Real Value Loss of Moral Damage Compensation for Credit Harm in First-Instance Decisions at TJSP

The compensation for harm is one of the most important legal ways to protect the violated civil rights and interests of the participants in civil relations. In modern market conditions, this method of protection is the main one for restoring the material condition or compensating for moral harm to the injured person. In the context of updating civil legislation and adapting it to EU legislation, there is a need for new approaches to the legal regulation of compensation for harm. The article examines the general terms of compensation for harm: the illegality of the behaviour of the person who caused the harm, the presence of harm, the causal relationship between the illegal behaviour and the harm, and the fault of the person who caused the harm. Special attention is paid to the issue of illegality (illegal behaviour) as a condition for compensation for damage. Here the theories of illegality are analysed: objective (normative) and objective-subjective. The definition of harm is investigated. The attention is focused on the ratio of the concepts of "harm" and "damages". Attention is drawn to the problems of legal regulation of the concept of moral harm. It is established that according to the practice of European Court of Human Rights, the content of moral (non-property) harm is determined differently in relation to individuals and legal entities. In addition, the methods of determining the amount of compensation for moral harm are analysed, in particular, the method of psychological research certified by the Ministry of Justice in Ukraine and registered in the Methodology of Psychological Research in Cases Involving the Infliction of Moral Suffering on a Person and Compensation for Moral Harm (registration number 14.1.75), which was put into effect from 18.01.2019. The article analyses the legal regulation of the causal relationship between illegal behaviour and harm in the Principles of European Tort Law (PETL). Based on the results of the research, it was concluded that in the future it is advisable to continue studying and improving the obligations to compensate for harm, in particular, the system of special torts provided for by Chapter 82 of the Civil Code of Ukraine is subject to revision.

The subject of the research in this article is the consideration of the causes of the legal structure of compensation for moral harm, the study of the evolution of the mechanism of legal regulation of the compensation for moral harm in Russia in the Russian Empire, the Soviet Union, modern Russia. The study of the formation of the institution of compensation for moral damage is carried out on the basis of its correlation with the provisions of the Talion principle. The relevance of the research is due to the significance of the study of the peculiarities of the regulation of the civil law mechanism of the institute of moral damage compensation and the need to systematize views on understanding the development of the mechanism of legal regulation of the institute of moral damage compensation in different periods, under different political systems in Russia and, as a result, the division of all periods of legal regulation of the institute of moral damage compensation into several stages. It is also necessary to note the importance of conducting a comparative analysis of the mechanism of compensation for moral damage and the provisions of the talion principle throughout the entire time of their coexistence. The scientific novelty of the research is determined by the goal itself and the results of the work. In the course of the scientific research, the author systematized information about the development of the mechanism of legal regulation of the institute of compensation for moral harm, proposed his classification of the evolution of the mechanism of legal regulation of the institute of compensation for moral harm, consisting of several stages: pre-revolutionary, Soviet, modern, justified his conclusions; analyzed the ratio of the institute of compensation for moral harm and the Talion principle, their role and significance on the during each of the selected stages of the evolution of the legal regulation of the mechanism of compensation for moral damage. The correlation of the mechanism of compensation for moral damage and the talion principle within each study period is analyzed. The position of the institute of compensation for moral damage to the talion principle is determined.

The subject of the study is the state responsibility in the form of compensation for harm, committed by massive violation of human rights and freedoms. The object of the study is the actual and historical forms of the state responsibility in the legal systems of the Russian Federation and the United States of America. The author examines in detail such aspects of the topic as: the implementation of state responsibility for the damage caused within the framework of private law (regular) and public law (emergency) mechanisms; law enforcement practice of the Russian Federation and the United States on issues of state compensation for harm; the practice of adopting "compensatory acts". Special attention is paid to the principle of sovereign immunity of the state, its historical origin and modern understanding, differences of its interpretation in the Russian Federation and the United States; identification of common features and differences in approaches to the institution of state compensation for harm in the two countries; proposals for improving national legislation in the context of the topic under consideration. Using a comparative method, the author illustrates the processes of formation of this institution in the studied legal systems, defines the differences between the institutions of compensation for "private law" and mass harm committed by the state. The legal research presented in the article allows to conclude that the established practice of implementing this institution has similar features in both studied states, which allows us to use each other's experience. The novelty of the study is justified by conducting a comparative study of state-sponsored compensation institutions in the Russian Federation and the United States with an emphasis on mass harm, which revealed a general trend towards the adoption of "compensatory acts", the purpose of which is to circumvent the judicial procedure for dispute settlement in such situations. A proposal was also formulated on the need to specify Russian legislation in the field of compensation for mass environmental damage, including through the introduction of compensatory mechanisms. The practical significance of the work lies in the possibility of using its results to improve legislation and law enforcement practice in the field of state compensation for mass harm.

The object of this study is social relations arising during pre-trial proceedings to ensure the realization of the victim's right to compensation for harm caused by a socially dangerous act. The subject of the study is the norms of criminal procedure law, which determine the procedure for compensation for harm to the victim, materials of investigative practice, statistical data regarding the scope of realization of victims' rights to compensation and compensation for harm caused by a crime. The relevance of the topic is determined by the importance and significance of the actions of the investigator, the inquirer in terms of establishing property that can be seized in the event that the suspect or accused does not want to compensate for the damage caused by criminal actions, as well as the importance of ensuring the possibility of compensation for damage in order to achieve one of the purposes of criminal proceedings. At the moment, there is a need to improve measures aimed at stimulating positive post-criminal behavior and the possibility of compensation for damage caused within a reasonable period of criminal proceedings. The main conclusions of the study are: 1) the activities of an investigator, inquirer in terms of ensuring guarantees of compensation for harm caused by a crime should be based on a set of measures aimed at clarifying the rights of participants, including the possibility of using alternatives to punishment; 2) it is advisable to provide for the procedure for concluding an agreement on compensation for harm caused by a crime, allowing installments or postponement of appropriate payments to the victim; 3) expand the list of other measures of criminal procedural coercion by adding a list of pledged property as a guarantee of the possibility of restoring or compensating the rights of the victim.

The article discusses the evolution of views on the problem of compensation for moral harm in Russian and foreign Civil doctrine. The author analyzes the features of the position on the issue of compensation for moral harm, expressed by Professor S. M. Korneev, as well as the approaches of modern law enforcement practice in cases of compensation for moral harm. The article shows the origin of the problem of compensation for moral harm in Roman law on the example of the so-called claims for insult. The possibility of compensation for moral harm in the Middle Ages was practically denied, largely due to the prevailing doctrine of restitution. Subsequently, the legislation on compensation for non-pecuniary damage was most developed in England. Ample opportunities to compensate for non-property damage to the victim began to be provided in France and Italy. In more conservative countries - Germany and Austria, as a result, they also recognized the legality of compensation for non-pecuniary damage. In Russia, it was initially possible to observe the beginnings of this institution, in the USSR they were gone. Compensation for moral harm became possible only during the period of “perestroika”. The current Russian legislation not only recognizes compensation for non-property damage, but also provides for a wide frameworks for its application.

The paper examines the types of harm provided for by domestic legislation, their procedural features in a criminal case by filing a civil claim. The author argues that there is a need to amend the existing normative legal acts regulating the issues of compensation for harm caused by a crime, in particular, presents some arguments about the disclosure and legislative consolidation of the concept of “harm” in the framework of criminal proceedings. The author analyzes the gaps associated with compensation for property damage, in terms of the difficult simultaneous compensation for property and moral damage, as well as the lack of opportunity in the criminal procedure to recover lost profits. Some features of compensation for moral damage in relation to individuals and legal entities are investigated, for example, the issue of applying the rules for compensation for moral damage when a civil claim is filed by a legal entity. The process of proving the damage caused and the gaps in the issues of awarding compensation amounts in civil claims for compensation for damage, taking into account judicial practice, are considered. The author expresses her opinion on the matter of interim measures application in relation to the property of tortfeasor and imposing on the judge the obligation to render a decision in case of such a need, and not the right. Some differences between a civil claim for damages in criminal proceedings and civil proceedings are given, for example, the possibility of indexing the amounts subject to compensation has been analyzed. The analysis of some regulatory acts and the study of the procedure for compensation for harm caused by a crime in the UK. The author presents an argument about the development of scientifically grounded methodological recommendations that would fully reveal the existing gaps and problems in compensation for various kinds of harm caused by a crime.

The problem of compensation for damage caused by a crime has remained extremely relevant in recent years due to the lack of a protective and restorative mechanism within the framework of criminal proceedings to protect the violated rights and legitimate interests of persons affected by crimes. The emergence of new grounds for exemption from criminal liability, which do not take into account the interests of victims, increasingly exacerbate the existing situation in the field of ensuring compensation for damage caused by a crime and dictate the expediency of taking additional measures aimed at protecting the rights and legitimate interests of victims. The subject of the study is the criminal procedure legislation regulating the issues of compensation for damage caused by a crime, as well as the powers of employees of the preliminary investigation bodies to ensure this activity. The purpose of the study is to develop proposals for improving ways to ensure compensation for harm caused by crimes at the pre-trial stages of criminal proceedings. As a result of the conducted research, the authors came to the conclusion that it is necessary to increase guarantees of ensuring the rights of victims to compensation for damage caused by crimes and to create additional opportunities to stimulate suspects and accused persons to voluntary compensation for harm. The obligation of the State to compensate for damage, enshrined in article 52 of the Constitution of the Russian Federation, finds its realization by transferring these functions to the bodies of preliminary investigation. The scientific novelty of the study consists in the development of changes providing for the introduction of additional restrictions on persons suspected and accused of committing crimes, including using information technology capabilities for this purpose, as part of the preliminary investigation, by analogy with administrative legislation.

Introduction: the authors examine the jurisprudence on claims concerning compensation for moral harm including that systematized in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 33 of November 15, 2022. The first explanations concerning compensation for moral damage were published almost 30 years ago, in 1994. Since then, great changes have occurred in social, economic, and cultural spheres, not to mention the development of legislation. The emergence of the citizens’ new legal interests and expectations with regard to the level of protection has required a more modern interpretation of the institution in question. Purpose: to identify trends in the interpretation and application of the rules on compensation for moral harm; to assess the legal positions set out in Resolution No. 33 in terms of their compliance with the legal doctrine, the potential for filling gaps in the legislation, the significance for the distribution of the burden of proof and more effective resolution of relevant disputes. Methods: dogmatic, historical, and comparative legal analysis. Conclusions: Resolution No. 33 generally reflects the approaches developed in the legal doctrine and judicial practice with regard to the grounds and conditions under which compensation for moral harm can be recovered, to the understanding of who the parties to this obligation are. The Resolution reflects the tendency toward expansion of the list of grounds for awarding compensation (for example, in case of damage to things of great non-property value to the victim; in case of illegal seizure of part of income and inability to maintain the previous standard of living). At the same time, the positions of the Supreme Court are characterized by excessive caution with respect to proof issues. The Plenum limited the effect of the presumption of moral harm to only some cases of violation of a natural person’s rights (damage to life or health, violation of consumer rights). There is no attempt in the Resolution to explain the criteria of causation and no mention of presumption of a causal link in certain circumstances, including in relation to illegal acts of public authorities and medical malpractice, where proving this precondition of liability may be difficult for the victim. Provision of detailed criteria for establishing the amount to be recovered as compensation for moral harm, instead of focus on the application of average amounts recovered in similar cases, is unlikely to have a significant impact on the practice of courts determining the amount of compensation in a rather arbitrary manner.

The purpose of criminal proceedings predetermines the need to form effective procedural mechanisms that ensure the protection of the rights of persons who have suffered from a crime or from illegal and / or unjustified criminal prosecution. However, the purpose of criminal proceedings in itself is only a vector that determines the direction of development of the criminal procedural law, and its (law) content is determined based on many factors, one of which, the most significant, is scientific developments. Compensation for moral harm in criminal proceedings seems to be a promising scientific direction, within the framework of which numerous positions are expressed, interesting concepts are formed, and non-standard solutions to many complex problems are proposed. The purpose of this study is the formation of a generalized concept of compensation for moral harm in criminal proceedings, corresponding to modern scientific achievements. Within its framework, the following tasks were solved: determination of the main features and the formation of a theoretical definition of moral harm in relation to the sphere of criminal proceedings; study of the legislative basis of the mechanism of compensation for moral harm and its problematic aspects; determination of the grounds for the emergence of the right to compensation for moral damage; study of the problem of unification and differentiation of judicial practice in terms of determining the amount of compensation for moral damage caused, etc. The main research methods were: dialectical, historical, logical, analysis and synthesis, generalization, comparative legal, formal legal, systemic and structural. The results are the following conclusions and proposals: - moral harm in criminal proceedings is a particularly controversial topic in the science of criminal procedure and a difficult problem in law enforcement. The resolution of the existing difficulties is possible solely on the basis of fundamental scientific developments, taking into account the basic needs of practice; - moral harm can be the result of not only a crime, but also illegal criminal prosecution of a person involved in its commission, which necessitates the legislative consolidation of an appropriate mechanism for its compensation; - the grounds for compensation for moral damage is a set of circumstances, the establishment of which is within the competence of the court, when considering and resolving a criminal case on the merits of the charge brought; - the subjects entitled to compensation for moral damage are both individuals and legal entities acting both in official procedural status and involved in criminal proceedings; - compensation is subject to damage caused by any category of crimes, including crimes against property.

The Civil Code of the Russian Federation and legislation in the sphere of health care do not contain norms about the civil liability of a medical organisation to a patient. The issues of the correlation between these types of liability remain under-researched in the literature. There is no uniformity in judicial practice in resolving disputes in this area. The analysis of the literature and practice allows us to identify the distinctive features of contractual and tort liability of medical organisations. They include the imperative nature of norms on tort liability and dispositive nature of norms on contractual liability; contractual liability of a medical organisation to a patient is possible only if no harm to life or health is inflicted upon it - when such harm is inflicted, tort liability arises. The medical organisation's guilt or the patient's guilt in imposing contractual or non-contractual liability on a medical organisation is not the same. As a general rule, where there is a plurality of persons on the side of a medical organisation, joint and several liability arises in the event of non-contractual liability. The forms of contractual and non-contractual liability are different. It is generally accepted in the legal literature that liability for harm to a patient's health or life in the provision of paid medical services is in tort. However, due to the expanding scope of contractual regulation in medicine, the correctness of such provisions has come into ques-tion. It seems that the position on the priority of contractual liability of a medical institution has no legitimate basis (Art. 1084 of the Civil Code of the Russian Federation). In court prac-tice, regardless of the existence of a contract for the provision of paid medical services, in case of harm to the patient's health or life, the rules on torts are applied. The nature of increased liability for causing harm to a citizen's life or health stipulated by the contract is disputed in the literature. It appears that the contract for the provision of medical services may increase the amount of liability but may not change its nature, it remains a tort. As a rule, the issue of possible application of tort and contractual liability to a medical organisation at the same time is not specifically discussed in the literature. In court decisions holding a healthcare provider contractually liable, compensation for moral damage is referred to as a form of contractual liability along with compensation for damages and payment of a penalty. This approach blurs the distinction in terms of contractual liability of a medical organisation and tort liability in the form of compensation for moral harm. Contractual liability arises irrespective of fault (paragraph 3 of Article 401 of the Civil Code of the Russian Federation); compensation for moral harm is allowed, as a general rule, only in the presence of the fault of the person who caused the harm (paragraph 2 of Article 151 of the Civil Code of the Russian Federation). The terms of liability in such cases must be determined with due regard to the above rules.

Relevance. One of the basic approaches for civil law is to allow the injured party to claim full compensation for the harm caused and the losses incurred. The widespread use of this approach is based on universal ideas about the reasonableness and fairness of full compensation to the injured party for the diminution of its property sphere at the expense of the offender or other harm-doer. Compensation of damages, directly related to the implementation of the principle of compensation for harm, plays a crucial role among all the means of protection of subjective civil rights specified in the list given in article 12 of the Civil Code of the Russian Federation. The purpose of the study is to develop theoretical provisions defining the specifics of implementation of the principle of full compensation for damages at the current stage of development of market economy and social relations in the Russian Federation. Objectives: to identify the problems associated with the implementation of the principle of full compensation for harm in the civil law of the Russian Federation; ; to determine the features of the balance of interests in the recovery of compensation and other cases of compensation for harm caused; to determine the directions of further development of legal regulation of the issues under consideration. Methodology. When writing the work, dialectical-materialistic method, systematic method, methods of analysis and synthesis, formal-legal method were used. The results of the research are of a theoretical and applied nature and are aimed at improving the quality of legal regulation of civil legal relations. The conclusions made in the article are of debatable character, are aimed at continuing of researches in the framework of the stated theme, are aimed at development of the main principles that allow to solve in a unified way the problems connected with realization of the rights to full compensation of damage to the injured party at the expense of its causer. The article is a continuation of scientific studies of the author on issues related to the problems of civil liability.

The article explores the meaning of the principle of the compensation in full upon the occurrence of a tortious liability in comparison with the content of the principle of compensation in full for harm caused to a citizen during the implementation of the criminal procedure. In this regard, the author investigates recent judicial practice on criminal proceedings cases relating to compensation for material damage and moral harm with full and partial rehabilitation, and shows the absence of unity of interpretation of the elements of the material damage, compensated on general grounds of delictual liability (Art. 1064 of the Criminal Code of the Russian Federation) and on special grounds (Art. 1070 of the RF Civil Code and Art. 135 of the Criminal Procedure Code). The analysis of judicial practice on this category of cases provides reasoning for the conclusion that the compensation for damage to property, paid off to the rehabilitated person is much smaller than the damage compensated under tort obligations (Art. 1064 CC RF). The author shows lack of unity in the approach to determining the amount of compensation for moral injury at full and partial rehabilitation; reveals the notion of "amount" and "size" of the recoverable damage as different legal categories; and justifies the application of the concept of "amount of compensation" and "size of compensation". The generalization of the recent judicial practice and the investigation of judicial practices of the past years, which concern tried in criminal proceedings cases related to the compensation for damage to property, compensation for moral harm suggests that in practice, the principle of full reparation for harm done by the criminal proceedings does not occur. The analysis of the current Criminal Procedure Code and the Civil Procedure legislation on compensation for damage to property, moral harm compensation, reinstatement of labour, housing, pension and other rights of rehabilitated citizen testifies the duality of the existing order for restitution of property and personal non-property rights of this category of citizens; and suggests ways to improve the existing order of compensation and the restoration of the violated rights of the victim. It is proposed that a unified judicial limitation order be implemented.

In modern Russian criminal law and legislation, compensation for harm caused by a crime has taken the position of the leading condition for providing incentives to the perpetrator. At the same time, this process in practice was accompanied by the formation of contradictions to the established doctrine, which, in particular, necessitates the analysis of the recipient’s understanding of compensation for harm in situations where the victim died due to the crime committed, as well as in relation to acts where its signs are completely absent in the norm of the law. Based on scientific research and practical examples, including empirical data obtained by the author, it is noted that exemption from liability should be considered impossible if the victim died as a result of a crime committed against him, since compensation for harm to the victim’s loved ones is not able to fully restore the violated social attitude that protects human life. With regard to acts where there is no clearly defined victim and a socially dangerous consequence reflected in the real world, the author considers it acceptable to encourage the perpetrator in the form of release from responsibility. At the same time, the recipient of compensation for harm in such a situation, based on the material attribute of the crime, is the whole society, and the amount of this compensation should be fixed by law. As a conclusion, the author identified four groups of victims to whom compensation for damage caused by a crime can be addressed in order to receive criminal legal encouragement. With the clarifications and exceptions specified in the work, these should include individuals and legal entities, as well as the state and society.

The prerequisites for the research were a comprehensive analysis of the state of environmental safety in the Russian Federation indicative of negative trends in this area including the compensation for harm caused as a result of committing environmental crimes. The article presents the results of the analysis of the criminal case files related to compensation for harm caused as a result of committing environmental crimes. The research authors noted such a feature of environmental crimes that when they are committed, the damage is caused to objects that have both environmental and economic value. Often, at the same time, environmental damage is caused to a certain extent by economic (property) damage (harm) which significantly complicates the resolution in practice of the issue related to compensation for harm caused as a result of committing environmental crimes. The core problem identified by the authors is that environmental harm from the point of view of its complex manifestation cannot be detected immediately, but after a rather long time; there are cases when it can be completely irreparable. The authors made an attempt to summarise the law enforcement practices of Russian courts related to compensation for harm caused as a result of committing environmental crimes, both at the stage of preliminary investigation and judicial proceedings, consider the types of harm to be compensated and the recovery procedure, identify problems arising during compensation for various types of harm. Based on the research results, measures aimed at improving the mechanism of legal regulation of compensation for harm caused as a result of violation of environmental safety rules were proposed; the need for legislative consolidation of the criteria for determining the amount of compensation for harm by the courts, as well as the need for specialisation of courts considering cases related to environmental offences.

This study aims to determine how the right of compensation for death is transferable to the heirs. It is agreed that harming a human body should warrant compensation. Even if it does not result in financial losses, it is considered an attack on the human body. Nevertheless, the prevailing trend in positive law still hesitates to consider the harm of death in itself, a harm that requires compensation. On the contrary, we find that Islamic jurisprudence considers the matter in its natural and logical setting from a long time ago. It is decided to guarantee and compensate for bodily damages, whether they resulted from deadly or non-deadly injury, regardless of the financial losses and consequences or moral damages that result from this damage. By referring to the Jordanian civil law, it becomes clear that compensation for bodily harm is carried out according to the rules of blood money, whose provisions are derived from Islamic jurisprudence and the provisions of Western laws, especially those related to the inclusion of compensation for the actual damage in its moral and material aspects, and its elements of actual loss and lost profit, which some jurists believe. Contemporary Muslims have what supports it in the rules of compensation in Islamic jurisprudence, especially the rule that there is no harm and no foul. In this study, we address how compensation for the harm of death is transferable to heirs in legal jurisprudence and the judiciary system and how the right to compensation for the harm of death is transferable to the heirs in Islamic jurisprudence. The comparative approach between legal jurisprudence and Islamic jurisprudence has been applied, based on strengthening jurisprudential positions with judicial positions closely related to the subject. The study recommended that the Jordanian Court of Cassation amend its jurisprudence and re-consider the death damage guarantee as material compensation for independent material damage. This should be transferred to the heirs through the inheritance and is claimed under the hereditary lawsuit, as it violated the provision of Article 274 of the Jordanian Civil Code, which authorized the death damage compensation. It also violated what was followed by Islamic civil jurisprudence and comparative judiciary.