INTRODUCTION
Often, as a result of unlawful actions of other people, a person causes physical, moral or material damage. In this regard, it can apply to the court for redress. In fact, the moral harm are all suffering (physical and mental) arising in connection with the violation of individual human rights by another person, encroachments on intangible benefits and some other cases specified by law. Infringement can be directed to the life, health and integrity of one's life, copyright, dignity of the individual, professional and business reputation, family and personal privacy, etc.
Compensation for moral damages under the law shall be paid in cash offender by the court. The amount of non-pecuniary damage caused to declare himself the victim, but it does not mean that it necessarily will be approved by the court. In determining the amount of compensation, the court takes into account the degree of culpability of the offender, the moral and physical suffering of the victim, as well as other relevant circumstances. The court must be guided by the requirements of reasonableness and fairness.
To claim compensation was justified, the actions of the offender should call the victim's psychological reaction in the form of negative feelings and emotions (fear, humiliation, shame, etc.).
For reimbursement does not matter, deliberately committed acts which caused moral damage, or recklessly - in the following cases:
- if the damage caused to life and health of a source of danger;
- if the damage was caused as a result of illegal bringing persons to criminal liability, detention - arrest; unlawful conviction of the citizen; hard labor or detention;
- if the damage arose in connection with the spread of information that defames the dignity, honor and business reputation of a person;
- in other cases, in accordance with the law.
When violations of property rights, compensation for non-pecuniary damage shall be compensated only in cases that are directly provided for by law. An example might be, "Consumer Protection Law", which is used in a variety of circumstances in connection with the conclusion of contracts (lease, sale, renting, various services, etc.).
When the non-pecuniary damage as a result of the dissemination of information discrediting the person, the citizen has a right to compensation regardless of whether the worse opinion of him in reality or not.
Court may take into account a variety of circumstances in order to determine what amount will be paid compensation for moral damages. Judicial practice comes fr om the fact that the financial situation of the person causing the damage, as well as its ability to reimburse must be taken into account. Payments can be made non-
COMPENSATION FOR MORAL HARM
Right to compensation for moral harm
Talk to the fact that the possibility of claiming compensation for moral damage - it is the inalienable right of every citizen, which gives us the Constitution. The Constitution of the full description of all the rights of every citizen in a separate chapter: the second, because it is public record, I will not give here excerpts, but curious readers can read it on their own, especially since it is assumed knowledge of the citizens of the contents of this document. In addition to the Constitution details on compensation of moral harm tells the Civil Code, namely chapter 8 of part 1 of the Code, which defines the position on the basis of which shall be governed by disputes over the intangible benefits and protection.
I want to focus your attention on the fact that compensation for moral damage is possible against a citizen, an individual, a particular person, not the company or the company as a whole. This facet is carried on the simple ground that the firm can not feel anything, because it is an inanimate entity. In the label of any company are the people, and only the non-pecuniary damage, directed against a specific person may be considered by the court. But the assault on the reputation of the company - it is a completely different section of the law.
Way, non-pecuniary damage may be indirect, but also compensable. This applies to criminal proceedings: since the closest relative (parents or spouses and children) can claim compensation for moral damage in monetary terms in the case of death of a citizen in the commission of a crime by the accused (or the offender, after those it recognizes the court).
Grounds for compensation
To deal with the question of what can demand compensation for moral damage, it is necessary to understand what is the meaning of this phrase. Interpretation of non-pecuniary damage set out in Article 151 of the Civil Code: moral harm - physical or mental suffering caused by the actions of a citizen, violating his personal non-property rights or infringing on a citizen belonging to other intangible benefits, as well as other cases (actions) envisaged by the law.
Under other actions meant any penal action, as, for example, the commission of violence or attempted murder of a man is not only a physical fact, but also moral damage caused to a person intentionally. In addition, the application of non-pecuniary damage and meant infringement of any intangible benefits, which are listed in Art.150 of the Civil Code: life and health, personal dignity, personal integrity, honor and good name, business reputation, inviolability of private life, personal and family
COMPENSATION FOR MORAL HARM IN THE USA
The judgment fr om March 17th by the Court of Justice of the European Union (Case C-99/15) has been highlighted since ending a matter that to this date was being widely discussed; if the holder of an intellectual property right can claim, in their claim for damages, not only economic damage that the offender may have caused, calculating in accordance with the license that he should have been paid in the case of having had requested authorization, but also the moral damage that has resulted fr om the alleged illicit use. The thing that is being debated is if you can accumulate both compensations, or, in the contrary, the plaintiff having opted for one, the other is automatically excluded.
This matter had already received a clear answer from the Spanish courts, restricting the possibilities of demanding compensation for infringement on an intellectual property right only to an alternative obligation between the two aforementioned possibilities and systematically denying any cumulative claim.
The ruling given by the Court of Justice answered a matter raised by the Civil Chamber of the Spanish Supreme Court in which basically it requested that said Court, rule on the interpretation of art. 13.1 of the Directive 2004/48 from the European Parliament and of the Council of April 29th, 2004, pertaining to intellectual property rights in relation to the transposition of that precept that was made by the Spanish legislature at the time (Law 19 / 2006) and made it clearer in the current art. 140 of the Royal Legislative Decree 1/1996 of April 12th, approving the recast text of the Intellectual Property Law (Spanish), and later «TRLPI».
In essence, the aforementioned art. 140 TRLPI, states that «1. Compensation for damages owed to the infringed right-holder include not only the value of the loss sustained, but also the earnings that may have ceased in order to obtain the cause of the violation of his rights. The compensatory amount may include, depending on each case, research costs which the plaintiff may have incurred in order to obtain reasonable evidence of the committing of an infraction on which the legal proceedings are based on.
2. Compensation for damages shall be set, at the choosing of the one who was wronged, in accordance with one of the following criteria:
a) The negative economic consequences, including lost profits that the harmed party has suffered and the benefits obtained by the infringer’s illicit use. In the case of moral damage, its compensation will proceed, not yet proven the existence of economic damage. For its assessment, the circumstances of the infraction, the severity and extent of unlawful dissemination of the work will be addressed.
b) The amount that as compensation the wronged party would have received if the infringer would have asked for authorization to use the intellectual property right in question».
FORENSIC PSYCHOLOGICAL EXPERTISE IN CASES OF COMPENSATION OF MORAL HARM IN THE RUSSIAN FEDERATION
The institution of compensation of moral harm caused by the offense or otherwise violation of encroaching on the citizen rights or other intangible benefits is becoming increasingly important, amid, on the one hand, Russian legal reform aimed at increasing the guarantees of fundamental human rights and freedoms, and, on the other hand, increasing criminality on the background of social and economic transformation.
Compensation for moral damage is governed by Art. 151 of the Civil Code of the Russian Federation, wh ere the category of "moral damage" is defined as "a physical or mental suffering", and it states that determining the compensation for moral damage sizes court must take into account the degree of physical and moral suffering related to the individual characteristics of the person suffering the harm.
However undeveloped clear legal representations of the concept of "moral damage", its forms, and rules for compensation calculating leads not only to the complexities of court proceedings and the ambiguity of court decisions, but also to the difficulty in conducting a forensic psychological and comprehensive forensic psychological and psychiatric examination for this kind of cases. Russian courts experience in this sphere is very conflicting, it does not exceed 20 years. In this context, the analysis of international experience, especially in the Anglo-Saxon legal system with more than a century experience of proceedings for damages compensation cases has becomes significant.
An article by Hugh Koch published in this issue is devoted to the problems of increasing the validity and reliability of expert reports relating to compensation for psychological damage due to the actions of others. Under adversary character of the judicial process UK both claimant and the respondent invite their experts, while expertise always сommissioned by a judge or court in Russia. Without describing the procedural aspects of the expert evidence and expert opinion preparation we will compare the technological and content factors of moral damage compensation cases
Principles of forensic psychological and psychiatric expert examination and expert report requirements
Article by Koch indicates expert report requirements as follow: extent, quality; safeness of data used in the expert examination; accuracy and reliability of applicable research methods; recording the examination results according to expert’s ambit. The author recommends to consider a range of expert opinion during the expert study and justify the conclusions thoroughly; to use DSM-V type of diagnostic classifications while diagnosting the mental state of the claimant; to analyze personal history and complaints and to compare claimant history and symptoms with GP records, and
STATUTORY REGULATION ON ASSESSING MORAL DAMAGES IN UKRAINE
Assessing moral damages has been relevant for the Ukrainian law enforcement practice for years. The issue has arisen since the entry into force of the Law of Ukraine “On amending regulations of Ukraine regarding protection of honor, dignity and business reputation of individuals and organizations” dated May 6, 1993, when the Civil Code of the Ukrainian SSR was amended by Article 440 1 on compensation for moral (non-property) damages.
According to Article 440 of the Code, when determining compensation for moral damages subject matter of claim, nature of act of the person responsible for damage, physical or mental suffering of the victim and other negative effects are taken into account.
It should be noted that even at that time the legislator decided to codify the lower lim it of compensation for moral damages in the amount of at least five minimum wages.
The lower lim it of compensation for moral damages of at least one minimum wage per each month of being on remand and being on trial illegally was also set forth by Article 13(3) of the Law of Ukraine “On compensation for damage caused to a citizen by unlawful actions of investigation agencies, pretrial investigation agencies, public prosecution agencies and court” dated December 1, 1994, No. 266/94-VR.
Obviously, the reasons listed in Article 440 of the Code, which had to be taken into account to determine the amount of compensation, are evaluative and subjective, since it is impossible to evaluate in monetary terms the depth of “physical or mental suffering”, “degree” of the person’s guilt, etc. First and foremost, the question at issue is lack of exact criteria and general method of assessing the amount of compensation for moral damage, as the criteria specified by the legislator in view of their confusion do not help the court to justify even to itself the amount of compensation specified in the decision.
In practice it meant that the amount of compensation for moral damages depended on interpretation of the term “compensation for moral damages” by the court.
Since entry into force on January 1, 2004 of the new Civil Code of Ukraine, a new article on compensation for moral damages was introduced. Thus, Article 23 of the effective Code specifies that the amount of monetary compensation for moral damages is determined by the court depending on nature of offense, depth of physical and mental suffering, degradation of abilities of the victim or deprivation of their feasibility, degree of culpability of the person, who caused non-pecuniary damage, if guilt constitutes sufficient ground for compensation, and taking into account other
MATTERS ON COMPENSATION OF MORAL DAMAGE IN THE REPUBLIC OF KAZAKHSTAN
The institute of the compensation of moral damage is one of the most complicated legal institutions, the content and application conditions of which do not have single, stable criteria in research and in the jurisprudence.
The importance of thorough research, clear formulation in the rules of law and their uniformity of application in judicial practice due to the fact that the Republic of Kazakhstan declared as the highest values the human life, rights and freedoms (Constitution of the Republic of Kazakhstan, 1995).
The legislator subdivides all legal relations regulated by law into three categories:
1) Property, the object of which is the good, which is having a value (Constitution of the Republic of Kazakhstan, 1994);
2) Personal non-property relations, related to property, the objects of which have no value, but include property obligations (Constitution of the Republic of Kazakhstan, 2011);
3) Moral relations, which do not have the value of the object (Constitution of the Republic of Kazakhstan, 2011).
Personal non-property goods from birth and by operation of law have one fundamental important feature: they are inalienable from the legal personality of legal capacity of human and non-transferable for any reason (by way of inheritance or civil transaction) to any third parties (Constitution of the Republic of Kazakhstan, 2011).
Only because of this caused by personal non-property benefits and rights harm is a personal non-pecuniary damage (moral damage) to the legally capable individual, which is expressed in a negative psychological and emotional experiences of an individual, in violation of his psychological well-being. Such experiences take form of physical or mental suffering.
The implementation of the constitutional norm, provision of psychological well-being of every person in the Republic of Kazakhstan is the task of the legislator, the law enforcement agencies, the judiciary system and the society as the whole.
The concept of moral damage was specified in Paragraph 1, article 951 of the Civil Code of the Republic of Kazakhstan (hereinafter – CCRK). The legislator defines the moral damage as a "disorder, impairing or deprivation of personal non-property benefits and rights of individuals, including mental or physical suffering (humiliation, anger, depression, shame, despair, physical pain, lameness, discomfort, etc.), experienced (undergo) by victims as a result of the offense committed against him" (Constitution of the Republic of Kazakhstan,2011).
HOW TO FILE A CLAIM FOR COMPENSATION FOR MORAL DAMAGE
To get decent compensation for the moral damage caused to you, you need not only to gather evidence, but also to draw up a statement of claim and file it in the appropriate judicial institution.
1. Make a statement on the basis of the requirements specified in Article 131 of the Civil Procedure Code. If the document does not conform to the standards stated in this article, the claim will not be considered by the court.
2. Statement you can write both by hand and printed on a computer and print through the printer. Application for non-pecuniary damage should begin with the registration of the general data of the document. Write the name of the court to which you are going to apply. If the amount you want to charge less than 100 thousand. P., Then refer to the magistrate, if more, the division of the district court.
3. Write your name, surname, father's name and address. If the claimant is an organization, please indicate the name and address of its location. The application consists of representatives, must contain the same information about him. The address points on which you have the opportunity to receive a notice from the court without delay.
4. Complete information about the respondent in the same algorithmic manner, adhering to the recommendations.
5. Please specify the exact amount of the claim. The size of the amount of money you have the right to establish yourself as the Code does not stipulate specific rules on this subject, but will have to justify it.
6. Give the name of your application. The very text of the statement is made in a free form and must explain to the court what your legal rights and interests have been violated (or are under threat of violation) and that you need from the accused. Heed to what you have to explain how it is mental suffering, and as a result you have been.
7. Describe in detail the circumstances on the basis of which you are filing a claim. For documents you need to attach evidence that can confirm your words. Write a list of the evidence at the end of the statement (if they are attached to the document).Put your signature.
Note
You may request in court the amount of compensation in money and in some cases publication of refutation, a public apology from the defendant.
Helpful Hint
To be sure that both you and the defendant will be promptly notified of the hearing, specify further number of existing phones, faxes, e-mail address.
HOW TO COMPENSATE THE MORAL DAMAGE
Anyone who wrongfully caused moral damage, has the right to his compensation, regardless of the relative magnitude of the moral damage - the neighbor in the stairwell you cursed for anything or son died serving in the army, because of the failure to the commander of his official duties.
You need
- documented facts causing you to moral damage;
- testimony confirming this fact;
- either consent or refusal of the potential defendant to compensation for non-pecuniary damage.
1. In case of failure the culprit causing you the moral damage he has voluntarily reimburse you make a claim and this statement refer to the judicial authority. The statement of claim write clear and simple language, without further discussion and comments. Specifically, specify the meaning of your legal requirements to the defendant, which caused moral damage to you and refuses to reimburse voluntarily. The statement of claim filed before a judicial authority in the place of residence, place of residence of the defendant or your place of causing moral harm.
2. Attach to the claim a written testimony (it is desirable that they have been certified by a notary public) and if available, the medical reports about your health deteriorated as a result of the application of moral harm you.
3. The petition specify the amount which, in your opinion, if you pay it by the defendant reimburse your non-pecuniary damage and fully satisfy you. But do not forget that the final decision on the amount of compensation for moral damage is a judicial authority.
Another way.
Refunds adequate pecuniary damage achieve much more difficult than any other. The reason is that there are no more rules set by the state, although, of course, everything is within the law, and the subjective attitude of judges to the case. Non-pecuniary damage applies to civil cases, and when the solution is always the leading role played by the ratio of judges to the subject of the discussion. Judges are people too, and nothing human is alien to them.
1. Order to achieve what you want, you need to thoroughly prepare for the process. Think how serious you consider yourself a victim. Decide for yourself whether you really want to conceive this process. If you are in any doubt about the appropriateness of this case, do not start it.
2. Examine your right, on the basis that you are going to demand compensation for moral damage .Choose the language of all those that are best suited to support
