CC BY
118SOCIAL AND ECONOMIC METHODOLOGY FOR ASSESSMENT OF COMPENSATION FOR MORAL DAMAGE TO ViCTiMS OF CRiME iN RUSSiA:
PROBLEM STATEMENT
DOI: http://dx.doi.org/10.14420/en.2013A3 web-site: http://bar-association.ru/
LLD, Associate Professor, Chair of Theory of State and Law and International and European Law at the Academy of Federal Service for Execution of Punishment in Russia
The article is devoted to problems of the assessment of compensation for moral damage to victims of crime, calculated using socioeconomic indices and depending on the social danger level of the moral damage. Attention is focussed on the degree of physical and moral suffering connected with individual peculiarities of the harmed person, and the introduction of differentiated rates of compensation for moral damage to the injured party, depending on the offence committed by the guilty person and the harmful consequences, is offered.
moral damage; injured persons; compensation; suffering; danger level.
Compensation for moral damage to an injured person in Russia must be efficient and be performed preventive and compensatory function, taking into consideration all social consequences of the offence. This is because the suffering of an injured person may be associated for them with additional social ills connected with medical treatment, loss of their job, and/or permanent disablement. In addition, the compensation awarded for moral damage must be realistic as regards the amount of its payment on the part of the guilty person. More than that, the amount of compensation must have a legislatively limited threshold and differentiate between the way harm was caused (crime, administrative offence, civil tort, labour offence) to the injured party and its consequences. That's why in setting a legislatively limiting threshold of amount of compensation of moral damage regard is to be had to way of causing of harm to injured person differentiated by social danger level and character of occurring consequences as well as adverse effect on injured person.
We thus propose to set differentiated amounts of compensation for moral damage to injured parties depending on the offence committed by the guilty person and the resulting harmful consequences. To do this, it is necessary to supplement the Civil Code of the Russian Federation (CCRF), submitting substantial corrections to provisions of the corresponding articles, namely:
Sergey Vorobyov,
Summary.
Keywords:
Part 2 Art. 151 CCRF to be amended to read as follows: «Assessing the amount of compensation for moral damage the court takes into consideration the degree of the offender's guilt and other circumstances worthy of note. The court must also take into consideration the degree of physical and moral suffering connected with individual peculiarities of the harmed person and the data of expert examination acquired during carrying out statutory forensic medical and psychological expert examination»;
Part 2 Art. 1101 CCRF, to be amended to read as follows: «The amount of compensation for moral damage is determined by the court depending on the character of physical and moral suffering inflicted upon the injured person, the degree of guilt of the harm-doer in cases when guilt is grounds for compensation for harm, as well as takes into consideration the data acquired from the statutory forensic medical and psychological expert examination. During determination of the amount of compensation for moral damage, demands of reasonableness and justice must be taken into consideration».
The amount of compensation for moral damage must be based on the findings of medical and psychological expert examinations of the injured person determining the state of their physical health and psychological happiness, interior constituents of their moral and physical suffering, their character and degree. The data acquired during the expert examination will be direct evidence of moral damage inflicted on the injured person as a result of the offence by the guilty person.
The amount of compensation for moral damage is to be determined, in our opinion, on the basis of the degree of physical and moral suffering connected with individual peculiarities of the harmed person, taking into consideration the provisions of Art. 151 CCRF. Statutorily, the meaning of 'characteristics of degree of suffering' is not disclosed, however, and in this connection it is possible to suppose that this requirement indicates the danger of suffering for the injured party. Its degree, as a result of moral damage inflicted, would be different and individual for every person. The suffering indicated in Art. 151 CCRF, taken into consideration in determination of the amount of compensation of moral damage, is identical to characteristics used by law-makers in construction of the determination of moral damage. The special traceable aspect in that case makes it possible to affirm that the degree of moral and physical suffering must determine the level of danger of moral damage. Consequently, it is necessary to enact into law the levels of danger of moral damage, on the basis of which differentiated amounts of compensation will be determined.
The level of danger of moral damage is understood to be an accumulation of adverse physical and psychological changes of the injured person's state of health caused by infliction of physical and moral suffering on them as a result of an offence committed against them, the consequence of which is moral damage. The level of its danger is a quantity directly proportional to the individual drama of the (injured) person because of adverse consequences suffered by them and caused by the crime (offence).
Taking into account the foregoing, we propose to make changes in the provisions of Art. 151 CCRF, within the frame of which it is desirable to set the levels of danger of moral damage and the amounts of its compensation. The basis of the delimitation of moral damage danger level must, from our point of view, be
Sergey Vorobyov «Social and economic methodology for assessment of compensation for moral damage to victims of crime in russia: problem statement»
the medical and juristic characteristics used for determination of a person's state of health in the case of damage inflicted, namely - the gravity of the damage caused to health. When determining danger levels of moral damage it is necessary to proceed on the basis that intangible benefits undergo the biggest substantial changes as a result of a crime committed. When constructing the definition mechanism for the amount of compensation for moral damage it is necessary to have regard for characteristics of the constituent elements of the offence as provided for by Arts. 111, 112, 115 of the Criminal Code of the Russian Federation. Taking into account the legislative distinctions of those constituent elements of offence, we suppose that the amount of compensation for moral damage can be determined with the following formula:
ACMd = Nd/1xMRLp , where ' life expectancy
ACMd. - amount of compensation for moral damage;
N.d/l - number of deprivation of liberty years for commission of offences provided for by Art. 111, 112, 115 of Criminal Code of the Russian Federation;
MRLP - Minimum Rate of Labour Payment;
We define the average level of life expectancy in the country by life span of men observed in 2011, because it is less than that of women (men in Russia live now 64,3 years, and women - 76,1 years)1.
Knowing the indicated values we can calculate the amount of compensation for moral damage in the commission of an offence, e.g. that provided for by Part 1 Art. 111 of Criminal Code of the Russian Federation:
ACMd . = ^i5-205 = 647,500 roubles, where 64,.3
8 - number of years of imprisonment set as the punishment by Part 1 Art. 111 of Criminal Code of the Russian Federation;
5,205 - minimum rate of labour payment in Russia from 01.01.2013;
64,3 - demographic index of average standard of life of Russians in 2012.
Accordingly, if moral damage danger levels are directly connected with the injured person's state of health, it will be desirable for a law-maker to enact into law three moral damage danger levels (the first level of its danger depends on indicators of grave bodily injury; the second level of danger on indicators of moderate bodily injury; the third level on indicators of minor bodily injury).
Consequently, the foregoing methodology for calculation of the amount of compensation for moral damage and classification of levels of its danger will make it possible for the court to determine more sensibly the amount of compensation for moral damage, and to assess compensation taking into account the consequences of the crime as well as socioeconomic and demographic indicators.
1 Nevinnaya I. Complicated age. Will Augmentation of Age of Retirement Help Today’s Pensioners? //
Rossiyskaya Gazeta: [website]. URL: http: // www.rg.ru/2010/07/15/vozrast.html.
References
Nevinnaya I. Complicated age. Will Augmentation of Age of Retirement Help Today's Pensioners // Rossiyskaya Gazeta: [website]. URL: http: // www. rg.ru/2010/07/15/vozrast.html.
