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§4. Principles of obligations owing to injury

Positions of chapter 59 GK the Russian Federation is the body of rules, obligations relations regulating a separate kind - arising owing to injury. There is nothing surprising that branch and podotraslevye principles are the supervising beginnings for considered structural division of a liability law.

So, in some norms of chapter 59 GK the Russian Federation is shown contract freedom. In particular, one of basic positions of the law of torts is the rule that the contract the duty prichinitelja harm can be established to pay indemnification over harm compensation. The legislator, establishing legal regulation of the specified group of obligations, protects weakness. For example, the additional rights, in comparison with other subjects, are established, for the child born after death of the supporter (item 1089 GK the Russian Federation), the consumer (§ 3 chapters 59 GK the Russian Federation).

At the same time in the literature it was specified in impossibility of application of a principle of freedom of the contract to obligations owing to injury. On the basis of it relations from contracts and from torts [267] were contrasted. Obviously, given kinds of obligations have certain differences. Nevertheless, hardly it is possible to agree with full negation of freedom of the contract in tort liabilities. The similar conclusion, first, mismatches the current legislation (item 1064 GK the Russian Federation), and secondly, breaks the rights of the creditor (victim) which, in our opinion, should have the right to conclude the contract with prichinitelem harm if it corresponds to its interests.

Nevertheless analysed in §1-3 chapters 2 of the present work liability law principles are, first of all, bases of the relations arising from the contract. For fuller studying of object of research it is obviously necessary to reveal and consider principles of obligations owing to injury. The specified principles are not to the full analysed in civil law. Some aspects of the declared problematics are mentioned by G.A.Sverdlykom who offers two beginnings of such relations: inadmissibility of injury and the full indemnification of harm [268]. We will agree with the offered opinion. Similar principles are characteristic and for the modern right. Meanwhile hardly their list is limited to only two categories.

V.A.Tarhov specified in civil responsibility fundamental principles: principles of legality, inevitability of responsibility, equality of the parties, combinations of personal interests with public [269]. The listed fundamental ideas are characteristic for all kinds of responsibility and hardly they can be considered in quality institutsionnyh the principles which are coming under to studying within the limits of the present paragraph.

In the civil literature some other principles of obligations owing to injury are resulted also. So, O.V.Bogdanov suggests «to fix a principle of a presumption of causing of moral harm at fulfilment of the actions breaking personal non-property (and in cases, specially statutory, and property) the rights of the citizen or encroaching on other intangible benefits belonging to it» [270 [271]. We will agree that the given rule it is necessary to specify in GK the Russian Federation, but hardly it should be considered as the beginning which is basic for all law of torts.

It is thought, that the phenomenon offered O.V.Bogdanovym is necessary for considering exclusively as a presumption, but not as a principle.

Separate researchers allocate a fault principle as the basis from -

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vetstvennosti. The similar conclusion became, first of all, on the basis of norms of the Soviet legislation. Moreover, the position that duty presence to compensate the harm caused by a source of raised danger expressed, irrespective of fault of its owner does not belittle value of a principle of fault. As wrote N.S.Malein, «if the law demands from the owner of a source of the raised danger of special vigilance and care, and at infringement of this duty makes responsible it is necessary to come to conclusion inevitably, that such responsibility is based on a fault principle» [272 [273] [274]. The given judgement is represented disputable. The duty on compensation of the harm caused by a source of raised danger, can be imposed on its owner even in case of special vigilance and care of the last.

A.V.wol, considering a liability principle, specifies, that the given phenomenon «is inherently one of displays more the general beginning of the civil legislation regulating imushche -

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stvennyj a turn, - a principle of independent will ». The similar conclusion has been made to means of the analysis of positions of item 1, 9 GK the Russian Federation from which follows, that« the proprietor has the right to dispose independently, independently of the property and the non-property rights, not causing thus harm imu -

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shchestvu other persons (it is allocated by us - A.V.) ». It is difficult to agree with the resulted judgement. An interdiction for property tort of other persons - not reflexion of a principle of liability, and other beginning - inadmissibility of injury. It is necessary for considering as private display of an autonomy of will of participants of the civil circulation.

Allocation of a principle of fault in obligations owing to injury as it has already been noted, in bolshej to a measure is peculiar to the Soviet right. It is represented, that at present the specified category has changed the sense a little. As V.A.Tarhov not unreasonably specified, bases of the civil legislation and a part 1 GK the Russian Federation «have considerably expanded sphere of responsibility irrespective of fault» [275]. It would be desirable to add, that the specified tendency is characteristic and for a part 2 GK the Russian Federation, and other regulatory legal acts accepted after 1991 [276]. We will agree with V.P.Mozolina's statement that in obligations owing to injury «crucial importance has an objective element» [277 [278], instead of subjective.

The fault is one of the bases of approach of civil responsibility, however GK the Russian Federation has established a rule according to which the law cases of compensation of harm in the absence of fault can be provided. Besides, the duty on harm compensation can be assigned to the person who is not prichinitelem of harm. The harm caused by lawful acts (item 1064 GK the Russian Federation) should be on occasion compensated. Hence, it is necessary to speak not about a fault principle, and about inevitability of responsibility for damnified. Thus, the given basic position will concern not only those cases when the duty on harm compensation is connected with fault prichinitelja, but also other situations (compensation of the harm caused by minors, compensation of the harm caused by a source of raised danger, etc.).

In separate researches the categories concerning obligations owing to injury which are named by "principles" are used. In particular, authors use such terms: a principle of the mixed fault (it is applied in the presence of fault as prichinitelja harm, and the victim), a principle of a joint liability for the harm caused by combined action. It is difficult to agree with use in the specified cases of the term "principle". Hardly the given categories should be considered as basic positions of the obligations arising from injury. Most likely, this all only concrete rules applied in certain conditions (contributory guilt presence, injury by combined action).

Thus, on the basis of the analysis of norms of chapter 59 GK the Russian Federation and judiciary practice it is necessary to allocate following principles of obligations owing to injury: inadmissibility of injury, inevitability of responsibility for damnified, the harm full indemnification. We will consider them in more details.

The principle of inadmissibility of injury is based on positions of the Constitution of the Russian Federation about an interdiction to break the right and freedom of other persons (ch. 3 items 17) also reveal in a number of positions GK the Russian Federation. As it is noted by E.V.Vavilinym, «legal relations between participants should be under construction according to a principle of mutual responsibility of subjects of law in the course of realisation of the rights and discharge of duties» [279]. With reference to the relations regulated by chapter 59 GK the Russian Federation, it means, that all participants of the civil circulation are obliged to abstain from causing of any harm by another, both property, and moral.

The idea about inadmissibility of injury as a fundamental basis of tort liabilities is traced and in the foreign legal doctrine. So, by foreign authors it was underlined, that in the course of a life everyone should aspire to avoiding infringement of the rights of others. If infringement has occurred, guilty should compensate damnified [280 [281]. There was a theory of the broken legitimate rights, which essence that «you should not cause any harm to yours to the neighbour».

It is possible to tell, that the overall objective of existence of tort liabilities - not to admit infringements of the rights of subjects of the civil circulation. Norms in which the principle of inadmissibility of injury is realised,

Are directed on achievement of the important function of civil law - guarding. As V.A.Tarhov wrote, «the civil matter parties should know, that default of the duties by them can entail infringement of public relations, property losses and other adverse consequences for other party and a society as a whole, and not to suppose infringement of the duties» [282 [283]. That is not the establishment of similar rules could create a situation at which citizens and legal bodies have not been protected from personal tort and to property.

It is difficult to argue with G.A.Sverdlyka's statement that «advantage of the legal instructions containing in norms of institute of obligations, arising owing to injury, consists that they are directed on education at all citizens and labour collectives of respect to socialist and a personal property, by a life and health of the person, and thereby and to abstention from injury specified social

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To the blessings ». In spite of the fact that the resulted judgement was formed in other social and economic conditions, it actually and today. Norms of chapter 59 GK the Russian Federation urged to bring up feeling of respect to the person and property of other persons at subjects.

Feature of norms about obligations owing to injury is that they are applied only in case of adverse development of public relations. In it their essential difference from conventional law positions. The rules established by chapter 59 GK the Russian Federation, serve as a problem of prevention, the prevention of unlawful conduct of participants of the civil circulation. Thereupon it is necessary to stop on such phenomenon, as kumuljatsija sanctions.

The norms directed on bar of claim by lapse of time of injury of a life and health of citizens, contain in various branches of law. It is connected by that the rights and freedom of the person and the citizen are the higher value in the Russian Federation, and the life and health of the person admit the major, inaliennable blessings. Thus, at causing of death or harm to health of the person comes criminal and civil responsibility. Given vzaimodopolnenie sanctions it is proved and, apparently, does not break obshchepravovoj a principle «it is impossible to punish twice for same» as punishment under criminal law assumes the personal responsibility, and civil - property.

In a science it is proved it was noticed, that norms of the law of torts are closely connected with positions of other branches of law. In particular, with reference to the legislation on obligations owing to injury by employees of law-enforcement bodies A.N. Kuzbagarov fairly specifies, that it concerns complex interbranch institute [284]. We will agree with the resulted opinion and we will notice, that for full studying of the law of torts it is necessary to be guided by norms criminal, labour, administrative law, other branches. Thus, studying of interbranch communications of institute of obligations owing to injury - the pressing question which till now in full has been not investigated.

Marking importance and fundamental nature of a principle of inadmissibility of injury, G.A.Sverdlyk specifies, that the chapter devoted to tort liabilities, it is necessary «to begin not with the norm establishing the general bases of responsibility for injury, and from the norm-principle fixing the major is standard-supervising position about inadmissibility of injury» [285]. It is necessary to agree With the given thesis. The idea that subjects of civil law are obliged to abstain from injury to other persons, gets all chapter 59 GK the Russian Federation. However the general provision establishing the specified rule, no. Owing to told it is offered to add item 1 of item 1064 GK the Russian Federation with paragraph 1 of the following maintenance: «personal tort and to property of citizens, and also property of legal bodies, other subjects of the civil circulation is not supposed».

According to G.A.Sverdlyka, the requirement about inadmissibility of injury includes two elements: abstention from injury and prevention of danger of occurrence or increase in the arisen harm [286]. That is the considered principle besides the first aspect which is considered above, includes also the second, not less important.

In particular, rules about the injury prevention (item 1065 GK the Russian Federation) are established. On the basis of the given norm by the Supreme Court of the Russian Federation it is specified, that danger of injury to environment in the future can be the basis to prohibition of the activity creating such opas - nost [287]. Also by judiciary practice it is noticed, that in cases when autocratically erected object which is not new object or real estate, creates threat to life and to health of citizens, interested persons have the right to address in court with the claim about activity prohibition on operation of the given object [288]. The resulted positions are reflexion of a principle of inadmissibility of injury. It is represented, that courts should use more widely in practice of norm of item 1065 GK the Russian Federation in a kind of that harm approach (especially when it is a question of protection of a life and health of citizens) is always better for preventing, if it is possible, than further to struggle with its consequences.

It is necessary to notice, that there are situations in which injury is supposed. They should be considered as exceptions of the general principle. So, other participants of fire extinguishing, liquidation of failure, accident, other extreme situation are released from compensation of the caused damage, operating in the conditions of emergency and (or) the proved risk [289] staff of fire protection.

It is possible to allocate following cases of an admissibility of injury: the justifiable defence, emergency, force majeure, intention of the victim, upolnomochennost on injury and others. That fact is indisputable, that similar «the right to injury» arises in unusual cases and should follow from norm of the law directly.

neotvratimost responsibility for damnified - one more of principles of obligations owing to injury according to which the person who has harmed other subject of civil law, is obliged to incur civil responsibility in the form of adverse consequences of property character, except for cases, statutory. Sometimes in the literature «the principle of the general tort», which essence that injury by one person to another in itself is the basis of occurrence of a duty to compensate damnified is underlined on so-called. It turns out, that a principle general - nogo the tort - general provisions of obligations owing to injury which combines signs of inevitability of responsibility and the harm full indemnification.

Action of a principle of inevitability of responsibility is shown in following norms of chapter 59 GK the Russian Federation:

- The harm caused to the person or property, comes under to compensation;

- The harm caused by the state bodies, local governments, their officials, illegal acts of agencies in charge of preliminary investigation, preliminary investigation, Office of Public Prosecutor, court comes under to compensation;

- The harm caused by the minor, incapacitated, ogranichenno capable, the citizen, not capable to understand value of the actions comes under to compensation;

- Duty to compensate the done moral harm;

- Other positions.

As realisation of a principle of inadmissibility of injury it is necessary to consider a rule of item 1081 GK the Russian Federation that the person who has compensated harm, caused by other person has the right of the return requirement (recourse) to this person. Really, an establishment of legislative guidelines on a duty to compensate damnified for other person, for example, owing to execution by the last labour, official, official duties does not mean, that direct prichinitel harm will not incur civil responsibility. Otherwise there would be an infringement of a considered principle.

The requirement of inevitability of responsibility follows from the concept of the guaranteed realisation of the civil rights and the discharge of duties, the developed E.V.Vavilinym. The author fairly approves, that its non-observance «accepts very often absurd, antihumane forms» [290]. The similar problem is observed, in particular, on some affairs connected with requirements about indemnification of moral harm. So, to the aged parents who have lost as a result of a careless crime of the unique son, indemnification of moral harm at a rate of 40 thousand rbl. for two, i.e. on 20 thousand rbl. to everyone has been awarded. In the situations similar resulted, the purpose of institute of compensation of harm it is not reached, and the inevitability principle is not realised.

Thus, inevitability of responsibility cannot be considered exclusively, as requisition. The adverse consequences of property character imposed on prichinitelja of harm, should be adequate to an offence. At definition of the size of compensation it is necessary to be guided by all circumstances of business, a property status prichinitelja harm and the victim. Only the adequate, fair sanction for tort fulfilment can be considered, how reflexion of a principle of inevitability of responsibility for damnified.

In connection with an analyzed question interesting V.A.Tarhova's statement is represented what to speak about «to inevitability in retrospective aspect it is impossible, it is left to the discretion to the dissatisfied party, responsibility in perspective aspect remains in all cases». Really, in private law the decision on application of measures of responsibility in the form of harm compensation remains on a choice of the creditor which, at desire, can not address at all for protection of the rights. Told does not cancel an inevitability principle as in any situations responsibility in perspective aspect remains.

Concerning the importance of a considered category indisputable N.S.Maleina's remark that «one of the major conditions of increase of efficiency of property responsibility - its inevitability» [291 [292] is represented. The legislator and pravoprimenitel should take all possible measures for maintenance of inevitability of responsibility. The relation of citizens and legal bodies depends on it to the law, level of legal culture in a society, efficiency of all existing rules of law.

The principle of the full indemnification of harm means, that the harm caused to the person or property of the citizen, and also the harm caused to property of the legal person, comes under to compensation in full the person who has harmed (item 1 of item 1064 GK the Russian Federation). The specified beginning of the law of torts was considered in many researches devoted to the general questions of obligations owing to injury. As it is noted by G.A.Sverdlykom, the essence of the considered beginning consists in «restoration by the offender

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That condition which took place before harm formation ».

The specified basic position is shown in judiciary practice. For example, with a view of the big realisation of considered idea the Supreme Court of the Russian Federation has noticed, that when at will of the victim for calculation of the sum of compensation of harm the usual rate of commission of the worker of its qualification (trade) in the given district and (or) size of a living wage of able-bodied population as a whole across the Russian Federation, court for the purpose of observance of principles of equality is considered, justice and the harm full indemnification has the right to consider such sizes on the basis of data about earnings on homogeneous qualification (trade) (with the same name) in the given district at date of definition of the size of compensation of harm [293 [294] [295].

The idea of necessity of the full indemnification of the caused losses gets also the foreign legislation. As R.Stone specifies, the usual measure in the tort - to put the claimant in position in which it would appear if the tort has not happened. It, basically, indemnification of losses also it is caused -

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nogo a damage. With reference to the right of the USA it is specified, that «compensation systems (losses at injury - A.V.) differ from staff to staff, but their main objective consists in vindictive damages of a real damage, pone -

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Hay the claimant ».

It is necessary to note special importance of an analyzed principle for private-law sphere. Under V.A.Hohlova's statement, «in civil law a dominant of the responsibility expressing its essence, necessity of restoration former (to an offence) positions of the creditor, protection of the broken rights» [296] is. It is possible to tell, that in the requirement of the full indemnification of harm the essence of a method of the civil-law regulation directed, first of all, on protection of private interests is reflected, first; secondly, realisation of an orientation of norms of a liability law on protection of the creditor is traced.

It is important to notice, that the Constitutional Court of the Russian Federation has allocated a separate principle: garantirovannost compensation of the caused harm which assumes protection of the broken rights in full [297]. The specified phenomenon should be considered as a synonym of a principle of the full indemnification of harm. Hence, the considered basic beginning of tort liabilities has not only private-law, but also the constitutional bases.

For understanding of an essence of the full indemnification it is necessary to address to item 15 GK the Russian Federation. The person who has broken someone's right, is obliged to pay all damages which are subdivided into a real damage (expenses which the victim has made or should make for restoration of the broken right, and also loss or property damage) and the loss of profit (not received incomes which the person would receive under usual conditions of the civil circulation if its right has not been broken). On occasion the law specifies in necessity of indemnification of moral harm (item 1099 GK the Russian Federation). Thus, most the general formula of the full indemnification looks so: the indemnification (a real damage and the loss of profit) and indemnification of moral harm. From this rule exceptions regarding putting on on the creditor under the tort liability of additional duties about what it will be separately told are possible.

Let's notice, that, according to scientists, for example O.S.Ioffe, the full indemnification principle finds the reflexion and in the obligations arising owing to injury of a life and health of the citizen [298]. The given statement is represented correct. For realisation of a principle of the full indemnification with reference to personal tort GK the Russian Federation has provided special rules. In particular, the order of definition of the earnings lost as a result of damage of health is established, the size of compensation of the harm suffered in case of death of the supporter, etc. Similar norms are directed on an establishment of such legal regime, at which sustained (persons by whom it is damnified health; relatives died) could receive what they have lost as a result of causing of harm by it.

At the same time it is not necessary to absolutise a considered principle. Far not always probably to restore the position existing before injury. First, it is connected with complexity of returning of the lost property. Still O.S.Ioffe correctly noticed, that compensation in nature is applied seldom as it frequently is impossible. Besides, often it is more convenient to victim to receive monetary indemnification, than the lost subject [299]. Secondly, no indemnification can restore the position existing before injury to health and, especially, of a life of the citizen. Here it is necessary to speak only about the indemnification which have incurred the person who has received a mutilation, or relatives of the died. To consider it as the full indemnification in that sense in which G.A.Sverdlyk understands it, incorrectly.

Thirdly, for an establishment the money's worth of indemnification of moral harm is difficult. To state an exact cost estimation to physical and moral sufferings it is simply impossible. There are no certain criteria for the permission of the given question and in judiciary practice. As has specified the Supreme Court of the Russian Federation, for definition of the size of indemnification it is necessary to consider character and volume caused to the claimant moral and corporal hurts, degree of fault of the respondent in each concrete case, others worthy circumstances. Besides requirements of a rationality and justice [300] should be considered. As we see, accurate criteria it is not established.

Owing to the told the conclusion follows, that the full indemnification principle is necessary for considering not as reduction of the public relation in a condition which took place before injury and as a duty of the debtor to give the most comparable indemnification in the given concrete conditions lost by sustained (creditor). The resulted treatment of a principle of the full indemnification approaches and to such cases in which, apparently, realisation of the specified fundamental idea is impossible: compensation of the harm caused to a life or health of the citizen, indemnification of moral harm, etc.

One of aspects of a principle of the full indemnification of harm is the establishment in GK the Russian Federation of the general rule about impossibility of reduction of volume of compensation of harm. So, according to item 1064 GK the Russian Federation the law or the contract can be established a duty prichinitelja harm to pay having sustained - tttim indemnification over harm compensation. A return rule (the establishment indemnification contract in size, smaller, than damnified) is not established. On occasion GK the Russian Federation all the same supposes reduction of the size of compensation (gross negligence of the victim, a property status of the debtor), but they should be considered as exceptions of the general rule.

It is necessary to notice, that the harm full indemnification means not simply cost compensation, for example, the lost property, but also fulfilment in full other actions. So, with reference to compensation of the harm caused by illegal acts of the employee of law-enforcement bodies,

A.N.Kuzbagarov allocates such specific ways of compensation of harm as: «a refutation of data which touch honour, advantage and reputation (defamation); restoration on a former place of work; employment records correction; restoration of ranks and returning of awards» [301 [302] [303].

In addition to the told we will note norm of item 138 Ugolovnoprotsessualnogo of the code of the Russian Federation according to which restoration is come under by labour, pension, housing, other rights rehabilitated. The resulted position should be considered as display of an analyzed principle. Thus, the list of actions which are necessary for making for the harm full indemnification, it is necessary to consider not settling as it can be various depending on a concrete situation.

In the literature it was specified, that the resulted principle has certain restrictions. It is necessary to carry to them, in particular, positions of item 1083 GK the Russian Federation: the size of compensation should be reduced in the event that gross negligence of the victim promoted occurrence or harm increase. Besides it, the court has the right to reduce the size of compensation of the harm caused by the citizen, taking into account its property status, except for cases when harm is caused by deliberate actions. The specified rule is display of a principle of harmony of the civil rights and the duties, the mechanism of realisation of the rights being a necessary link and discharges of duties [304].

It is represented, that restrictions of a principle of the full indemnification of harm are possible only in the unusual cases directly established in the law. Many researchers adhere to similar opinion. For example, as wrote O.S.Ioffe, «in the absence of the special bases it is necessary to be guided by a full indemnification principle» [305]. At this N.S.Malein noticed, that «it is necessary to exclude those norms which unreasonably limit a principle of the full indemnification of harm» [306].

Judiciary practice also adheres to a rule about full indemnification restriction only in unusual cases. So, the Supreme Court of the Russian Federation has specified the Russian Federation which norm provides possibility of reduction of the size of compensation of harm taking into account a property status of the citizen in inadmissibility of wide interpretation of item 3 of item 1083 GK. The court has fairly paid attention to that fact, that the given rule extends exclusively on physical persons. Possibility of decrease in the size of compensation of the harm collected from the legal person, taking into account they be 3

nogo positions by the current legislation it is not provided.

Thus, owing to injury it is necessary to carry to principles of obligations: principles of inadmissibility of injury, inevitability of responsibility for damnified, the harm full indemnification.

For the statement in the legal doctrine and practice of a principle of inadmissibility of injury we offer to add item 1 of item 1064 GK the Russian Federation with paragraph 1 of the following maintenance: «personal tort and to property of citizens, and also property of legal bodies, other subjects of the civil circulation is not supposed». Paragraphs 1, 2, 3 specified points to consider accordingly as paragraphs 2, 3, 4.

The major basis, the position, penetrating all body of rules gl. 59 GK the Russian Federation, is a principle of the full indemnification of harm. Its traditional understanding consists that it is necessary to restore the position existing before breach of law. However, such treatment is possible only from purely theoretical point of view as in full to restore existing position very often it is impossible. It is necessary to speak about a duty of the debtor under the obligation owing to injury to give the most comparable indemnification in the given concrete conditions lost by sustained (creditor). The resulted treatment of a principle of the full indemnification approaches and to such cases in which, apparently, realisation of the specified fundamental idea is impossible: compensation of the harm caused to a life or health of the citizen, indemnification of moral harm, etc.

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A source: Volos Alexey Aleksandrovich. LIABILITY LAW PRINCIPLES. The dissertation on competition of a scientific degree of the master of laws. Saratov -.
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More on topic §4. Principles of obligations owing to injury:

  1. Chapter 3. PRINCIPLES of EXECUTION of OBLIGATIONS
  2. § 2. Principles of execution of obligations
  3. §2. Principles of profitability of execution and assistance of the parties at execution of obligations
  4. § 4. Problems otgranichenija tax obligations in affairs about bankruptcy from other public property relations of obligations type
  5. Concept and essence of civil responsibility for the harm caused owing to lacks of the goods (works, services).
  6. 2.1 Subject structure of the obligation on compensation of the harm caused owing to lacks of the goods (works, services).
  7. § 1. The duties realised directly by the employer owing to express indication in the legislation
  8. 3.1 General bases of condonation for the harm caused owing to lacks of the goods, works or services
  9. 2.2 Bases of the tort liability, caused owing to lacks of the goods (works, services).
  10. § 4. Previsibility at injury in a network the Internet