21 January 2016
August 17 the Armed Forces adopted the act, which should serve as a guide to courts in proceedings for compensation for moral damages to legal entities. The Civil Code, in its original version, and up to 1 October 2013 contained a provision stating that a legal person in respect of whom information discrediting its business reputation, has the right alongside with a refutation of such information, to claim damages and moral damages. In this regard, the jurisprudence also appeared indication of a similar right organization. In this position the highest court in this matter have not been unambiguous. In his commentary portal Garant.ru Artem Anpilov understand this situation.
August 17 the Armed Forces adopted the act, which should serve as a guide to courts in proceedings for compensation for moral damages to legal entities (Determination of the Armed Forces on August 17, 2015 №
The Civil Code, in its original version, and up to 1 October 2013 (Federal Law of July 2nd, 2013 №
In this position the highest court in this matter have not been unambiguous.
So, the SAC pointed out that the
In turn, the Constitutional Court said that the legal person is not deprived of the right to make claims for compensation for damages, including intangible, caused by depreciation of goodwill (Determination of the Constitutional Court on December 4, 2003 №
However, because the Civil Code, as already indicated, subject to all the rules on protection of honor and dignity of citizens to protect the company of its goodwill, this is not fully defined in terms the position of the Constitutional Court gave legal entities able to claim compensation for their
October 1, 2013, amendments to the Civil Code, eliminating any doubt that such a method of protecting civil rights, such as compensation for moral damage, can be applied only in respect of a natural person. And in Sec. 11, Art. 152 of the Civil Code is now clearly stated that the protection of business reputation of the company subject to the same rules that apply to the protection of the rights of citizens, except for the provisions of the
However, even after the amendment jurisprudence continued to vary, and this was a good reason. Lawyer law office «Legal Forward» Roman Gander draws attention to the fact that to satisfy the requirements of legal persons for moral damages, the courts were based primarily on the hour. 4 Art. 15 of the Constitution of the Russian Federation on the priority of international norms over national (Resolution of the Seventeenth Appellate Court on October 6, 2014 number
That is why lawyers are so eagerly awaited as the Russian Armed Forces will resolve the current conflict of Russian and international law. However, the Court has determined that the issue is not affected. However, the Armed Forces stressed that the rules of the moral harm to entities not subject. We consider this matter in more detail.
The essence of the dispute
Based on the decision of the court (decision of the Arbitration Court of Perm region from January 27, 2014 №
March 17, 2014 the writ was sent bailiffs and received their March 27, 2014. May 5, 2014 the company sent a request for bailiffs during enforcement proceedings. Receiving no answer, 27 August the same year the applicant applied to the court bailiffs to
As both the request FSSP Russia were left unattended, the company filed a lawsuit to recover from the state 49 666.53 rubles. for
One of the main tasks of the executive production is the correct and timely execution of judicial acts (Art. 2 of the Federal Law of October 2, 2007 №
With regard to the validity of claims for compensation for moral damages to the plaintiff, the court pointed out that part of the Russian legal system is the Convention for the Protection of Human Rights and Fundamental Freedoms, including the practice of the European Court of Human Rights (Art. 15 of the Constitution). Thus, in the judgment of the European Court of Human Rights of 6 April 2000 in the case «Case» Komingersoll SA «(Comingersoll SA) against Portugal," it was noted that the Court can not exclude the possibility of an award of compensation for
Thus, the European Court of Human Rights in determining the question of compensation entity impaired intangible good does not come from the fact that physical and moral suffering of the legal entity, and the fact of prolonged uncertainty in the adoption of a decision. That this argument was accepted as a basis for the Court of First Instance.
Since the plaintiff for a long period of time is not notified of the measures aimed at the performance of a judicial act, the court concluded that the company was in a state of uncertainty, and this fully justifies an award of compensation.
The amount of compensation for moral damages, the plaintiff arbitrarily defined as the 50% of the outstanding amount of the writ of execution was 49 666.53 rubles. The Court considered this requirement proportionate and found no reason to reduce it.
Appeal and cassation recognized the decision lawful and justified and upheld it (the decision of the Seventeenth Appellate Court on 19 February 2015 number
The position of the Russian Armed Forces
The findings of the lower courts the Armed Forces considered wrong for the following reasons.
He recalled that when the citizen has suffered moral damage, the court may impose on the offender the obligation to compensate such damage (para. 1, Art. 151 of the Civil Code).
The Court said that under the moral damage meant mental or physical suffering caused by the actions (or inaction), infringing on belonging to a national intangible benefits or violating his personal
Armed Forces of the Russian Federation also stressed that
Thus, from the literal content of the above provisions of the Court concluded that compensation for moral damage is only possible in the event of
However, since the right to a legal person demand for compensation of moral damages in the law expressly provided, the Armed Forces concluded that the reasons stated by the plaintiff to meet the demands were not available.
However, not all lawyers are inclined to believe that the imposition of the Armed Forces definition completely close the possibility of compensation for moral damage to a legal entity. «Said definition of the Armed Forces includes an internal contradiction — on the one hand, it concluded that the legal nature of the
Cases for compensation for moral damage vs. case on protection of business reputation
As mentioned above, the Constitutional Court found it possible to demand compensation for
— existence of a wrongful act on the part of the defendant;
— occurrence of adverse effects of these actions to the claimant;
— causal link between the actions of the defendant and the occurrence of adverse effects on the side of the plaintiff.
IT IS INTERESTING
The jurisprudence on the issue of the need for the plaintiff to prove the amount of damage done when a statement of claims for «reputational» harm and went different ways. One of them, says Olga Benedskaya was the complete identification of intangible losses with ordinary losses — as a result, companies had to prove their size (the decision of the Presidium of the Russian Federation of July 9, 2009 № 2183/09). Another way was recognized for legal persons of the right to compensation «reputational» harm on the rules on compensation for moral damages without having to provide evidence of its size (FAS NWD Resolution of 26 May 2006 in the case number
Thus the plaintiff need not prove the defendant’s guilt, because it is not a necessary condition of responsibility for damage due to the spread information discrediting business reputation (Art. 1100 Civil Code).
According to Artem Anpilov, many judges did make a distinction between the moral and the «reputational» harm: moral damage, according to them, legal entities are not typical, and intangible (reputation) damage is quite admissible (judgment Eighteenth Appellate Court on August 4, 2014. №
Nevertheless, a number of courts interpreted literally made to the Civil Code to the October 1, 2013 changes and refused to refund legal entities even a «reputational» damage (judgment of the Fifteenth Arbitration Appeal Court of May 19, 2014 number
Therefore, a determination, according to Artem Anpilova is expected and logical course of the Court, including those aimed at streamlining and jurisprudence on the issue of demarcation of cases of recovery of legal persons for moral damages and disputes about the protection of business reputation. Experts also tend to believe that this judicial act will not have a negative impact on practices related to the satisfaction of the requirements for compensation «reputational» harm organizations. Roman Husak convinced: «Even if the practice courts will unfold in the opposite direction and begin failures in meeting the demands for compensation for damage the reputation on the basis of p. 11 of Art. 152 of the Civil Code, legal entities still have chances to defend the right to compensation in the COP the Russian Federation. It is very likely, will confirm its position on the admissibility of compensation for