Causing real damage, loss, harm in life is quite common. In this regard, many questions arise. Some of them will be considered in this article.
Differentiation of losses, damage, harm
The use of the listed terms indiscriminately in everyday conversations and official correspondence has led to confusion in their understanding. Despite the similarities between themselves, these expressions carry different semantic load.
The law discloses the legal concept of real damage and loss. Losses are material investments that a person is forced to make in order to restore his rights or property.
Legislation has added another type of loss - lost profits.
The first concept means the amount of expenses that a person or organization incurs to restore their rights or property. For example, a taxi owner is forced to repair a car instead of continuing to use it in order to generate income.
Loss of profit includes the income that the victim could have received if the damage had not been done. In the case of the owner of a taxi - this is the money that he could get if it were not for the damage to the car.
Harm is a broader category, which includes damage of a tangible and intangible nature. For example, a violation of the human rights of a person, his inviolability is difficult to assess materially, the same applies to causing serious harm to health.
Legislative regulation
Art. 15 of the Civil Code of the Russian Federation gives a basic understanding of what damage is. What role wine plays is described in other articles of the Code, but a significant portion of them are general in nature.
A lot of normative documents have been adopted concerning compensation for harm in various areas of life. For example, the relevant provisions are contained in the documents regulating the energy sector, the norms on social insurance, and they are in other areas of law.
As a rule, these provisions are already specific, with their help it is easy to make the necessary calculations.
Where it is difficult to write a specific rule or there is confusion in the application of existing legislation, judicial practice helps. For example, in the case of moral harm.
Various techniques have been developed aimed at assessing harm or damage. They are used in litigations, where the issue of real damage is raised.
The emergence of a claim
The obligation to compensate for real damage arises from the agreement of the parties to the contract or from other actions in the absence of a contract.
From a contractual relationship, an example is a construction contract. The customer may be faced with the need to correct deficiencies made by the contractor. This is a full reason to demand payment of losses.
The supplier did not fulfill obligations, due to which the customer lost revenue without producing the required volume of products that he needed. In both cases, the agreements provide rules for calculating the amount of damage.
If harm is caused as a result of the accident, the court considers the case, first of all, on the basis of the law, and not the points of agreement between the parties.
The contract, of course, must comply with the law, but within a certain framework a serious adjustment of the provisions on liability is possible.
Right to claim
To claim damages and real damage depends on the desire of the injured party.The law gives such a right, and to realize it or not depends on the intentions of the participants in the incident.
The plaintiff is obliged to prove that the damage was caused to him or that he has the right to demand compensation on behalf of another person, or the dispute otherwise affects his interests.
In addition, consumer citizens and entrepreneurs and commercial organizations receive the right to claim, having previously filed a claim. Lack of evidence of treatment will complicate the process of opening a case in court. So, these two requirements should be taken seriously.
Which court to apply to
Disputes between entrepreneurs are resolved by the arbitration courts, the price of the claim does not matter. If there is a civil dispute, where one of the parties is a citizen who does not have an entrepreneurial interest in the case, the case will be considered in a district or world court.
Justices of the peace are involved in petty disputes at the cost of up to 50 thousand rubles, and district courts are more serious in handling disputes.
A case initiated by a magistrate court may be referred to a district court if the judge finds out that the amount of losses and real damage exceeds the bar of 50 thousand rubles. The basis is the conclusion of an expert appraiser.
Features of preparation for litigation
Damage litigation differs in both quantity and specificity. For example, there is a significant difference between disputes regarding the recovery of damage caused by flooding of an apartment and an accident. Various acts of legislation, practice.
Recovery of damage caused by the actions of law enforcement agencies has its own specifics. The only thing that unites them is a link to Art. 15 of the Civil Code of the Russian Federation.
For example, responsibility for flooding an apartment lies with the owner of the premises, whoever was there at that time, even if at that time it was officially rented out. He then has the right to present all claims to the real culprit in a separate lawsuit.
The underlying document is the flooding act, approved by the managing organization. She makes a defective act. They contain a description of the damage and their assessment.
In an accident, it is important to wait for the police officer to compile the materials and then send them to the court. In parallel with this, issues are being resolved with the insurance company.
Her specialist draws up the paper, the car is sent for examination, which issues an assessment of real damage. I must say that it always raises complaints and provokes legal disputes with insurers.
Illegal actions of authorities are confirmed by court decisions that recognize the fact of illegal actions and annul them.
The right to rehabilitation due to the illegality of the criminal prosecution is confirmed by a court verdict.
If the violation provides for administrative punishment, then the court will need to present an administrative report or a court order or commission issuing the final decision.
Their absence leads to a loss of the case due to the inability to prove the fact of the event.
Damage assessment
As described above, various techniques are used to assess real damage. For example, the methodology for calculating damage caused by non-fulfillment or dishonest performance of obligations is still formally in force.
The difference in methods makes it difficult to decide how much to assess the damage. For example, the assessment of car repair by different experts differs by several tens of thousands of rubles.
Each method of calculating real damage has its advantages and disadvantages. They are based on different criteria. For example, the prices of components for a car can be taken from several sources.
The average apartment repair estimate is calculated from the average market price. To obtain this value, different prices can be taken into account.
The calculation of the amount is carried out in several stages:
- drawing up estimates of work or property repairs based on the market value of works or objects in the region;
- degree of wear (applies to both cars and buildings);
- summarizes the results of the calculation of the amounts and degree of wear.
Assessment and jurisprudence
The ordered appraiser report prior to the trial has the status of simple written evidence. He is much more critical of him than the expert’s opinion. The difference is the responsibility for errors and the procedure for the appointment and conduct.
The judge, as a rule, appoints an examination, poses questions to the expert and sends them to the selected organization or to the selected expert. If for some reason the court does not agree with the conclusion, a new examination is appointed by one or another expert. Judicial practice on real damage knows such cases.
The credibility of the expert’s conclusion is an exclusively subjective moment. First of all, it is required to convince the court to appoint an examination for assessment, it is even more difficult to achieve the appointment of a new one. If the court agrees to this, it is also difficult to convince him of the correctness of the conclusions reflected in a later examination.
As for the amounts that victims receive, each region has its own “fees” that citizens and organizations receive for violating their rights. Especially when it comes to moral damage.
Significantly different court decisions regarding compensation for housing flooding.
One can only name the amount for illegal prosecution in criminal procedure, because one technique is applied nationwide.
Drawing up a claim
The statement of claim is made according to a single scheme:
- court name or magistrate's number;
- information about the plaintiff (name of person or name of organization), address;
- information about the defendant (name of the person or name of the organization), address;
- statement of circumstances of the case, sequence of events;
- references to evidence, legislation;
- claims (to recover damages in the amount and indicate the amount);
- claims for real damage and loss of profit are set out separately;
- inventory of attached copies of documents;
- Signature and date of delivery of documents to the court or sending them by mail;
- attached receipt of payment of state duty.
Duty Size
The amount of real damage and unearned income is the amount from which the duty is calculated. For citizens and entrepreneurs, it is different. The calculation formula is set out in the section of the Tax Code devoted to the payment of state duty when filing a lawsuit.
Consumers, citizens who have lost their health or lost a breadwinner, as well as those who have illegally started criminal cases, are exempted from duty.
The appeal complaint is paid by half of the amount that was paid when the lawsuit was filed with the first instance or would have been paid if the plaintiff had previously used the privilege.
Cassation costs a little more - half the amount plus a percentage. Similarly, the duty is calculated when filing a supervisory appeal.
Before accepting a case for proceedings, a judge may adjust the amount of the fee and oblige him to make an additional payment so that the case can be accepted for production. If a judge has issued a ruling on the opening of proceedings, he is not entitled to apply the consequences of non-payment or incomplete payment of a fee. Statements of the other party on this score after opening the case are also not accepted.
Evidence scheme
In a lawsuit, the parties are required to prove the facts to which they refer. Cases based on compensation for real damage under the Civil Code of the Russian Federation have their own specifics in this regard.
The plaintiff must prove:
- the fact of damage by the defendant;
- unlawfulness or illegality of the actions of the defendant;
- justify the amount of damage and lost profits;
- the relationship between the actions of the defendant and the damage.
The defendant, in general, has one duty - to prove the absence of his guilt in what happened. If he was not guilty, he is relieved of responsibility.
If he refers to any other circumstances or facts that refute the position of the plaintiff, he is obliged to provide evidence to the court.An active position will increase the chances of winning a dispute or reduce the amount at which the plaintiff estimates the real damage.
In practice, confusion often occurs, and judges automatically recognize the fact of harm by the defendant. Although it has not yet been established, further consideration of the dispute does not make sense.
Now about the causal relationship between the actions of the defendant and the damage. In the case of an accident there are no problems. When it comes to flooding an apartment, establishing a connection, serious problems arise. In addition to the appraisal examination, a construction and technical examination is also appointed. It aims to identify whose actions caused the incident.
In this category of cases, a unified approach to resolving the issue of causation has not yet been developed, and confusion often arises.
Features of recovery in labor law
Direct real damage or, rather, direct real damage - a category applied in labor law. Its essence is the obligation of the employee to compensate the damage caused by him in full.
Workers under the age of 18 are held fully liable subject to:
- commission of an act under the influence of alcohol, drugs, other toxic substances;
- committing an administrative misconduct or crime;
- intentional damage to property or other actions leading to damage;
All other employees are involved on the same grounds, in addition, the full responsibility is the employee with whom there is an agreement on full liability.
The peculiarity of the process lies in the obligation of the court to verify the legality of the claims for full reimbursement, in particular, whether the agreement on full responsibility complies with the law.
Whether there is employee fault or damage caused in extreme circumstances. The plaintiff may be denied the claim, provided that the employee acted professionally and the damage arose due to circumstances that he could not influence in any way.
How to recover damages in practice
A significant part of situations with causing damage to property does not reach the court. For example, the victim is ready to dispense with the proposed amount or accept repairs carried out by the culprit or people hired by him. Someone offers in exchange for damage to transfer the existing property.
Similarly, issues between workers and employers are resolved. The former do not want to lose their earnings, the latter do not want workers. In addition, the adoption of a decision by the court does not mean payment of the entire amount, especially if the culprit is an ordinary citizen who does not have serious income. And so there is a chance to get at least some refund.
But it is much easier to recover money from an insurance or management company - there is always enough money on their accounts.