSR did not contain any rules that would regulate this issue.
This provision was introduced in May 6, 1993 – two years after the proclamation of an independent of Ukraine. Central Committee of the USSR was supplemented in clause. 440-1 «Compensation of moral (non-property) damage» .
Of course, only on the basis of this article there was not chance to regulate properly the process of non-pecuniary damage, and therefore Plenum of the Supreme Court in its resolution of 31 March 1995 the courts explained the mechanism of application of this article . In clause. 440-1 have been adopted and other laws in more detail specified the procedure for compensation of moral damage.
Following the adoption of the new Civil Code of Ukraine 2003 mechanism of compensation for moral damages has become better. New Civil Code regulates in more detail the institute of non-pecuniary damage. In particular century. 23 of the Civil Code stipulates that the amount of moral damages does not depend on the size of the material; clearly set list – what is the moral damage:
1. physical pain and suffering, which the individual has suffered due to injury or other impairment of health;
2. in distress which the individual has suffered due to the wrongful conduct about herself, her family members or close relatives;
3. in distress which the individual has suffered due to the destruction or damage of property;
4. in humiliation of honor and dignity of the individual and business reputation natural or legal person.
Under current legislation the moral damage be compensated in money, other property or otherwise.
The size of monetary compensation for moral damage is defined by court depending on the nature of the offense, the depth physical and mental suffering, deterioration of skills the victim or deprivation of their feasibility, the degree of guilt of the person which caused moral damage, if guilt is the basis for compensation, as well as the other circumstances which are essential .
In particular, the state of health of the victim, the severity of forced changes in his life and industrial relations, the degree to goodwill, reputation, time and effort required to restore the previous condition are taking into account. In case of causing moral harm to person wrongfully committed acts of some persons, the amount of compensation determined by the degree of guilt of each of them [4, p. 105].
For people who caused moral damage together (interconnected, cumulative actions or the actions of the sole intent), relies on joint and several liability of compensation [5, p. 62].
Moral damage is compensated regardless of property damage, which is refundable and is not related to the size of the compensation. Moral damage is compensated once, unless otherwise provided by contract or law. In determining the amount of compensation takes into account the requirements of reasonableness and fairness.
Moral damage can not be compensate in full, as there is no (and can be) accurate property criteria expression of heartache, peace, honor, dignity. Any compensation for moral damage may not be adequate to real suffering, so any amount of it can be highly conditional expression, especially if such compensation relates to the legal person. In any case, the amount of compensation should be adequate to inflicted moral damage [6, p. 235].
According to the Constitution of Ukraine human life and health, his honor and dignity, personal inviolability and freedom and security environment is recognized as the highest social value and moral benefits of individual . The notion of «intangible property» is a collective, it applies to both the «good» and the moral rights. Consequently, these moral good is the object of the corresponding moral rights [8, p. 44].
Jurisprudence does a lot for the development of category of moral damage. There are cases of compensation for non-contractual damages in connection with the death of the breadwinner, when the court adjuticated, for example, a child who lost his father, an amount greater than that which the value of lost livelihoods. The difference between these amounts – this award for non-pecuniary damage latent child for his father’s death, so that the child is deprived of communication with parents, parental affection, parental love. The child has lost a lot of the joys of his childhood. All these circumstances could not affect the positive approach of the legislator to form rules on compensation for moral damages in civil legislation of Ukraine .
As practice shows, in determining the amount of compensation, the judge has several options:
1. Get on the basis of the amount stated in the statement of claim the plaintiff, and the final decision, using the principles of reasonableness and fairness.
The court may change the amount or keep it exactly the same plaintiff requested. However, this does not mean that the court should take the claim as a basis, as it was in accordance with art. 440-1 of the CC of the USSR. At present, the judge must determine the amount of compensation for moral damage by himself, using the principles of fairness and reasonableness, and other circumstances mentioned in art. 3. 23 CCU. Of course, the court may take into account the alleged claims.
Of course using this option, the amount will determine the judge, and the amount claimed by the plaintiff may differ. And in this case the judge must pay attention to the motivation of calculating the amount of compensation because point 9 of Resolution of the Plenum of the Supreme Court «On judicial practice in cases of non-pecuniary (non-property) damage» provides: «In determining the amount of compensation for moral (non-property) damage, the court must give in decision proper reasons» .
2. Appoint a forensic psychological expertise
Procedure for appointment and conduct forensic psychological examination is regulated by Decree of the Ministry of Justice of Ukraine «On Approval of Regulations on the appointment and conduct forensic examinations and Scientific guidance on training and appointment of judicial examination» of 8 October 1998. In accordance with paragraph. 152 of the Regulations expert can put the following questions:
Is the investigated situation are psycotraumatic to the subject?
If yes, is there any suffering ( moral damage) caused to the subject?
What possible amount of compensation for the suffering inflicted (pecuniary damage)?
In this case, the expert, as experience shows, estimates the amount of moral damages in an amount equal to a certain number of minimum wage, depending on various factors mentioned in part 3.art. 23 of CCU.
However, despite this – easier for the court – version of determination the amount of compensation for moral damage, it is not always acceptable, as practice shows, during the forensic psychological examination may be too long (one year or more). Accordingly, at this time is delayed and the case itself .
3. Determine the amount of non-pecuniary damage alone.
In determining the pecuniary damage, you must consider a variety of factors. Some of them provided for in Art. 23 CCU.
According to Art. 23 CCU amount for moral damage the court determs considering certain conditions:
• nature of the offense;
• depth of physical and mental suffering;
• deterioration of the victim’s skiils or deprivation of the possibility of their implementation;
• the degree of guilt of the person who caused a moral damage, if guilt is the basis for compensation;
• other circumstances which are essential.
Mandatory requirements when determining the amount of compensation takes into account the requirements of reasonableness and fairness .
Today in Ukraine there are no clear legal position on how calculated the amount of compensation for moral damage. However, the Russian scientist A.M. Erdelevskii developed a formula by which you can calculate the amount of compensation.
Although the formula developed in Russia, it can be used fully and in Ukraine as take into account the same factors that under Art. CCU 23 for the calculation of damages. Moreover, this formula already used during forensic psychological examination accredited experts who work both in public research institutions and in private institutions (eg, the formula is actively used in the Kiev scientific research institute of forensic examination, forensic Center medical services «MiBi-Lex», etc.).
Therefore, this formula is:
D = d * fv * i * c * (1 – fs)
D (damage) – the actual amount of compensation for moral damage.
This amount of compensation for moral damage, which must be set and adjudicated to the compensation.
d (the same) – presumed amount of compensation for moral damage.
Presumed moral damage – a term defined A.M. Erdelevskym. That is a damage, that feels «average», «normal» person who «normally» responds to it exerted on offense. In fact, the presumed damage assessment reflects the community for a certain type of offense.
The scientist determines the amount of damage in relative units. One relative unit is 720 times the minimum salary. This is the amount the average person can earn in ten years despite the fact, if it receives 6 month minimum salary. According to the professor, this amount is more or less meets the needs of the common man. However, it should be noted that at the beginning of 2016 the minimum salary in Ukraine ($ 55. ) less than in Russia ($ 80. ).
fv (fault, violator – the one who inflicts damage) – the guilt of the person which caused moral damage, while 0≤fv≤1.
For example, direct intent – 1, indirect intent – 0.75, gross negligence – 0.5, simple negligence – 0.25.
I (individual) – factor of the individual characteristics of the victim (subjective condition), while 0≤i≤1.
In determining this factor should be considered a condition indicated in Art. 23 CCU – depth of physical and mental suffering. Since this is a subjective factor, that different people have different reactions can occur at the same unlawful action. It is therefore necessary to consider that factor which is unity, we must provide «regular», «average» person. If a person is too painful react to certain circumstances, the ratio must be greater than one and vice versa – the offense did not affect or does not significantly influence the internal state of the victim, the ratio should be less than one [11, p. 75].
c (circumstances) – coefficient taking into account the circumstances that merit attention (objective factors), while 0≤c≤1.
This figure relates to circumstances which are objective. That is, the circumstances which caused other consequences for the victim, in addition to emotional distress. To this figure must be considered circumstance under Art. 23 of CCU – the deterioration of victim’s skiils or depriving him of the possibility of implementing other damage to health. Also take into account all the other circumstances which are essential, such as termination of employment as a result of spreading false information relative loss due to accidents and so on. This indicator as the previous one, also need to provide a value from 0 to 1, because each person differently perceive reality circumstances caused by the offense.
For example, dismissed from work because of spreading false information a person can pretty much through this experience because it was left without a favorite work and livelihood; A person may not worry about it, because she herself wanted to get rid of one reason or another. In the first case, the ratio is greater than one, the second – less.
fs (fault , survivor – the victim) – the degree of fault of the victim, while 0≤fs ≤1.
To determine this indicator should consider the nature of the offense. That is of great importance is the fact whether the damage caused exclusively by the offender, the victim or his behavior contributed to the occurrence or increase damage. If all previous figures substantiate century. Art. 23 of the Civil Code, the motive of using this indicator is the rules of art. 1193 of the Civil Code. The article notes that the damage caused to the victim because of his intention not refundable. If gross negligence of the victim contributed to the damage or increased, depending on the degree of guilt reimbursement decreases.
If the victim is proven fault in causing damage in the form of direct intent, value fs should be given the status of the unit. Thus, there is in parentheses amount is zero and thus the amount of the entire formula will be zero. If the reduction ratio of 0.9 to 0 final amount of the formula (total compensation) will increase [11, p. 76].
Thus, the current problems arising in the course of civil proceedings, is determining the amount of compensation for moral damages to the plaintiff. In other words – what is this, rather than another amount specified in the petition, the court upheld its decision?
Taking into consideration the fact that in the legislation of Ukraine gradually improving Institute of compensation of moral injury, such regulations should be taken, which accurately and clearly will establish an indicated method of protection of human rights. It is necessary to show to the public that their rights should be defended. When human rights will really become a priority of our society, then we can confidently call ourselves citizens of an independent and democratic state.
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