Amount of compensation for moral damage: how to reduce uncertainty and increase efficiency?

What is moral damage or moral harm - let’s define the concepts

According to the law, moral harm is usually understood as physical and/or moral suffering that was inflicted on a person through certain directed actions of any party in violation of the non-property rights of this person, or through actions that imply an attack on other intangible benefits belonging to him the same (Article 151 of the Civil Code).

The moral suffering of a citizen (when formulating the term “moral harm”, Article 150 of the Civil Code) means the negative feelings experienced (shame, humiliation, anger, despair, etc.) caused by the following circumstances:

1. The encroachment, first of all, is the life and health of a citizen.
2. To his honor and dignity.
3. Violation of confidentiality of private, family life, as well as medical confidentiality.
4. Infringement of good name and business reputation.
5. Violation of personal integrity, as well as the inviolability of the home.
6. Restrictions on choosing a place of residence.
7. Ban on freedom of movement.
8. Copyright infringement.
9. Unlawful restriction/deprivation of liberty.
10. Slander.
11. And an encroachment on other benefits belonging to a citizen of the Russian Federation from birth.

All these intangible benefits are guaranteed by the Constitution of our country, and if they are encroached upon, every citizen has the right to seek protection in court. Upon the death of a citizen whose rights have been infringed/violated, the right to protect these rights (with all the ensuing consequences) passes directly to the heirs.

Regulatory acts are legislative instruments for protecting the rights of citizens. As regulations that regulate the process of compensation for moral damage (that is, the grounds for compensation for harm), the following can be noted:

1. Civil Code of the Russian Federation: articles 12, 151, 152, part 5, 1099-1101, 1123, 1251 and other articles of the Civil Code of the Russian Federation, applicable to each case separately.
2. Chapter 25.3 of the Tax Code of the Russian Federation (on state duty when collecting moral damages).
3. Labor Code of the Russian Federation: articles 3, 237.
4. Article 30 of the RF IC.
5. Code of Administrative Offenses of the Russian Federation: Article 4.7.
6. Code of Criminal Procedure of the Russian Federation: articles 42, 44, 136.
7. Family Code of the Russian Federation: Article 30.
8. Federal Law “On Personal Data”: - Article 17.
9. Federal Law “On Information, Information Technologies and Information Protection”: Article 17.
10. Federal Law “On the procedure for considering appeals from citizens of the Russian Federation.” Article 16.
11. Federal Law “On Advertising”: Article 38.
12. Federal Law “On Countering Terrorism”: Article 18.
13. Federal Law “On compulsory social insurance against accidents at work and occupational diseases”: Article 8, paragraph 3.
14. Federal Law “On Basic Guarantees of the Rights of the Child in the Russian Federation”: Article 23.
15. Federal Law “On the Fundamentals of Tourism Activities in the Russian Federation”: Article 6.
16. Federal Law “On Environmental Expertise”: Article 34, paragraph 2.
17. Federal Law “On Protection of Consumer Rights”: Article 15.
18. Federal Law “On the Mass Media”: Article 62.
19. Resolutions of the Plenum of the Supreme Court of the Russian Federation: “On the practice of consideration by courts of cases on the protection of consumer rights”, “Some issues of application of legislation on compensation for moral harm”, “On the application by courts of the Russian Federation of the Labor Code of the Russian Federation”, “On judicial practice in cases of protection of honor and dignity citizens, as well as the business reputation of citizens and legal entities.”
20. Other laws, the provisions of which may apply to special cases.

The nature and degree of physical and moral suffering of the victim

When determining the degree and nature of moral and physical suffering, the court must take into account:

• individual characteristics of the victim (gender, health status, age);
• the events that occurred as a result of which the damage was caused;
• the behavior of the accused after committing the criminal acts (whether he called an ambulance, fled or remained at the scene of the incident, tried to help himself, and so on);
• the behavior of the victim during the crime.

The nature of suffering and moral harm in criminal law refers to the content of the former. This could be, for example, suffering caused by the death of a relative or physical pain resulting from beating. The degree of suffering refers to its depth. That is, how much the victim was worried about what happened, and how serious the offense was.

Taking the latter into account, as an example we cite the following sources of the right to compensation:

• death of a person. If someone was killed as a result of a crime, then a fairly large amount can be recovered. But here the presence or absence of intent on the part of the accused to cause death will play an important role. When a person is killed intentionally and tried under Part 1 of Art. 105 of the Criminal Code of the Russian Federation, then they collect an average of 800 thousand - 1 million rubles. and more;
• grievous injury to health (Article 111) is also a serious offense. But, at the same time, it is worth considering that causing significant harm to health and killing are two different things. Therefore, in the case of, for example, even serious beatings, the amount of compensation will be less than in the case of death. But here, too, everything is not so simple. When murder occurs through negligence or in a state of passion, the accused is no longer tried under Art. 109 or 107 of the Criminal Code of the Russian Federation. And these are less serious articles than Art. 111;
• in case of infliction of physical pain that did not cause a significant deterioration in health (Part 1 of Article 116), compensation can also be recovered. But the amount will be small, usually 10-50 thousand rubles.

At a minimum, non-material damage is compensated for violation of privacy or home. In most cases, the same applies to libel (but not always).

Do you have grounds to file a claim for compensation for moral damage?

Before filing a lawsuit, you should find out whether you have enough grounds for this lawsuit, and whether it makes sense.

1. Decide whether your case falls under the term “moral damage.” If you do not have specific legal knowledge, it is recommended to use the services of professionals.
2. Determine whether the moral damage caused to you was intentional or the result of negligence (an accident).
3. Analyze whether you can prove that you suffered moral harm. Did the defendant's actions result in long-term emotional symptoms, did you seek medical help, did you have to take certain medications to improve your condition, are there any witnesses to your depression, etc.
4. If the amount of your claim is significant, it makes sense to think about finding a good lawyer. If the amount is insignificant, it makes sense to go to court only if you are sure that you will win the case, and the issue is of a fundamental nature. Be aware of legal costs, loss of time and effort.

The degree of guilt of the victim

When assessing the degree of guilt of the victim, 4 main criteria are taken into account:

• the presence of intent (when the victim either knows about the consequences or even provokes them). If such intent is seen and proven, then there can be no talk of any money;
• the fact of gross negligence of the victim (in such circumstances, less money will be recovered);
• immoral, illegal behavior. Despite the fact that such circumstances, from a moral and ethical point of view, can provoke the causer of damage, when considering such cases they are not taken into account, since they do not carry intent behind them (again, this is a very controversial point);
• lack of guilt of the victim (a circumstance that does not make it possible to reduce the size).

How to file a claim for moral damages correctly - complete instructions

The most relevant points in the process of filing a claim:

1. Pre-trial dispute resolution. Before filing a lawsuit, contact the offender directly. Preferably, in writing and via mail, not forgetting to describe the circumstances, requirements and a warning about your filing a claim in case of non-fulfillment of the requirements. If the issue cannot be resolved peacefully, the only option left is to file a lawsuit.
2. When can you file a claim? According to Article 208, paragraph 1 of the Civil Code, there is no limitation period for these requirements. That is, you can file a claim at any time.
3. Where to submit? To the district court at the defendant’s place of residence. And to the regional court - in case of moral damage received as a result of the crime.
4. Statement of claim. It should be drawn up correctly, taking into account all the requirements and rules. The essence of your requirements and the circumstances that are the basis for payment of compensation must be as clear and evidential as possible.
5. From whom should I demand compensation? The offender can be either an individual or persons “in the performance of...”. In the 2nd case, responsibility falls on the state/structure or organization, in particular, the state itself.
6. Do you need a lawyer? Of course, at the initial stage - when drawing up a claim - the help of a specialist will not hurt, but the result of the hearings will largely depend on the immediate degree of guilt of the offender. An exception is the grounds in which his degree of guilt does not play a role (harm caused by sources of increased danger, slander, attack on honor and dignity, dissemination of knowingly false information, etc.).
7. State duty - do I need to pay? Yes need. There is no exemption from paying fees when considering such claims (note: for compensation for moral damage) (Chapter 25.3 of the Tax Code).
8. How long does it take for the defendant to pay compensation? The claim is usually satisfied by the court only if it is absolutely well-founded, which in the case of moral damage is a very difficult task. As for the terms of compensation, they are negotiated during the trial, based on the financial condition of the defendant.

What documents must be attached to the claim?

In most cases, the statement of claim is drawn up in triplicate. One copy remains in court, the other two are handed over to the parties to the lawsuit.

The application must be accompanied by:

1. Evidence that will confirm the legality of the plaintiff’s claims and establish the defendant’s guilt. As evidence, you can use written testimonies of witnesses, experts, as well as data from video and photo media (for example, from outdoor CCTV cameras).
2. A document confirming payment of the state duty.
3. If the interests of the plaintiff are represented by a lawyer, it is necessary to attach a copy of the power of attorney under which the specialist acts.
4. Calculation of the amount of recovery.
5. Documents confirming that the plaintiff has made attempts to resolve the conflict pre-trial (claim addressed to the guilty party, copies of complaints to higher authorities and responses from these organizations).

Important: if a person who claims a violation of consumer rights goes to court, he is exempt from paying state duty.

How to correctly assess the amount of moral damage?

Calculating moral damages is always a difficult matter. The decision on the amount is made by the court, but the amount indicated by the plaintiff in the claim should not look like a desire to improve his well-being. That is, it must be adequate to the suffering endured.

It is recommended to resolve the issue of the amount together with an expert in such cases. Remember that the case may be decided in favor of the defendant. According to Article 1101, paragraph 1 of the Civil Code, compensation is carried out exclusively in monetary form.

What do you need to remember when calculating the amount of the claim?

1. The total amount should not exceed 720 minimum wages.
2. Use common sense when assessing harm so that the court does not doubt your adequacy.
3. Ask what the defendant’s financial situation is. If the amount you indicate is beyond his means (not within his wallet), then it will not be approved. The court will also take into account other circumstances (disability of the defendant, advanced age, pregnancy, etc.).
4. Analyze the statistics of similar cases in the courts to understand how much you can count on.

What influences the determination of the amount

In order to correctly assess the amount of moral damage, it is necessary to keep in mind the provisions set out in Part 2 of Article 151 of the civil legislation. Moral damages for the court can be calculated taking into account the following provisions:

• the degree of guilt of the person who committed the unlawful act;
• suffering caused to the victim (both moral and ethical are taken into account);
• personal characteristics inherent in the victim;
• other circumstances.

Collection is made based on the listed aspects. In each specific case, the final decision on the case remains with the court. The person who has suffered from the actions of the perpetrator is obliged to independently present the evidence base on the basis of which the amount of damage will be assessed. You will need to provide the court with the documentation outlined above.

Court decision on compensation for moral damage – how to conclude the case?

At the preparatory stage for the hearing, the judge may suggest that you and the defendant go to a “peace settlement.” If the settlement agreement does not contradict the interests of the parties and the law, it is approved by the court.

The terms of this agreement are recorded in the minutes, after which they are signed by both parties, and a court ruling is made to terminate the proceedings.

Pros of the settlement agreement:

1. Saving nerves, finances and time.
2. Immediate entry into force of the agreement (immediately after its announcement). Which, accordingly, obliges the parties to its immediate execution.

Minuses:

1. This agreement deprives the parties of the opportunity to go to court again with the same demands - by leaving their signatures on the settlement agreement, they waived further claims against each other.

Repeated claim - can it be filed in this case?

When a court decision comes into force (Article 209, Chapter 16 of the Code of Civil Procedure) and if an appeal has not been filed, the right to re-claim with the same demands and on the same grounds is canceled. As well as the right to challenge facts and legal relations already established by the court in other courts.

In what cases is a repeated claim permissible?

1. New circumstances have emerged in favor of changes in the amount of the claim. Article 209 of the Code of Civil Procedure.
2. The judge returned the statement of claim due to, for example, the plaintiff’s failure to appear. Article 223 of the Code of Civil Procedure.

Methods of influencing a negligent defendant

The decision was made in favor of the plaintiff. The defendant does not pay, hides and delays the deadline in every possible way. What should I do?

1. Considering that there are no fixed deadlines for the execution of a court decision (Federal Law on Enforcement Proceedings), all that remains is to contact the bailiffs with complaints . If the defendant hides his income, and the bailiffs can discover this, the defendant will be held accountable.
2. If this doesn’t help, you can immediately write a complaint about the inaction of your bailiff to the prosecutor’s office or appeal the bailiff’s actions in court.

Is it possible to index compensation?

According to civil law, the payment may be indexed. This provision is contained in Article 208. Despite this, in practice the application of this norm is very difficult, not only for plaintiffs, but also for law enforcement officers.

The court must determine the amount of indexation based on the application received from the injured party. The victim has the right to request indexing without paying a state fee.

Important! Indexation is not associated with establishing guilt in the debtor’s actions. The right in question is subject to the statute of limitations, which means that the amount will be calculated on the basis of indices that were established for the last three years preceding the application to the court.

Degree of guilt of the accused

The degree of guilt of the accused must be assessed, provided that the crime became the basis and reason for compensation for damage. If the degree of guilt is subject to assessment, then the court will take into account the subjective side of the crime (the form of guilt, for example, as well as the role of each accomplice in the joint commission of an offense).

When determining the size, intent is no less important. If he was absent, the compensation will be reduced.

Sometimes the degree of guilt cannot be assessed at all. That is, the money is collected in any case (Article 1100 of the Civil Code of the Russian Federation).