The Removal of Damage Caused by the Necessity: Theoretical Basis and Judicial Practice in Ukraine

Abstract

The article is devoted to various issues related to the removal of damage caused by the necessity. We have determined the place of removal due to lawful actions in the system of non-contractual obligations. The history of the institution of necessity and the definition contained in the current Civil Code of Ukraine is given. The concepts provided in Ukrainian Civil and Criminal legislation are compared. The article highlights the features of the emergence of necessity, in particular the mandatory presence of real and existing danger, as well as the special situation of committing actions. The question of what exactly can become a source of such danger is studied based on judicial examples. It is specified that the actions causing harm are lawful if they have the following composition: special purpose, proactive behaviour, the object of harm, timeliness, and proportionality. The subjects from which damage can be recovered in this case are allocated. It is determined that they can only be natural or legal persons. Examples of judicial practice for each of the cases are given, with examples of problematic issues that may arise during the appointment of the recovery. In the end, there is a certain contradiction of views regarding the necessity and possibility of removal of moral damage in a situation when the guilty person acted because of necessity.