Compensation For Moral Damages Research Articles

Problems of the guiltless civil liability of medical workers

The legal regulation of relations in the field of medical services in the Republic of Kazakhstan is dynamic and flexible, and its content complies with modern international standards in the field of human and citizen rights. In these conditions, the main task of the state is to improve legislation regulating civil law relations in the medical field, which is accomplished by increasing the quality of medical care through legal mechanisms to protect the rights of the patient. The problems of application and the possibility of expanding the grounds for guiltless liability in the medical field are relevant, are of great scientific and practical interest, and also considered by the author reasonably and quite timely. The author of the article raises questions that enable medical activity as part of consumer turnover, as well as a source of increased danger, which makes it possible to apply the norms of increased responsibility to relations that are associated with its implementation. The article also substantiates the need to reform the norms on compensation for moral damage in connection with its infliction to the patient, which will ensure the right to protection of infringed civil rights most fully.

Reimbursement or compensation for damages caused by war: the civil law aspect

The article is devoted to the study of the correlation between the concepts of reimbursement and compensation for damages, including during the war. The author highlights the issue of distinguishing between the concepts of reimbursement and compensation as synonymous categories. It is determined that the term “compensation” is broader in scope and includes the narrower term “reimbursement”, as well as additional features – remuneration or payments. It is proposed to change the use of the established phrase “reimbursement of moral damage” to “compensation for moral damage” due to the impossibility of accurate determination of the amount of reimbursement due to the non-property component and the need to compensate a person for a certain amount of compensation for suffering, especially in wartime. It is established that the categories of “damage” and “losses” are not identical. The characteristic features of both concepts are analysed. Losses are defined as material losses which should be determined in monetary terms. Damage is a broader concept and is considered to be the negative consequences of unlawful behaviour towards a certain entity in connection with the violation of its rights. Damage can be tangible or intangible, which is not inherent in losses. It is proved that damage and losses are interrelated, i.e. damage may include losses, but only in respect of property damage. It is emphasised that losses are defined as losses due to damage or destruction of property or losses which a person could have suffered. It is determined that the definition of “non-pecuniary damage” contains a reference to the fact that it is also disclosed as losses of a non-property nature. The article analyses and notes that losses are deprivation of a person of a certain benefit. Non-pecuniary damage is inflicted on a person in non-property terms and cannot be considered losses. The particularities of reimbursement of damage caused by war are considered. The article establishes the absence of a single mechanism for reimbursement of damages caused by violation of their rights as a result of armed aggression. The need and possibility of reimbursement, in addition to property damage, of moral damage caused by war is revealed. It is emphasised that today the State, either independently or with the involvement of international partners, provides compensation to victims of war.

LEGAL REGULATION OF ECONOMIC LIABILITY ACCORDING TO THE LEGISLATION OF UKRAINE

The article analyzes legislative acts that are the basis of economic and legal responsibility. Attention is focused on the fact that issues of economic and legal responsibility are regulated both by codified acts: The Economic Code of Ukraine, the Civil Code of Ukraine, and special laws. The Economic Code of Ukraine has a section “Liability for offenses in the field of business”, which regulates relations regarding compensation for losses in the field of business; reveal the concepts, sizes, types and procedure of applying fines, operational-economic sanctions and administrative-economic sanctions. The Civil Code of Ukraine contains a number of chapters and articles devoted to compensation for damages; compensation for moral damage; protection of property rights; penalty, withholding, etc. as a form of economic and legal liability. The Code of Ukraine on Administrative Offenses regulates the general procedure for prosecution for offenses in the field of business. Special legislation of Ukraine regulates certain areas of economic activity and liability for violation of its norms, for example: liability for offenses in the field of urban planning; responsibility for untimely fulfillment of monetary obligations; responsibility in the field of public procurement; responsibility for the use of low-quality and dangerous products; responsibility for violation of banking norms; responsibility for violations in the field of consumer rights protection; responsibility for violation of license terms of economic activity, etc. Key words: legal regulation, legal responsibility, administrative and economic sanctions, licensing of economic activity, public procurement, offense, fine, penalty, reparation, detention, operational and economic sanctions, economic competition.

The problem of defining moral damage caused to the employee

Compensation for moral damage is one of the rights guaranteed by the Basic Law of Ukraine; reimbursement of this type of harm is one of the ways to protect labor rights as well. One of the main problems at the moment is the absence of the enshrined concept of moral damage in the Constitution and the Civil Code of Ukraine (this institution is of a civil law nature). Consequently, the aim of the Article is to consider how foreign and domestic scientists approach the term “moral damage” in general and in labor relations in particular and to provide our own definition of this category. The following methods were used when preparing the Article: dialectical, monographic, historical, normative and dogmatic, sociological, legal modeling. Research results. The origin of the term “moral damage” in the world practice and in our country has been investigated. It has been examined, what is moral damage in Ukrainian legislation, as well as in the legal instruments of some other States (Italy, Philippines, El Salvador, Kazakhstan, UAE). The approaches to the concept of moral damage in general and in labor relations in particular have been studied based on the works of foreign and Ukrainian researchers, relevant legal acts of our and other countries, court practice. It has been established that there are three approaches to defining the term of moral (non-property) damage caused to an individual in the theory of civil law. We agree with the opinion by researchers who believe that the fact of establishing moral, mental or physical suffering is not enough – it is necessary to have losses of non-pecuniary nature or negative consequences of a moral or other character. The author’s definition of moral damage as well as moral damage caused to the employee as a result of violation of his (her) labor rights has been proposed.

Компенсация морального вреда в связи с проведением в жилище обыска, выемки, признанных судом незаконными

The article provides the author’s comments on the application of certain clarifications of the resolution of the Plenum of the Supreme Court of the Russian Federation on compensation for moral damage in connection with a search of a home, as well as seizures declared illegal. Denotes the judicial procedure for making decisions on the production of compensation payments to eliminate moral damage.

Moral Damage Compensation to Victims of Crimes in the Context of Contradictions Existing between Higher Courts

The issues of applying the rules for moral damage compensation as a way to protect the rights of victims of crimes are traditionally among the most controversial. The problems of establishing the grounds for compensation, as well as determining its size, corresponding to the degree of fault of the offender, the nature of the victim’s suffering and other noteworthy circumstances, throughout the validity of the norms of the updated Civil Code of the Russian Federation, attracted the attention of not only representatives of civil doctrine, but also of higher judicial instances. In most cases, the conclusions formulated by the latter were in full compliance with the norms of civil legislation, they did not contradict each other and in their entirety ensured uniformity in the application of provisions on compensation for moral damage and due protection of the rights of injured citizens. However, an analysis of the acts of the Supreme and Constitutional Courts issued over the past two years indicate that there are significant contradictions in their approaches to determining the grounds for the admissibility of compensation and the specifics of its application, which is increasingly reflected in regional and appellate judicial practice. Thus, in contradiction with the established positions of the Supreme Court are the provisions formulated by the Constitutional Court in Resolution No. 45‑P of 26.10.2021, where the latter, in essence, defined the presumption of moral suffering in a person when the crime against him is committed, as well as in Resolution No. 7‑P of 02.03.2023, where the Constitutional Court provided for the possibility of compensation of moral harm in favor of a person who, by definition, is not able to bear these sufferings — a child who was not born at the time of his parent’s death. Such a narrative, of course, cannot be evaluated positively and needs a thorough doctrinal assessment.

ЮРИДИЧЕСКАЯ ХРОНИКА

The July Legal Chronicle presents the opinions of experts on the issues of legal assessment of the events of the armed rebellion on 24 June 2023, economic sanctions and ways to protect against them by means of corporate law, the positions of the Constitutional Court on compensation for moral damage that occurred before birth, and the procedure for observing the preemptive right when selling objects of shared ownership at auction, and on the taxation of the proceeds from the sale of the subject of pledge.

ЮРИДИЧНІ ПІДСТАВИ, ФОРМИ І ПРИНЦИПИ ВІДШКОДУВАННЯ ЗБИТКІВ, ЗАВДАНИХ УКРАЇНІ ВІЙСЬКОВОЮ АГРЕСІЄЮ РОСІЙСЬКОЇ ФЕДЕРАЦІЇ

The aggressive war waged by the Russian Federation caused significant material losses to Ukraine. According to preliminary estimates of the World Bank, as of the beginning of December 2022, the cost of the post-war reconstruction of Ukraine amounted to 500-600 billion euros, while the full recovery of Ukraine requires the development of a large plan. In this connection, there is a need to solve the problem of real compensation for damages caused to Ukraine by the aggressive war waged by the Russian Federation, which is new and insufficiently researched by representatives of legal science. Based on the analysis, it was concluded that the Charter of the United Nations; The text of the articles on the responsibility of states for internationally wrongful acts, adopted by the Resolution of the General Assembly of the United Nations Organization dated 12.12.2001 No. 56/83, which is a source of customary international law; the interim decision of the International Court of Justice of the United Nations of 16.03.2022 on the immediate halt of the military invasion of the Russian Federation on the territory of Ukraine; The resolution of the General Assembly of the United Nations “Aggression against Ukraine” dated 02.03.2023, which condemns the military invasion of the Russian Federation into Ukraine, together create the prerequisites for the recognition of all military actions committed on the territory of Ukraine by the armed forces of the aggressor state, such that violate current international law and provide grounds for imposing on the Russian Federation the obligation to compensate all damages caused by its military aggression. It was emphasized that the creation of an international regulatory framework regarding the responsibility of the Russian Federation should end with the adoption of a multilateral agreement with the participation of Ukraine as a state that suffered from the armed aggression of the Russian Federation, and other states that agree to search for and confiscate the assets of the Russian Federation, with the aim of using them for real compensation for damages. It is substantiated that the main types of responsibility of the Russian Federation include compensation for property and moral damage; direct compensation for damages caused by the internationally illegal actions of the Russian Federation will take place in the form of restitution (substitution), compensation and satisfaction both separately and by combining them, as well as by charging interest; the decision on the distribution of monetary compensation for damaged or destroyed objects of immovable and movable property, as well as compensation for moral damage and lost profit to the injured persons should be carried out in compliance with the principles of social justice and proportionality.

Новая методология медико-юридических аспектов компенсации морального вреда по спорам с пациентами

The authors consider the explanations of the Supreme Court of the Russian Federation contained in the new Resolution on compensation for moral damage, including items affecting compensatory aspects in the provision of medical care and harm to the health of patients. Changes in the policy of the Supreme Court of the Russian Federation on the problem under consideration are shown. An assessment of the possible consequences of the explanations of the Supreme Court of the Russian Federation in relation to citizens (patients) and medical organizations, prospects of law enforcement practice based on the provisions of the new Resolution is given.

БАЗОВЫЙ ДИСКУРС ДЕЛИКТНОГО ПРАВА В КОНТЕКСТЕ РАЗЪЯСНЕНИЙ ВЕРХОВНОГО СУДА РФ О КОМПЕНСАЦИИ МОРАЛЬНОГО ВРЕДА

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.

Procedural order of consideration of cases on compensation for moral damage

Procedural order of consideration of cases on compensation for moral damage

Continuity of ideas of the Labor Code of the RSFSR of 1922 by Soviet and post-Soviet labor legislation

The article analyzes certain provisions of the Labor Code of 1922, which determined the vector of development of labor legislation in the period of changing political, economic and social conditions. The need for adopting the Labor Code in 1922 was caused by the transition of the Soviet state to a new economic policy. Since 1922, an accelerated process of updating labor legislation began. Some of the norms underlying the Labor Code of 1922 and the Labor Code of 1971 have been reflected and developed in the current Labor Code of the Russian Federation, e.g., the rules on terminating employment contract by parties’ agreement, differentiation in the legal regulation of labor, labor discipline, and others. The article investigates the legal position of the Constitutional Court of the Russian Federation, which had an important impact on the development of sectoral legislation, including, on recognizing part 1 of Article 392 of the Labor Code of the Russian Federation regarding the period for applying for moral damage compensation as contradicting the Constitution. Explaining the provisions of labor legislation, the Supreme Court of the Russian Federation also pays attention to the enforcement of provisions on compensation for moral damage in labor disputes. The article analyzes amendments to Article 263 of the Labor Code of the Russian Federation, allowing to conclude that those labor law norms continue to be updated.

ПРОГНОЗИРОВАНИЕ ДЕЙСТВИЙ ПОТРЕБИТЕЛЯ ПРИ НЕНАДЛЕЖАЩЕМ ОКАЗАНИИ СТОМАТОЛОГИЧЕСКОЙ УСЛУГИ

Subject. Settlement of disputes between consumers and providers of dental services related to their inadequate quality is a complex multifactorial problem. The successful solution of this problem can be helped by a predictive algorithm of consumer actions, built taking into account three important factors: 1) the time for making a decision about the nature of consumer actions; 2) the leading motive of the consumer when he decides on the nature of his actions; 3) the most likely options for the consumer to protect their rights in a dispute related to the improper provision of dental services.
 Goal. Formulation of proposals for the effective settlement of disputes between medical organizations and citizens based on a predictive algorithm for consumer actions in case of improper provision of dental services.
 Methodology. The actions of patients in resolving a dispute related to the improper provision of dental services were studied; the methods of questioning, variational statistics are applied in the work.
 Results. A statistically significant difference was found in the responses of patients and dentists about the factors in the settling of disputes associated with the improper provision of dental services. In this regard, two predictive algorithms for consumer actions are presented. The first corresponds to the patient's real intellectual and volitional representations. The second reflects the view of doctors, which does not match them.
 Findings. Dentists should strive to effectively resolve the dispute related to the improper provision of services within 2–3 days (during the balance of the patient's emotional and rational moments of consciousness). The leading motive of the consumer is to receive compensation for the harm caused to health and compensation for moral damage, therefore, in order to effectively resolve the dispute, it is important to focus on agreeing on an adequate amount of the corresponding compensation. Doctors in the course of direct negotiations with the patient should ensure accessibility to any format of communication, including the use of modern information and communication technologies.

Damage compensation mechanism in the criminal process

It discusses the problematic issues of consideration and resolution in a criminal case of a civil claim for compensation for property damage or compensation for moral damage caused by a criminal offense. The essence and content of the "civil claim in the criminal process" is determined, the advantages are noted, and the problems of a civil lawsuit in the criminal process of Ukraine are discussed. The authors propose to consider the filing of a civil claim as a right of the victim, corresponding to the obligation of the criminal prosecutor's office and the court to take measures for the timely reparation of damages. Some reasons are revealed that complicate the implementation of the principle of inevitability of civil liability for a crime committed simultaneously with the procedure for convicting the perpetrator. As a conclsuion se proposes to develop new approaches to the institution of a civil lawsuit in the criminal process of Ukraine, contributing to the improvement of the activities of the criminal prosecution authorities and the court to restore the violated civil rights of victims of crime.

Some issues of application of legal norms by courts on compensation for moral damage caused by illegal actions of state bodies, local self-government bodies and their officials

Some issues of application of legal norms by courts on compensation for moral damage caused by illegal actions of state bodies, local self-government bodies and their officials

Some issues of application by courts of the norms of legislation on compensation for moral damage caused by illegal actions of state bodies, organs of local self-government and their officials

Some issues of application by courts of the norms of legislation on compensation for moral damage caused by illegal actions of state bodies, organs of local self-government and their officials

Об определении оснований неправомерности использования изображения гражданина (по данным правоприменительной практики по статье 152.1 Гражданского кодекса Российской Федерации)

Relevance. The article analyzes the problems of civil law protection of human images. Despite the attention to this topic of the scientific community, in law enforcement practice there are many discussion issues related to the application of the provisions of Article 152.1 of the Civil Code of the Russian Federation on the protection of the right to image inviolability. The article sets out the results of the analysis of court decisions on claims for declaring the use of the image illegal, collecting funds and compensation for moral damage, on the protection of honor and dignity, courts in accordance with Art. 152.1 of the Civil Code of the Russian Federation, allowing to conclude that there are different approaches to assessing the same grounds for the illegality of using the image of a citizen. The purpose of the study is to identify and clarify the grounds for the misuse of the image of a citizen, according to which the courts decide on the existence of a violation of the right to defend it. Objectives: to analyze the decisions of the Constitutional Court of the Russian Federation, leading explanations of the Supreme Court of the Russian Federation, Russian judicial practice in cases on the protection of the right to an image of a citizen and to update the content of the grounds for the unlawful use of an image of a citizen that have developed in judicial practice. Methodology. In the process of working on the study, dialectical-materialistic, formal-legal, system-analytical methods, as well as methods of analysis and synthesis were used. The results of the study are applied in nature with elements of scientific novelty in the conclusions obtained and are aimed at improving the quality of law enforcement practice and achieving uniformity of decisions when considering claims for the protection of the right to inviolability of someone else's image. Conclusion. The study makes it possible to assert that there was no uniform practice in cases of protecting the right to portray a citizen. The same basis for the misuse of someone else's image by the courts is interpreted in two ways, which requires clarification of such cases by the highest court.

Functional approach to the design of norms of Civil and Entrepreneurial Law

This article examines the regulatory nature of the norm of law. Based on a functional approach to the construction of legal norms, it is proposed to describe the norm as a function in which the legal consequences embodied in dispositions or sanctions are dependent on certain circumstances whose properties are reflected in the hypothesis. In particular, the functional dependence of the legal consequences on certain circumstances is shown by the example of doctrinal approaches to determining the amount of compensation for moral damage by the formula. The author substantiates that the valuation concepts inherent in modern law can be used to describe functional dependencies as coefficients that are estimated by the law enforcement within the given ranges of values. It seems that a functional approach to the construction of legal norms will significantly affect law enforcement practice. Formulas of functional dependencies can form the basis of computer programs, which will automatically determine for the law enforcer the totality of relevant variables to be evaluated, as well as the totality of legal consequences depending on the specific circumstances of the case.

Theoretical and Practical Features of the Compensation for Harm Consideration by Filing a Civil Claim in Criminal Proceedings

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.

Seizure of property: development of legislation and improvement of law enforcement practice

Questionable questions are studied on the annulment of the measure of procedural coercion applied in the form of seizure of property in the event of termination of a criminal proceeding (criminal prosecution) with voluntary compensation for damages caused by a crime. The authors propose to specify the cases in which it is possible to cancel the seizure of property, that is, in case of expiration of the period of detention imposed on the property established by the court, or refusal of extension, as well as in cases of termination of the criminal case (criminal proceedings) and the refusal of the plaintiff of the declared civil claim. Attention is also given to the issues of seizure of property to compensate for moral damage caused by a crime. Based on the results of the consideration of this issue, it is concluded that the use of a measure of procedural coercion in the form of a seizure of property is possible not only for the purpose of compensating for property damage but also to create legal guarantees. Guarantee compensation for moral damage caused by a crime, as specific additions to the current criminal procedure law in Russia are justified.