Topic 20. OBLIGATIONS DUE TO HARM

20.1. Non-contractual obligations

Liabilities due to harm are included in the group of non-contractual obligations, which also include obligations due to unjust enrichment. Such obligations differ from contractual obligations in that their occurrence is not due to the will of the parties, expressed in the contract or otherwise, but on other grounds specified in the law.

By virtue of an obligation as a result of causing harm, a person who caused harm to the person or property of another person (natural or legal) is obliged to compensate him in full, and the victim has the right to demand compensation for the harm caused to him.

Causing harm to the person or property of another person, except as provided by law, is a civil offense for which civil liability should arise. Bearing such responsibility constitutes the content of the obligation of the offender in the obligation that arose as a result of causing harm. Liability that is non-contractual in nature, according to the tradition coming from Roman law, is usually called tort, and the obligation, the content of which it is, is called tort.

Tort liability should be distinguished from contractual liability, which arises as a result of non-performance or improper performance of a contractual obligation. At the same time, in some cases, the rules governing non-contractual relations also apply to certain obligations arising from contracts. So, according to Art. 1084 of the Civil Code, harm caused to the life or health of a citizen in the performance of contractual obligations is compensated according to the rules provided for in Ch. 59 of the Civil Code, unless the law or the contract provides for a higher amount of liability. The issue of the carrier's liability for harm caused to the life or health of a passenger is resolved in a similar way (Article 800 of the Civil Code). The basis for the occurrence of a tort obligation is the fact of causing harm. In paragraph 1 of Art. 1064 of the Civil Code indicates the infliction of harm to a person or property.

Causing damage to property means a violation of the property sphere of a person in the form of a decrease in the amount of his property benefits or their value. In the case of harm to a person, we are talking about harm to life (death of the victim) or human health (bodily injury, illness). Both in case of causing damage to property, and to a predominant extent when causing harm to the life or health of a citizen, property damage is subject to compensation. Only in cases provided for by law, compensation for moral damage is allowed (paragraph 1 of article 151, paragraph 2 of article 1099 of the Civil Code).

Moral harm is the physical or moral suffering caused to a citizen by the unlawful behavior of another person.

According to the current legislation, as a general rule, moral damage caused by actions that violate personal non-property rights or encroach on other non-material benefits belonging to a citizen is subject to compensation. In case of violation of the property rights of a citizen, moral damage is subject to compensation only in cases expressly provided for by law.

For the onset of liability for causing harm, it is not enough only the fact of its infliction, the presence of a number of circumstances, called the conditions of tort liability, is also necessary.

A tort obligation and, accordingly, tort liability arise under the following conditions:

▪ illegality of the behavior of the person who caused the harm;

▪ a causal connection between the unlawful behavior of the harm-doer and the resulting harm;

▪ the guilt of the person who caused the harm.

According to paragraph 3 of Art. 1064 of the Civil Code, harm caused by lawful actions is subject to compensation in cases provided for by law. Therefore, as a rule, compensation is subject to damage caused by unlawful, unlawful actions.

The concept of "behavior of the harm-doer" is associated not only with his actions, but also inaction. Inaction is recognized as unlawful if a person was obliged to perform a certain action, but did not do so.

As a general rule, harm caused by lawful actions is not subject to compensation. Lawful, in particular, is the infliction of harm in the performance by a person of his duties stipulated by law, other legal acts or professional instructions. Similarly, it is considered as lawful infliction of harm by an act to which the consent of the victim himself is given, but subject to the legitimacy of this consent.

The best-known case of lawful infliction of harm is infliction of it in a state of necessary defense. According to Art. 1066 of the Civil Code, harm caused in a state of necessary defense is not subject to compensation, unless its limits were exceeded.

The law allows only one exceptional case when damage caused by lawful actions must be compensated: infliction of harm in a state of emergency. A state of emergency, as follows from Part 1 of Art. 1067 of the Civil Code, is a situation in which the danger threatening the tortfeasor himself or other persons could not be eliminated by other means, i.e. without harming the victim. Although the actions committed in this case are recognized as lawful, the harm caused by them is subject to compensation by virtue of a direct indication of the law (clause 3 of article 1064, part 1 of article 1067 of the Civil Code).

According to part 2 of Art. 1067 of the Civil Code, taking into account the circumstances under which such damage was caused, the court may impose the obligation to compensate for it on a third person in whose interests the person who caused the damage acted, or release from compensation for damage in whole or in part both this third person and the person who caused the damage.

The presence of a causal relationship between the action (inaction) of the harm-doer and the resulting harm also acts as a necessary condition for the emergence of liability for causing harm.

The condition for the onset of tort liability (although not always mandatory) is the fault of the tortfeasor. The existence of such a condition is evidenced by the norm of paragraph 2 of Art. 1064 of the Civil Code, according to which the person who caused harm is exempted from compensation for harm if he proves that the harm was caused through no fault of his. Guilt is traditionally understood as a certain mental attitude of a person to his behavior and its consequences. A characteristic of civil law is the establishment of a presumption of guilt of the harm-doer: such a person is found guilty until he proves the opposite. The peculiarity of the civil law regulation of relations arising in connection with the infliction of harm also consists in the provision of paragraph 2 of Art. 1064 of the Civil Code of the possibility of the existence of an obligation to compensate for harm even in the absence of the fault of the tortfeasor, i.e. in establishing the possibility of liability without fault. Such an exception is provided, for example, by the rules on liability for harm caused by a source of increased danger (paragraph 1 of article 1079 of the Civil Code); on liability for harm caused by illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office and court (Article 1070 of the Civil Code).

For the first time, the current Civil Code provides for the protection of the rights and interests of individuals and legal entities from the danger of causing harm in the future. According to Art. 1065 of the Civil Code, the danger of causing harm in the future may be the basis for a claim for the prohibition of activities that create such a danger. If the harm caused is a consequence of the operation of an enterprise, structure or other production activity that continues to cause harm or threatens new harm, the court has the right to oblige the defendant, in addition to compensation for harm, to suspend or terminate the relevant activity. The court may dismiss a claim for the suspension or termination of such activities only if it is contrary to the public interest. This refusal does not, however, deprive the victims of the right to compensation for the harm caused to them.

The inflictor of harm (debtor) can be any subject of civil law: a citizen (individual), a legal entity, as well as public legal entities - the Russian Federation, its subjects, municipalities.

A citizen can be recognized as the subject of a tort obligation, liable for the harm caused, provided that he has the ability to answer for his actions - tort capacity. This quality is possessed by adults, as well as minors who have reached the age of 14 (Article 26 of the Civil Code). Among the non-dictatorial, i.e. not able to be responsible for the harm caused include minors under the age of 14, persons recognized as incapable, and persons who caused harm in such a state when they could not understand the meaning of their actions or manage them (Articles 1073, 1076, 1078 of the Civil Code) . In those cases when harm is caused by the actions of a person who is not capable of negotiation, the responsibility for the harm caused to them is borne by the persons specified in the law, who become subjects of tort obligations (Articles 1073, 1076 of the Civil Code).

A legal entity may act as a subject of liability for causing harm. In this case, the actions of a legal entity are recognized as the actions of its employees or members committed by them in the course of performing their labor or membership corporate functions.

According to paragraph 1 of Art. 1068 of the Civil Code, a legal entity compensates for the harm caused by its employee in the performance of labor (official, official) duties. The concept of "employee" used in this norm is conditional, since both citizens who perform work on the basis of an employment contract (contract) and citizens who perform work under a civil law contract are recognized as employees, if they acted or should have acted on an assignment the relevant legal entity and under its control over the safe conduct of business (paragraph 2, clause 1, article 1068 of the Civil Code). Similar rules apply to cases of harm caused by an employee of a citizen (individual entrepreneur), in which the liability is borne by the citizen who hired the person who caused the harm to work or entered into a civil law contract with him on the performance of work.

The Civil Code contains a special rule according to which business partnerships and production cooperatives compensate for the damage caused by their participants (members) in the course of the latter's entrepreneurial, industrial or other activities of the partnership or cooperative (paragraph 2 of article 1068).

The perpetrators of harm and, accordingly, the subjects of tort obligations can also be public law entities. For example, harm caused to a citizen as a result of illegal conviction, illegal prosecution, illegal application of administrative punishment in the form of arrest, and in other cases specified in paragraph 1 of Art. 1070 of the Civil Code in cases, is reimbursed at the expense of the treasury of the Russian Federation, and in cases provided for by law, at the expense of the treasury of a constituent entity of the Russian Federation or the treasury of a municipal formation.

Persons who jointly caused harm shall be jointly and severally liable to the victim. However, at the request of the victim and in his interests, the court has the right to impose shared liability on such persons (Article 1080 of the Civil Code).

According to Art. 1081 of the Civil Code, a person who has compensated for the harm caused by another capable person has the right to claim back (recourse) against this person in the amount of the compensation paid, unless another amount is established by law.

The tortfeasor who compensated jointly inflicted harm has the right to demand from each of the other tortfeasors a share of the compensation paid to the victim in the amount corresponding to the degree of guilt of this tortfeasor. If it is impossible to determine the degree of guilt, the shares are recognized as equal.

Public law entities, in the event of compensation for harm caused by an official of the bodies of inquiry, preliminary investigation, prosecutor's office or court (clause 1 of article 1070 of the Civil Code), have the right of recourse to this person if his guilt is established by a court verdict that has entered into legal force .

The other side of the tort obligation is the victim, i.e. a person whose property or person has been harmed by the actions of another person. Any subjects of civil law, including legal entities and public legal entities, can be victims (creditors) in obligations from causing harm.

In the event of the death of the victim, disabled persons who were dependents of the deceased or had the right to receive maintenance from him by the day of his death act as a party to the tort obligation; the child of the deceased, born after his death, as well as other persons specified in paragraph 1 of Art. 1088 GK.

In a tort obligation, the victim has the right to demand compensation for the harm caused to him, and the person responsible for causing the harm is obliged to satisfy this requirement.

The claim of the victim may be satisfied by the harm tortfeasor voluntarily. If the tortfeasor refuses or evades this requirement, the victim may file a lawsuit in court.

In paragraph 1 of Art. 1064 of the Civil Code establishes the most important principle of tort liability - the principle of full compensation for harm, i.e. reimbursement in full. At the same time, the law provides for some exceptions to this principle, allowing for a decrease or increase in the amount of liability of the tortfeasor.

Reducing the amount of compensation is allowed only in two cases expressly provided for in Art. 1083 GK. Firstly, the amount of compensation should be reduced if the gross negligence of the victim himself (taking into account the degree of guilt of the victim and the tortfeasor) contributed to the occurrence or increase of harm. Secondly, the court can reduce the amount of compensation for harm caused by a citizen, taking into account his property status (except in cases where the harm was caused by actions committed intentionally). At the same time, a subsequent reduction in the amount of compensation for harm is also allowed, taking into account changes in the property status of a citizen. Thus, the court may, at the request of the citizen who caused the harm, reduce this amount if his property status due to disability or reaching retirement age has worsened compared to the situation at the time of awarding compensation for harm. However, this rule is also not subject to application if the harm was caused by intentional actions (paragraph 4 of article 1090 of the Civil Code).

It is also possible to establish by law or contract the obligation of the harm-doer to pay compensation to the victims in excess of compensation for harm (paragraph 3, clause 1, article 1064 of the Civil Code). For example, compensation for non-pecuniary damage, as provided for in paragraph 3 of Art. 1099 of the Civil Code, is carried out regardless of the property damage subject to compensation, i.e. beyond his reimbursement.

Depending on certain circumstances, the amount of compensation for harm may vary. So, the victim has the right to demand an increase in the amount of compensation for harm caused to life or health in the event of a decrease in working capacity (clause 1 of article 1090 of the Civil Code) or in connection with an increase in the cost of living and an increase in the minimum wage (article 1091 of the Civil Code).

Often, harm occurs as a result of not only the actions (or inaction) of the tortfeasor, but also the behavior of the victim himself. From a legal and moral point of view, it is obvious that in such cases the person who caused the harm should not be held liable without taking into account the fault of the victim. So, if the harm arose as a result of the intent of the victim, it is not subject to compensation. In cases where the occurrence or increase in harm was facilitated by the gross negligence of the victim himself, the amount of compensation must be reduced in accordance with the degree of guilt of the victim and the tortfeasor (clause 1, paragraph 1, clause 2, article 1083 of the Civil Code). In case of gross negligence of the victim and the absence of fault of the tortfeasor in cases where his liability arises regardless of fault (in particular, when harm is caused by a source of increased danger), the amount of compensation must be reduced or compensation for harm may be refused, unless otherwise provided by law. However, in the presence of these circumstances, a refusal to compensate for harm caused to the life or health of a citizen is not allowed (paragraph 2, clause 2, article 1083 of the Civil Code).

The law provides for two types of compensation:

▪ compensation in kind (providing an item of the same kind and quality, correcting a damaged item, etc.);

▪ compensation for losses caused.

When recovering the damages caused, not only actual damage is subject to accounting, but also lost profits (Article 1082, clause 2 of Article 15 of the Civil Code).

20.2. Liability for damage caused by public authorities and their officials

According to Art. 53 of the Constitution, everyone has the right to state compensation for damage caused by illegal actions (or inaction) of public authorities or their officials. Along with citizens, legal entities also have this right. Civil legislation also provides for liability for damage caused by the actions (inaction) of local governments and, accordingly, their officials.

Responsibility for harm caused by their bodies or officials in the exercise of power functions shall be borne by public law entities. Harm is compensated at the expense of the treasury of the Russian Federation, a constituent entity of the Russian Federation or a municipality (Article 1069 of the Civil Code). In turn, the treasury is represented by the financial authorities managing it (ministries, departments or departments of finance), unless in accordance with paragraph 3 of Art. 125 of the Civil Code, this obligation is not assigned to another body, legal entity or citizen (Article 1071 of the Civil Code). In this case, both the harm caused to the person and property of a citizen or the property of a legal entity (clause 1 of article 1064 of the Civil Code) and moral harm caused to a citizen (article 151 of the Civil Code) are subject to compensation.

The most important condition for the liability of public authorities and their officials for causing harm is the illegality of their actions (or inaction). Modern legislation resolves the issue of who bears the burden of proof when determining the legality of the actions of the relevant bodies and officials, in favor of the citizen, establishing that in disputable cases, state bodies and other entities endowed with power must prove the legality of their actions. 1 article 249 of the Civil Procedure Code of the Russian Federation). Illegal can be not only the actions of the relevant bodies and their officials, but also their inaction, i.e. failure by them to perform those actions that they were obliged to perform, resulting in harm to a citizen or legal entity.

The law does not contain any other reservations regarding the conditions of liability for harm caused by the above subjects. It follows from this that the general rules of tort liability should apply to it, including the fault of the tortfeasor as a necessary condition for such liability, the existence of which is assumed (paragraph 2 of article 1064 of the Civil Code).

The law specifically regulates liability for harm caused by illegal actions of law enforcement agencies - bodies of inquiry, preliminary investigation, prosecutor's office and court (Article 1070 of the Civil Code). Responsibility for causing harm to a citizen or legal entity by these bodies arises, in particular, in the following cases:

▪ unlawful conviction;

▪ illegal prosecution;

▪ illegal use of detention or recognizance not to leave as a preventive measure;

▪ illegal application of administrative punishment in the form of arrest or suspension of the activities of a legal entity (clause 1 of Article 1070 of the Civil Code).

The harm caused to a citizen or legal entity by these actions shall be compensated at the expense of the treasury of the Russian Federation, and in cases provided for by law, at the expense of the treasury of a constituent entity of the Russian Federation or the treasury of a municipal formation. At the same time, the need to compensate such damage in full (clause 1 of article 1070 of the Civil Code), including compensation to a citizen for moral harm (article 1100 of the Civil Code), is especially emphasized. The peculiarity of the liability in question is that it occurs regardless of the fault of officials of the relevant law enforcement agencies.

According to paragraph 3 of Art. 1084 of the Civil Code of the Russian Federation, a constituent entity of the Russian Federation or a municipality in the event of compensation for harm caused by an official of the bodies of inquiry, preliminary investigation, prosecutor's office or court (clause 1 of article 1070 of the Civil Code), have the right of recourse to this person if his guilt is established by a verdict court that has entered into force.

20.3. Liability for harm caused by minors and incompetent citizens

Minors under the age of 14 are not liable for harm caused to them, i.e. completely indestructible. According to paragraph 1 of Art. 1073 of the Civil Code, responsibility for harm caused to a minor is borne by his parents (adoptive parents) or guardians. These persons are liable for harm if there are general grounds for tort liability. The illegality of their behavior lies in the poor upbringing of the child, in the failure to exercise proper supervision over him, i.e. in the improper performance by them of the duties assigned to them by law (Articles 63, 150 of the Family Code of the Russian Federation). At the same time, both parents are liable for harm, since they are equally obliged to raise children, regardless of whether they live with them or separately.

In order to lay responsibility on parents (adoptive parents) or a guardian, it is necessary to establish the existence of a causal relationship between their illegal behavior and harm, i.e. determine that it was due to poor upbringing, failure to exercise supervision that the child committed an action that caused harm. The law establishes the presumption of guilt of parents (adoptive parents) or a guardian for causing harm to a child under the age of 14: these persons are released from liability if they prove that the harm was not their fault (paragraph 1 of article 1073 of the Civil Code). According to the current legislation, parents deprived of parental rights are not fully exempted from liability for harm caused by minors. They bear such responsibility within three years after the deprivation of their parental rights (Article 1075 of the Civil Code).

The law also establishes liability for harm caused by a minor who is in an appropriate educational, medical institution, institution of social protection of the population or other similar institution, which, by virtue of the law, is his guardian (Article 35 of the Civil Code). Such institutions are responsible for this harm, unless they prove that it arose through no fault of theirs (paragraph 2 of article 1073 of the Civil Code). If a minor caused harm at a time when he was under the supervision of an educational, educational, medical or other institution obliged to supervise him, or of a person exercising supervision on the basis of an agreement, this institution or person is liable for the harm, unless he proves that the harm arose not through his fault in the exercise of supervision (paragraph 3 of article 1073 of the Civil Code).

Minors who have reached the age of 14 are independently liable for the harm caused on a general basis (paragraph 1 of article 1074 of the Civil Code). In this regard, the claim of the victim for compensation for harm must be presented to the minor himself, who must be the defendant in such a claim in court. At the same time, the law takes into account that a minor at the specified age does not always have earnings, income, property sufficient to compensate for the harm caused. Accordingly, in order to ensure the restoration of the violated interests of the victim in such cases, it is envisaged that the harm must be compensated in full or in the missing part by his parents (adoptive parents) or guardian, unless they prove that the harm arose through no fault of theirs, i.e. that they carried out their parental duties properly (paragraph 1, clause 2, article 1074 of the Civil Code). Thus, the responsibility of these persons is additional (subsidiary) in nature.

If a minor aged 14 to 18 who needs care was in an appropriate educational, medical institution, institution of social protection of the population or other similar institution, which by virtue of the law is his guardian (Article 35 of the Civil Code), this institution is obliged to compensate for the harm completely, if he does not prove that the harm arose through no fault of his (paragraph 2, clause 2, article 1074 of the Civil Code).

In accordance with paragraph 3 of Art. 1074 of the Civil Code, the obligation of parents (adoptive parents), a guardian and an appropriate institution to compensate for harm caused by minors aged 14 to 18 years old is terminated in the presence of the following circumstances:

▪ the person causing the harm has reached the age of majority;

▪ if this person, before reaching the age of majority, has income or property sufficient to compensate for the harm;

▪ the acquisition of full legal capacity by a minor (in connection with marriage or emancipation).

A citizen recognized by the court as incompetent on the grounds provided for in Art. 29 of the Civil Code, is completely non-dictatorial. The harm caused by such a citizen shall be compensated by his guardian or an organization obliged to supervise him. These subjects are released from liability if they prove that the harm was not their fault, i.e. that they properly supervised a recognized incompetent person suffering from a mental disorder (clause 1 of article 1076 of the Civil Code). If the guardian has died or does not have sufficient funds to compensate for the harm caused to the life or health of the victim, and the tortfeasor himself has such funds, the court, taking into account the property status of the victim and the tortfeasor, as well as other circumstances, has the right to decide on compensation for harm in full or in part for the account of the tortfeasor himself (clause 3 of article 1076 of the Civil Code).

It should be noted that a citizen, limited in legal capacity due to the abuse of alcohol or drugs, retains the capacity to delict in full and therefore must compensate for the harm caused to him (Article 1077 of the Civil Code).

A capable citizen or a minor aged 14 to 18 who caused harm in such a state when he could not understand the meaning of his actions or control them, is not responsible for the harm caused to him (paragraph 1, clause 1, article 1078 of the Civil Code). This refers to such cases when a person has a temporary inability to be aware of his actions or to manage them, caused by some unexpected factors (strong emotional excitement, short-term exacerbation of the disease, etc.). If the harm was caused by a person who could not understand the meaning of his actions or manage them due to a persistent mental disorder, the obligation to compensate for it may be imposed by the court on his able-bodied spouse, parents, adult children living together with this person who knew about such a mental disorder. the tortfeasor, but did not raise the issue of recognizing him as incapacitated (paragraph 3 of article 1078 of the Civil Code).

The norm of paragraph 2 of Art. 1078 of the Civil Code, according to which the rule on exemption from liability for causing harm does not apply in cases where the tortfeasor himself brought himself into a state in which he could not understand the meaning of his actions or control them, by drinking alcohol, drugs or otherwise .

The obligation to compensate for harm (in whole or in part) may be assigned to the person who caused the harm in such a state, if the harm was caused to the life or health of the victim. At the same time, the court takes into account the property status of the victim and the tortfeasor, as well as other circumstances (paragraph 2, clause 1, article 1078 of the Civil Code).

20.4. Liability for damage caused by a source of increased danger

According to Art. 1079 of the Civil Code, legal entities and citizens whose activities are associated with increased danger to others (use of vehicles, mechanisms, high-voltage electrical energy, atomic energy, explosives, potent poisons, etc.; construction and other related activities and etc.), are obliged to compensate for the harm caused by a source of increased danger, unless they prove that the harm arose as a result of force majeure or the intent of the victim.

The question of the concept of a source of increased danger is controversial. In particular, both in the science of civil law and in judicial practice, activities that create an increased danger to others, or objects of the material world that create such a danger, are considered as this source. In Art. 1079 of the Civil Code, the legislator gives only an approximate list of activities that pose an increased danger to others. Due to the variety of such activities and the constant development of science and technology, increasing their number, this list cannot be exhaustive. The subjects of liability for harm caused by a source of increased danger are the owners of such a source.

The owner of a source of increased danger is understood as a legal entity or citizen who owns a source of increased danger on the basis of the right of ownership, the right of economic management or the right of operational management, or on another legal basis (on the right of lease, by proxy for the right to drive a vehicle, by virtue of the order of the relevant authority on the transfer of a source of increased danger to him, etc.) (paragraph 2, clause 1, article 1079 of the Civil Code).

Two important conclusions follow from this definition. Firstly, according to the current legislation, not only its owner, but also any other title owner of it is recognized as the owner of a source of increased danger. Secondly, the person who directly manages it by virtue of labor relations with the owner of this source (driver, driver, operator, etc.) is not recognized as the owner of a source of increased danger and is not liable for harm to the victim.

As a general rule, persons who jointly caused harm are liable to the victim jointly and severally (part 1 of article 1080 of the Civil Code). Accordingly, the owners of sources of increased danger are jointly and severally liable for the harm caused as a result of the interaction of these sources (collisions of vehicles, etc.) to third parties, on the grounds provided for in paragraph 1 of Art. 1079 of the Civil Code (paragraph 1 of clause 3 of article 1079 of the Civil Code).

The peculiarity of liability for causing harm by a source of increased danger is that this liability arises regardless of the fault of the owner of such a source. There is an exception to this rule. It is expressed in par. 2 p. 3 art. 1079 of the Civil Code, according to which the harm caused as a result of the interaction of sources of increased danger to their owners is compensated on a general basis (Article 1064 of the Civil Code), i.e. considering the guilt of each of them.

The grounds for releasing the owner of a source of increased danger from liability are:

1) force majeure;

2) the intent of the victim;

3) gross negligence of the victim;

5) unlawful taking of a source of increased danger by a third party (clause 1 of Article 1079 of the Civil Code).

The gross negligence of the victim himself can be the basis for both partial and complete exemption from liability for harm caused by a source of increased danger. If the gross negligence of the victim contributed to the occurrence or increase of harm, then, depending on the degree of guilt of the victim and the tortfeasor, the owner of the source of increased danger is subject to partial exemption from liability (paragraph 1, clause 2, article 1083 of the Civil Code). In the absence of the fault of the tortfeasor, the gross negligence of the victim can serve as a basis for both partial and complete release of the owner of the source of increased danger from liability. However, the gross negligence of the victim cannot serve as a basis for the complete exemption from liability of the owner of a source of increased danger, if harm is caused to the life or health of a citizen (paragraph 2, clause 2, article 1079 of the Civil Code).

The guilt of the victim, who was harmed by a source of increased danger, is not taken into account when compensating for additional expenses (clause 1, article 1085 of the Civil Code), when compensating for harm in connection with the death of the breadwinner (article 1089 of the Civil Code), as well as when compensating for burial expenses (article 1094 of the Civil Code). XNUMX GK).

The court may reduce the amount of compensation for harm caused by a citizen-owner of a source of increased danger, taking into account his property status, except in cases where the harm was caused by actions committed intentionally (paragraph 1 of article 1079, paragraph 3 of article 1083 of the Civil Code).

According to paragraph 2 of Art. 1079 of the Civil Code, the owner of a source of increased danger is not liable for the harm caused by this source if he proves that the source has left his possession as a result of unlawful actions of third parties. Responsibility for harm caused by a source of increased danger, in such cases, is borne by persons who unlawfully took possession of the source. If the owner of a source of increased danger is guilty of unlawfully removing this source from his possession (for example, in cases of inadequate security, leaving keys in the ignition of a car, etc.), liability can be assigned both to the owner and to the person who unlawfully took possession of source of increased danger, depending on the degree of their guilt.

20.5. Liability for harm caused to the life or health of a citizen

Harm caused to the life or health of a citizen is expressed in the death of a person or damage to his health (mutilation, other injury, illness). Such harm in all cases cannot be compensated in kind, nor compensated in money. However, when it is caused, the victim usually incurs property losses, since he is temporarily or permanently deprived of the opportunity to receive his previous earnings or other income, is forced to bear additional expenses for treatment, etc. In the event of the death of a citizen, such losses may be incurred by persons close to him, who, as a result, are deprived of a source of maintenance or income. Such losses of the victim or persons close to him are subject to compensation by the tortfeasors within the framework of tort obligations. On these grounds, the victim, in addition, is compensated for the moral damage caused, therefore, causing harm to life or health is, by virtue of the law, one of the grounds for the emergence of tort obligations.

Harm caused to the life or health of a citizen is subject to compensation within the framework of non-contractual obligations and in cases where it is the result of improper performance of the contract (civil law, labor) or the performance of obligations under the contract that is not related to its violation. According to Art. 1084 of the Civil Code, harm caused to the life or health of a citizen in the performance of contractual obligations, as well as in the performance of duties of military service, police service and other relevant duties is compensated according to the general rules on liability for harm caused to life or health, unless the law or the contract provides for more high level of responsibility.

Employees insured in accordance with the legislation on social insurance are entitled to compensation for harm in accordance with the norms of Ch. 59 of the Civil Code in the part exceeding the provision for insurance.

In connection with the infliction of injury or other damage to a citizen's health, compensation is primarily subject to the loss of earnings or other income that the victim had or could definitely have before the damage to his health (paragraph 1 of article 1085 of the Civil Code). When determining the amount of compensation, the earnings or other income that the victim could have had after causing harm to his health may be taken into account.

The peculiarity of the current legislation is that the earnings or income lost by the victim cannot be reduced by the amount of pensions, allowances and other payments assigned to him in connection with an injury or other damage to health, which should not be counted towards compensation for harm. The earnings or income received by the victim after damage to his health (clause 2 of article 1085 of the Civil Code) is not included in the account of such compensation. Thus, at present, guarantees for the protection of the property interests of persons whose health has been harmed have been significantly increased. In addition, the volume and amount of compensation for harm due to the victim may be increased by law or by agreement (paragraph 3 of article 1083 of the Civil Code).

The amount of compensation for the lost earnings (income) of the injured person is determined as a percentage of his average monthly earnings (income) before injury or other damage to health or until he loses his ability to work, corresponding to the degree of loss of the victim's professional ability to work, and in the absence of professional ability to work - the degree of loss of general ability to work ( item 1 of article 1086 of the Civil Code).

According to paragraph 2 of Art. 1086 of the Civil Code, the composition of the lost earnings (income) of the victim includes all types of remuneration for his labor under labor and civil law contracts, both at the place of the main job and part-time, subject to income tax. Income from entrepreneurial activities, as well as royalties, are included in lost earnings, while income from entrepreneurial activities is included on the basis of data from the tax inspectorate. All types of earnings (income) are taken into account in amounts accrued before taxes.

The average monthly earnings (income) of the victim is calculated by dividing the total amount of his earnings (income) for the 12 months of work preceding the damage to health by 12. the total amount of earnings (income) for the actually worked number of months preceding the damage to health, by the number of these months.

In the case when the victim did not work at the time of the injury, the earnings before dismissal or the usual amount of remuneration of an employee of his qualification in the given locality, but in both cases not less than five times the minimum wage (clause 4 of article 1086 of the Civil Code) are taken into account at his request .

As a result of an injury or other damage to health, the victim can receive only a short-term health disorder, in which he must be compensated for his lost earnings or other income for the entire time of illness. However, the result of causing harm to the health of the victim may be a permanent or irreparable loss of his ability to work. In this case, in order to determine the amount of damage to be compensated, it is necessary to establish the degree of loss of professional ability to work, i.e. the degree of decrease in the ability of the victim to work previously performed by him according to his specialty and qualifications.

The degree of loss of professional ability to work (in percent) is determined by the institutions of the State Service for Medical and Social Expertise, which are part of the structure of the social protection bodies of the population (it is directly determined by medical and social expert commissions - MSEC). Depending on the degree of loss of the indicated work capacity established by the examination, the victim is recognized as a disabled person of one of three groups.

If the victim has no professional ability to work, the degree of loss of his general ability to work is taken into account, i.e. ability to perform unskilled work that does not require special knowledge and skills. It is installed in the same way.

The gross negligence of the victim himself, which contributed to the occurrence or increase of harm, is also taken into account (Article 1083 of the Civil Code). In this case, the amount of compensation is reduced in proportion to the degree of guilt of the victim.

In case of harm to the health of a minor (under 14 years of age) who had no earnings or income, the tortfeasor shall reimburse only additional expenses caused by damage to health and moral damage. Upon reaching the age of 14 by a minor victim, as well as when causing harm to a minor aged 14 to 18 years who does not have earnings (income), the tortfeasor is also obliged to compensate for the harm associated with the loss or reduction of his ability to work, based on five times the minimum wage. If at the time of damage to his health, the minor had earnings, then the damage is compensated based on the amount of this earnings, but not less than five times the minimum wage. After the start of labor activity, a minor whose health was previously harmed has the right to demand an increase in the amount of compensation for harm based on the earnings he receives, but not less than the amount of remuneration established for his position, or the earnings of an employee of the same qualification at his place of work (Art. 1087 GK).

In case of damage to the health of a citizen, along with the lost earnings (income), additional expenses incurred due to damage to health are also subject to compensation, including:

▪ for treatment and purchase of medicines;

▪ additional food;

▪ prosthetics;

▪ outside care;

▪ sanatorium-resort treatment;

▪ purchase of special vehicles;

▪ preparation for another profession.

All these additional expenses are reimbursed to the victim if it is established that he needs the appropriate types of assistance and care and is not entitled to receive them free of charge (paragraph 1 of article 1085 of the Civil Code). Such need must be confirmed by the conclusion of a medical and social examination, and in controversial cases it can be established by the court. When determining the amount of compensation for additional expenses, the fault of the victim in the occurrence or increase in harm is not taken into account (paragraph 3, clause 2, article 1083 of the Civil Code).

In addition, the victim has the right to demand monetary compensation for moral damage suffered by him in excess of compensation for property damage caused to him (Article 151, paragraph 3 of Article 1099 of the Civil Code).

The law contains special rules for compensation for harm caused by the death of a breadwinner. According to these rules, in the event of the death of the victim, who was the breadwinner, the following have the right to compensation for harm (paragraph 1 of article 1088 of the Civil Code):

1) disabled persons who were dependents of the deceased or had the right to receive maintenance from him by the day of his death (minor children, men over 60 and women over 55, disabled people);

2) the child of the deceased, born after his death;

3) one of the parents, spouse or other family member of the victim who does not work and is busy caring for the minors (under 14 years of age) who were dependent on the deceased or in need of outside care for children, grandchildren, brothers, sisters (regardless of age). At the same time, in the event of disability due to age or health status during the period of care by the specified person, the latter retains the right to compensation for harm after the end of care;

4) persons who were dependents of the deceased and became disabled within five years after his death.

The harm caused by the death of the breadwinner is compensated within the time limits provided for in paragraph 2 of Art. 1088 of the Civil Code (for minors - up to the age of 18; for full-time students - until graduation, but not more than 23 years; for women over 55 and men over 60 - for life; for disabled people - during the period of disability, etc.). d.).

Persons entitled to compensation for harm in connection with the death of the breadwinner shall be compensated for the harm in the amount of the share of the earnings (income) of the deceased that they received or had the right to receive for their maintenance during his lifetime (minus the share attributable to the deceased himself). When calculating this share, the shares of all persons, including able-bodied persons, who were dependent on this person, as well as persons who, although they were not dependent on him, were entitled to receive maintenance from him, are taken into account. At the same time, the amount of compensation does not include pensions assigned to persons entitled to it both before and after the death of the breadwinner, as well as the earnings they receive, scholarships and other incomes (clause 2 of article 1089 of the Civil Code). The guilt of the victim in causing his death is also not subject to accounting. At the same time, it is allowed to increase the specified amount of compensation by law or by agreement.

The average earnings or other income of the victim is determined according to the same rules as in case of harm to the health of a citizen. However, the composition of the income of the deceased in this case includes the pension, life maintenance and other similar payments received by him during his lifetime (paragraph 1 of article 1089 of the Civil Code).

The amount of compensation may be increased by law or by agreement (paragraph 3 of article 1089 of the Civil Code). In addition, dependents are entitled to compensation for non-pecuniary damage in excess of the established amount of compensation for property damage they have suffered.

Persons responsible for the harm caused by the death of the victim are obliged to reimburse the necessary expenses for burial to the person who incurred these expenses. The burial allowance received by citizens who have incurred these expenses is not directly counted towards compensation for harm (Article 1094 of the Civil Code), however, it is taken into account when determining the composition and amount of those necessary expenses that should have been made at the expense of the person who actually incurred them. In this case, the guilt of the victim is also not subject to accounting.

Compensation for harm caused by a decrease in the ability to work or the death of the victim is made, as a rule, by periodic, monthly payments. If there are valid reasons, the court, taking into account the capabilities of the tortfeasor, may, at the request of a citizen entitled to compensation for harm, award him the due payments in a lump sum, but not more than three years (paragraph 1 of article 1092 of the Civil Code).

Additional costs are reimbursed through the production of lump-sum payments, and such payments can be repeated. It is possible to reimburse such expenses for the future (paragraph 2 of article 1092 of the Civil Code). Amounts for compensation for moral damage and burial expenses are paid once.

The law (paragraphs 1 and 2 of article 1090 of the Civil Code) provides for the possibility of a corresponding change in the amount of compensation for harm caused to health, in cases where the work capacity of the victim has decreased or increased compared to that which he had at the time of awarding compensation for harm. A similar impact on the amount of compensation for this harm can be exerted by a change in the property status of the citizen who caused the harm (clauses 3, 4 of article 1090 of the Civil Code).

The amounts of compensation paid to the victim or his dependents are subject to indexation in case of an increase in the cost of living or a proportional increase in connection with an increase in the minimum wage (Article 1091 of the Civil Code).

The amount of survivor's compensation paid to specific dependents can also be changed through recalculation in the following cases:

▪ the birth of a child after the death of the breadwinner;

▪ appointment or termination of payment of compensation to persons caring for children, grandchildren, brothers and sisters of the deceased breadwinner (clause 3 of Article 1089 of the Civil Code).

In the event of the liquidation of a legal entity duly recognized as liable for harm caused to life or health, the relevant payments must be capitalized (i.e. separated in the total amount for the entire period of expected payments) in order to transfer them to an organization that is obliged to make payments to the victim in the future according to the rules defined by a special law or other legal acts (paragraph 2 of article 1093 of the Civil Code).

Claims for compensation for harm caused to the life or health of citizens shall not be subject to limitation of actions. However, claims filed after the expiration of three years from the moment the right to compensation for such damage arose shall be satisfied for no more than three years preceding the filing of the claim.

The current Civil Code specifically highlights the rules on liability for harm caused as a result of shortcomings in goods, work or services to life, health or property of citizens or property of legal entities (§ 3 Ch. 59).

Author: Ivakin V.N.

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