Переосмысление назначения института обязательств из причинения вреда в современных условиях

Abstract

There are several types of obligations and infliction of harm: a) a tort obligation, the basis of which is a tort; b) an obligation to inflict harm by lawful conduct; c) an obligation to inflict harm by the wrongful conduct of incapable citizens; d) an obligation to suppress activities that create a risk of harm in the future, which can only conditionally be attributed to obligations to inflict harm. Among the types of obligations from the infliction of harm, the doctrine does not name obligations to compensate "non-contractual" losses. However, the Civil Code of the Russian Federation provides for many rules on their compensation: in case of abuse of right; in case of invalidity of transactions; in case of bad faith conduct of the parties in negotiations on the conclusion of the contract, etc. Determining the nature of the obligation to compensate for such losses depends on understanding the relationship between damages and losses. Different views have been expressed in the literature. We consider damage to be a generic notion, while damages are a kind of it, a monetary form of damage. The nature of damages is also ambiguously understood in the doctrine. There is an opinion that damages are not a measure of liability and that they represent any loss in property. We believe that a broad understanding of damages contradicts the law and judicial practice. The nature of the obligation to compensate extra-contractual damages has not been sufficiently explored in the doctrine. It has certain features inherent to the obligation of infliction of harm: 1) it arises upon infliction of harm (losses); 2) it is pecuniary; 3) it is subject to the principle of full compensation for damages; 4) not only the one who inflicted the damage, but also other persons may be obliged to compensate losses; 5) its execution is performed in favor of the victim; 6) it is relative, legal relationship of active type, one-sided. At the same time, the obligation to compensate extra-contractual losses has peculiarities: 1) the basis for its emergence is only a tort with full composition; 2) it arises in violation of relative, not absolute, civil rights, such as corporate rights; 3) compensation for extra-contractual losses is conditioned by infliction of damage only to property rights; 4) it applies only measures of responsibility - compensation for damages; 5) this obligation is always pecuniary. Chapter 59 of the Civil Code is not designed for a variety of cases of non-contractual damages, in the norms of this chapter the tort is understood narrowly, as direct infliction of harm to life, health or things, but not the relative property rights of the victims. Special torts have long been known. There is none among them that could be applied to the named cases of extra-contractual damages. A rethinking of the purpose of the institute of obligations from the infliction of harm, giving it a universal character, is required. Measures are proposed to improve the rules of Chapter 59 of the Civil Code of the Russian Federation.