Terms of Origin of Liabilities on Compensation for Moral Damage

Abstract

The article investigates the terms of origin of liabilities on compensation for moral damage and development of proposals and recommendations on this issue. It is indicated that the basis of compensation for moral damage is the general tort envisaged in Art. 1167 of the Civil Code of Ukraine “Bases of responsibility for the incurred moral damage”; the initial conditions are availability of moral damage, unlawful conduct of the person who has inflicted the damage, the availability of relations between cause and effect, guilt.

The signs of moral damages include the following: self-harm which can be inflicted either with or without property damage; non-property damage, as non-property sphere of physical person suffers i.e. mental health; the damage which may occur due to violation of property or non-property personal rights; the damage which is a derivative of property damage and is initial in case of humiliation of honour, dignity and business reputation; the damage which is manifested through the emotional suffering of an individual; the moral damage generated only due to significant emotional suffering of the individual but not due to any excitement or a common nuisance and it cannot cause a significant impact on the life, activity and human conduct; a property nature of compensation for moral damage. The availability of moral damage is a compulsory condition of liabilities on compensation of moral damage. Thus, it is necessary to apply the presumption of moral damage in case of violation of all personal non-property rights and the benefits of an individual.

It is reasonable that compensation of moral damages should always have a property character, because it is an independent event of civil liability, which should spawn an occurrence for offender of additional property losses.

It is noted that the task of any moral damage can be unlawful in case either the norm of civil law or the personal non-property right of an individual is violated and if the person who has inflicted the damage, was not authorized to do it. The unlawful nature and the forms of unlawful conduct of the person who has inflicted the moral damage (action, inaction, decisions) depend on the types of violations.

It is pointed out that establishment of causal relation as unlawful violation of the civil right of a person (cause) and the onset of moral damage (effect) allows clarifying: 1) the availability of a civil offence; 2) the subject of liability; 3) the amount of compensation for moral damages.

The initial principle of compensation for moral damage is the guilt of the person who has inflicted the moral damage, which means subjective expression of the person's attitude to his unlawful acts and their consequences.

In some cases it is necessary to find out the form of guilt of the person who has inflicted the moral damage in order to make him liable for such damages.