The harm caused to the life of a citizen is the consequence of the unlawful behavior of the damage causer, expressing in death (deprivation of life). Harm to the health of a citizen is the consequence of unlawful behavior of the injury, which is expressed in the emergence of painful changes, physical defects (injury, occupational disease, etc.).

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Introduction

In accordance with Art. Art. 7, 20, 41 of the Constitution of the Russian Federation The right of every person on life is dominant among the fundamental rights and freedoms of a person and citizen, inalienable and belonging to everyone from birth. This is confirmed in paragraph 1 of Art. 150 of the Civil Code of the Russian Federation, in which life and health are included in the list of goods owned by a citizen from birth.

Relevant relationships are also regulated by federal laws and other regulatory acts.

In the conditions of scientific and technical progress, the emergence of more sources of increased danger, expanding the sphere of human activity and other modern factors, in particular, the deterioration of the environmental situation capable of harming the life and health of people, it is obvious that the study of the problem of compensation for harm in the Russian Federation with each The year is becoming increasingly relevant.

Currently, there are very often cases of violation of civil rights, in connection with which the most important task is to ensure the most equitable, rapid and efficient restoration of violated law and compensation for damage caused. One of the main types of harm, which can be caused by man is the harm of life or health.

The rights and freedoms of a person, as they are subject to protection and protection, are implemented primarily in the protective legal relations that arise in all branches of law.

In civil law, one of such protective legal relations (of course, far from the only) is the legal relationship of compensation for harm caused to life and health of a citizen.

As noted in the Civil Code of the Russian Federation, life and health are personal non-property benefits that have no money assessment.

The purpose of this course work is to consider the problem of compensation for damage to life.

Based on the goal set in the work, the following tasks were formulated and allowed:

Consideration of the essence, the values \u200b\u200bof obligations due to harm;

Consideration of certain types of obligations due to harm;

Consideration of the problem of compensation for harm caused by a citizen.

Chapter I. General provisions on obligations

Due to harm

1.1Stitude, meaning and subjects of obligations due to harm

The obligation is a civil legal relationship in which one person (debtor) is obliged to make certain actions in favor of another person (lender) (transferring a thing, to carry out work, to provide services, etc.), and the lender has the right to demand the fulfillment of his duty from the debtor.

According to Articles 8 and 307 of the Civil Code, legal facts are the grounds for the emergence of obligations. These include contracts, other transactions as provided for by law and not provided for, but not contradictory, causing harm to another person, etc.

Depending on the basis of the occurrence of the obligation to compensate the caused harm differences the contractual and non-delicate or delicate (from Latin delictum - violation) responsibility.

Determination of the concept of obligations arising from the cause of harm does not give the law. However, the main idea characterizing it is contained in paragraph 1 of Art. 1064 of the Civil Code of the Russian Federation, according to which: obligations due to harm (delicate liabilities) are the responsibility of the person who harm the personality or property of a citizen or property of a legal entity, compensate the damage caused in full1 .

The main thing that is stated in this norm is to establish the obligation of the person who caused damage to compensate the damage. The right of the other side is not directly mentioned. But the law is definitely due to the right of the victim to demand compensation of harm, because the obligation can exist only in relation to the subject having the right to require its execution.

Therefore, there is an obligatory legal relationship, which can be determined as follows: due to the obligation due to the harm of the person who caused the personality or property of another person (physical or legal), is obliged to compensate the damage caused in full, and the victim's face has the right to demand that Harm suffered by them was reimbursed.

part 1 Art. 20, part 1 Art. 41) 2. and refers to the number of basic inalienable rights and freedoms.

To disclose the legal nature of the obligation arising from the cause of harm, it is necessary to determine its relationship with the category of responsibility. In the literature, the concept of "commitment from harm" and "responsibility for causing harm" is often used as identical, and the concept of "responsibility" is given the main place. Such a position was reflected in the Civil Code of the Russian Federation: Chapter 59 of the Civil Code was named "Obligations due to harm", and the first article of this chapter is devoted to the general grounds for liability for the damage caused. In the future, the law uses mainly the concept of "responsibility", and not the "obligation." It seems that the noted use of concepts does not contain contradiction. It is due to their close interconnection.

Alekseev S.S. Notes that obligations due to harm (delicate liabilities) are innovative obligations. The injury in this obligation acts as a debtor, and the victim is a lender. It is obvious from the being of the obligation, it is obvious that its parties have not been associated with contractual relations or damage has not followed from an existing agreement. The content of the delicate obligations is civil liability, i.e., underpracting, carrying the well-known burden, additional burden, acting as a legal consequence for the perfect offense. The essence of the delicate commitment is also due to its main functions - compensation (reducing) and protective3 .

The basis of the occurrence of a delicate commitment and at the same time legal fact that generates the relevant legal relationship is the harm caused to the personality or property of a citizen or the property of a legal entity. Under harm, unfavorable property and non-property consequences are understood.

At the same time, modern civil legislation allows reimbursement not only actually harm, but also protects against the danger of harm in the future (Article 1065 of the Civil Code of the Russian Federation)4 .

The basic principle of the obligation due to harm is to complete the harm to the person who caused it. In the literature, this principle is referred to as a general delicate, according to which the anti-action and guilt of the injury is designed.

Parties in obligations due to harm in common rule, citizens, legal entities, Russian Federation, constituent entities of the Russian Federation, municipalities may appear. The person who is obliged to compensate the damage caused by the debtor in this obligation. The person, property or non-property rights of which is harmful, is the victim and in a delicate commitment - the lender.

1.2 Separate types of obligations due to harm

Zenin I.A. Notes that the set of these obligations (Article 1064-1101), as well as the other type of non-rejection obligations - obligations due to unjust enrichment (Article 102-1109 of the Civil Code), forms an independent sub-institute in the framework of such an institution as certain types of liabilities5 .

Moreover, the specificity of individual groups of obligations due to harm caused their separation within the framework of HL.59 GK and the allocation of general harm reimbursement provisions (Article 1064-1083), on the basis of which GK regulates the compensation of harm caused to life or the health of a citizen (art. 1084-1094), compensation for harm caused due to the disadvantages of goods, works or services (Article 1095-1098), and compensation for moral damage (Article 1093-1101).

Formulating the general basis for liability for causing harm, the GC establishes the principle of full compensation for harm caused by the person or property of a citizen, or the property of a legal entity, as a rule, by the person who caused harm (p.1064).

Obligations due to harm may be classified by various criteria, including:

A) the characteristics of the injury,

B) the nature of harm;

C) the nature of illegal actions.

Depending on the personality of the cause, notes Alekseev S.S. The harm caused to:

Minors under the age of fourteen (juvenile);

Minors aged from fourteen to eighteen years;

Incapable;

A person who could not understand the meaning of his actions or lead them;

Government agencies, local governments, as well as their officials;

Inquiry authorities, preliminary investigation, prosecutor's office and court;

A legal entity or citizen for harm caused by his employee.

By nature harm:

Harm caused to property;

Harm caused to life and health;

Moral injury.

Depending on the nature of the unlawful activity, it is allocated:

Damage caused by the source of increased danger;

Harm due to disadvantages of goods, works or services6 .

Responsibility for harm caused by minors and incapable citizens. The overall peculiarity of this group of legal relations is that the harm caused by such citizens, the responsibility (direct or subsidiary) is not direct injuries, but other people mentioned in the law. The obligations of these persons due to harm are independent, form their own composition of the conditions (harm, unlawful actions, wines, causal communication) of civil liability. The fault of parents (adoptive parents, guardians, trustees) is the failure to surveillance for minors, irresponsible attitude to their upbringing, illegal use of their rights towards children (connivance or encouraging mischief, hooligan actions, the neglect of children, lack of attention to them, etc. .), which was the result of unlawful behavior, entailed harm. Parents (adoptive parents, guardians, trustees, institutions and organizations that carry out education or supervision) are exempt from liability for harm caused by minor or incapacitated citizens if they prove the absence of their guilt.

The unlawful actions, therefore, include both improper education and inappropriate supervision of harm entities. A separately residual parent carries equal responsibility with the parent who lives with the child. If the parent for the fault of another parent was deprived of the opportunity to participate in the upbringing of his child, the court can free him from responsibility.

For a parent, deprived of parental rights, the court may impose responsibility for harm caused by his minor child for three years after the deprivation of parental rights, if the behavior of a child who caused harm caused by the result of the inappropriate implementation of parental duties.

Responsibility for harm caused to minors under the age of fourteen (juvenile) are carried:

a) his parents (adoptive parents) or guardian;

b) an organization for orphans and children left without parental care if the minor was placed under supervision;

c) an educational, medical or other organization obliged to exercise supervision;

d) a person supervising on the basis of the contract.

In addition, the Court may consider the property

the victim and causer of harm, as well as other circumstances, decide on compensation of harm in whole or in part due to the damage itself, with a set of conditions:

Parents (adoptive parents), guardians died or do not have sufficient funds for compensation for harm caused to life or the health of the victim;

Harm's injury became fully capable;

Harm causer has the necessary means.

The obligation of parents (adoptive parents), guardians, educational, medical and other organizations to reimburse the harm caused by juvenile, does not stop with the achievement of minor ages or receiving the property sufficient to compensate for harm.

As a general rule, minors aged from fourteen to eighteen years are responsible for the harm in general reasons. In the case when a minor at the age of fourteen to eighteen years has no income or other property sufficient to compensate for harm, harm must be reimbursed in whole or in the missing part.

Consider a details the problem of compensation for harm caused to life.

Chapter II. The grounds and conditions of delicate responsibility

2.1Verh as a basis for delicate responsibility

Harm (harm) is an indispensable, obligatory basis of delicate responsibility7 .

In the absence of harm, the question of the delicate responsibility may not occur.

Under harm, as the basis of deliberate responsibility is understood to be unfavorable for the subject of civil law, property or non-property consequences arising from the damage or destruction of the property belonging to it, as well as as a result of injury or death to a citizen (individual).

As indicated in paragraph 1 of Art. 1064 GK, harm can be caused by the "personality" or "property"8 .

Causing harm to property (property harm) means a violation of the property sector in the form of a decrease in its property products or the diminution of their value. Sometimes property harm is determined as a difference between the material position of the victim before causing harm and after.

In case of harm to the personality, the object of the offense is the intangible benefits - the life and human health. But in the event of a commitment from the causation of such harm, mainly property consequences are taken into account, i.e. Removal is subject to property harm. Only in cases stipulated by law, moral damage is also allowed (paragraph 1 of Art. 151, paragraph 2 of Art. 1099 of the Civil Code). For example, with damage to the health of a citizen, harm is expressed in the loss of the injured earnings, in expenditures for treatment, care, etc. But along with this, i.e. Regardless of the compensation of property harm, moral damage is also possible (clause 3 of Article 1099 of the Civil Code).

Property harm is often referred to as the damage. For example, a citizen has been enshrined in the Constitution of the Russian Federation to compensate for damage. The GC consistently uses the term "harm". However, sometimes the word "damage" is also found. For example, in Art. 1088 Provides compensation to persons suffering damage as a result of the death of the breadwinner.

The basis for liability for causing harm can be divided into actual and legal. The actual reason is causing harm to one person to another. The legal basis is the law guarding the property situation of the victim and prescribing the causer to compensate the damage caused. However, for the occurrence of this obligation is not enough. There are still certain conditions.

Conditions in all cases, as Gatin, A.M., are:

1) harm;

2) anti-viability of the behavior of the injury;

3) the causal relationship between illegal behavior and harm (Article 1064 of the Civil Code of the Russian Federation)9 .

In most cases, the condition of the responsibility is also the guilty of harm caused, but the law provides cases where the obligation arises regardless of the presence or absence of guilt of the injury.

These grounds are common, since the listed composition is necessary, unless otherwise provided by law (for example, the liability for harm caused by the source of increased danger occurs independently of the guilt of the damage causer).

The damage caused to the person or property of a citizen, as well as the harm caused to the property of a legal entity, is subject to compensation in full by the person who caused harm. The law of the responsibility of harm compensation may be assigned to a person who is not harmful.

The law establishes the presumption of guilt damage.

By virtue of this, the person who caused harm is exempt from compensation for harm, if he proves that the harm is not caused by its fault.

The harm caused to legitimate actions is subject to compensation in cases provided for by law. In reimbursement, harm may be denied if the harm caused at a request or with the consent of the victim, and the actions of the injury does not violate the moral principles of society.

It is possible to cause harm and legitimate actions to which the actions committed in the state of the necessary defense and extreme necessity. However, the question of the occurrence of liability for harm caused by such actions is solved in the Civil Code of the Russian Federation in different ways for each of them: the harm caused in the state of the necessary defense is not refundable if it has not exceeded its limits; At the same time, the harm caused in a state of emergency, i.e. To eliminate the danger threatening the damself harm or other persons, if this danger in these circumstances could not be eliminated by other means, should be reimbursed by the person who caused harm (Art. 1066, 1067 of the Civil Code of the Russian Federation)10 .

The presence of guilt in the behavior of the victim entails the full or partial exemption from the responsibility of the injury.

The harm resulting from the intent of the victim is not refundable.

2.2 The problem of compensation for harm caused by a citizen

Mikhailova I.A.M. It is not necessary that Russian legislation, regulating relations arising from the cause of harm, actively and dynamically developed all over the years, but in the process of its application there are often complex issues, which are differently permitted not only in the modern doctrine, but also in judicial practice. This is, first of all, with uncertainty, collision of certain provisions of the law, as well as the non-marketing of some issues, which negatively affects the effective judicial protection of the rights and freedoms of citizens. The complexity of the interpretation and application of legislation regulating liabilities is also explained by the fact that when considering civil cases of the named category of category, the court should figure out and give a legal assessment of a number of factors, including: the circumstances of harm; the presence or absence of guilt in the actions of the injury; Features of the civil law enforcement of the injury, as well as those third parties on which the obligation to reimburse him is assigned; The nature of harm caused, its consequences and their severity, etc.11 .

This kind of loss of victims or loved ones to him is subject to compensation for harm injuries within the framework of delicate obligations. On the same grounds, the victim, in addition, is reimbursed by moral harm. Therefore, the law examines the causing harm or health of the citizen as one of the types of delicate obligations (independent, special delic).

Reimbursement of harm caused to life or the health of a citizen is regulated by the general (Article 1064-1083), as well as special ILC standards (Article 1084-1094). However, as noted by Zenin I.A., the harm of the life or health of a citizen may be caused in the performance of contractual obligations, as well as in the fulfillment of military service responsibilities. Service in the police and other relevant duties. Such harm is reimbursed according to the rules of H.59 GK (Article 1064-1101), if the law or contract is not provided for higher responsibility12 .

Harm caused by the life and health of a citizen is subject to refund within the framework of non-commissioned obligations and in cases where it is the result of the improper execution of the contract13 . For example, the harm caused to the life and health of the passenger or tourist is reimbursed by the rules on the delicate obligations, and not about the obligations arising from the Passenger Transportation or Tourist-Tour Service. The same applies to the cases of causing the specified harm to a citizen in the fulfillment of them the responsibilities of military service, service in militia and other such duties, including the employment contract (art. 1084 of the Civil Code). In particular, according to these rules, the damage arising from the employee in connection with the professional disease caused by heavy, unsafe conditions of its work (for example, pneumoconiosis and silicos for miners, the defeat of the auditory nerve in professional radistians, etc.).

Gatin A.M. Notes that in the event of the death of the victim, the right to compensation for harm has a certain circle of persons for whom the victim was a breadwinner, i.e. Persons for whom earnings (income) The breadwinner was the main source of livelihood.

These faces include:

1) disabled persons held on the dependence of the deceased or the right of his death the right to receive detention from it;

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

3) one of the parents, spouse or another family member, regardless of its working capacity, which does not work and take care of the deceased children, grandchildren, brothers and sisters who have not reached fourteen years either, or though reached the specified age, but on the conclusion medical authorities in need of health care in unauthorized care;

4) persons who were dependent on the deceased and incomparable for five years after his death14 .

One of the parents, spouse or another family member, not working and engaged in child care, grandchildren, brothers and sisters of the deceased and becoming disabled during the care period, retains the right to compensation for harm after the end of the care of these persons.

Harm is refundable:

1) minors - until the age of eighteen years old;

2) students over eighteen years old - until the end of study in educational institutions for full-time learning, but not more than twenty-three years;

3) women older than fifty-five years old and men older than sixty years - life;

4) disabled - for disability;

5) one of the parents, a spouse or another member of the family, occupied by the departure of his children, grandchildren, brothers and sisters, is before reaching the age of fourteen years or changes to health (art. 1088 of the Civil Code of the Russian Federation).

Persons who have the right to compensation for harm in connection with the death of the breadwinner, harm is indignant in the amount of the share of earnings (income) of the deceased, which they received or had the right to receive on their content during his life. The amount to be reimbursed by the lost earning earning (income) is determined as a percentage of its average monthly earnings (income) before injury or other damage to health either before the disability loss, corresponding to the degree of loss of victims of professional working capacity, and in the absence of professional working capacity - the degree of loss of overall working capacity. The composition of the lost earnings (income) of the victim includes all types of payment of its labor on labor and civil law agreements both at the place of main work and part-time income tax. A one-time payment is not taken into account, in particular compensation for unused vacation and output allowance for dismissal. During the period of temporary disability or maternity leave, the benefit paid is taken into account. Income from entrepreneurial activity, as well as the author's fee, are included in the composition of the lost earnings, while business income is included on the basis of tax inspectorate. All types of earnings (income) are recorded in amounts accrued before tax retention. The average monthly earnings (income) of the victim is calculated by dividing the total amount of its earnings (income) for twelve months of work preceding health damage for twelve. In the case of the victim to cause harm worked for less than twelve months, the average monthly earnings (income) is calculated by dividing the total amount of earnings (income) for the actually worked number of months preceding health damage to the number of these months.

If in earnings (income) of the victim occurred before causing him injury or other health damage to sustainable changes, improving his property position (increased by the position of his position, it was transferred to a higher paid job, went to work after the end of the educational institution for full-time learning and In other cases, when the stability of the change or the possibility of changing the wage of the victim is proved), in determining its average monthly earnings (income), only earnings (income), which he received or should be obtained after the corresponding change is taken into account.

When determining the compensation for harm to these persons, the revenues of the deceased along with earnings (income) include a pension, lifelong content and other similar payments to them during life. In determining the amount of compensation for harm to the pension, appointed by persons in connection with the death of the breadwinner, as well as other types of pensions appointed both before and after the death of the breadwinner, as well as earnings (income) and the scholarships received by these persons, at the expense of damage to them counted.

Established by each of the compensation for damage due to the death of the breadwinner, the amount of compensation is not subject to further recalculation, except for the cases:

Birth of a child after the death of the breadwinner;

Appointment or termination of the payment of compensation to persons engaged in the care of children, grandchildren, brothers and sisters of the deceased breadwinner.

The law or the contract may be increased the amount of reimbursement (art. 1089 of the Civil Code of the Russian Federation).

In the event of the death of a citizen responsible for causing harm, the obligation to reimburse him proceeds to its heirs within the value of hereditary property.

Isaicheva E.A. notes thatarticle 3. Federal Law of July 24, 1998 N 125-FZ "On compulsory social insurance against accidents at the production and occupational diseases" determines the accident at work as an event, as a result of which the insured received injury or other damage to health in the work of them Agreement (contract) and in other cases established by the federal laws as in the territory of the Insured and beyond either during the place of work or return from the place of work on transport provided by the insureder, and which entailed the need to transfer the insured to another job , temporary or resistant loss of professional working capacity or his death15 .

In accordance with S.art. 184 TK RF 16 In case of damage to health or in the event of the death of an employee due to an accident at the production of either a professional disease (his family), its lost earnings (income) are reimbursed, as well as related health damage to health, social and professional rehabilitation or relevant expenses in connection with The death of the employee.

Article 23. Reimbursement of harm caused by life or health of the member of the Federation Council, Deputy of the State DumaFederal Law of 08.05.1994 N 3-FZ "On the status of a member of the Federation Council and the Status of the State Duma Deputy of the Federal Assembly of the Russian Federation" Person: In the event of causing a member of the Federation Council, deputy of the State Duma of Vychision or other damage to health, resulting in the loss of working capacity, they are paid monthly compensation in the amount of the difference between the monthly monetary remuneration of the State Duma deputy on the day of payment of compensation and the appointed pension without credit insurance amounts on state Insurance.

In the event of the death of a member of the Federation Council, the State Duma deputy, the material support of the family members of the deceased member of the Federation Council, the State Duma deputy is carried out in the manner prescribed by the Federallaw On the material provision of members of the family of the deceased member of the Federation Council, deputy of the State Duma17 .

Mikhailova I.A.The what is the fact that the application that the use of civil legislation to obligations due to harm to life or health, firstly, is much more difficult compared to other civil obligations and, secondly, directly affects the most important subjective The rights and legitimate interests of thousands of Russian citizens and society as a whole, it necessarates the unprecedented importance that the adoption of January 26, 2010 hadDecisions Plenum of the Supreme Court of the Russian Federation N 1 "On the application by the courts of civil law regulating the obligations due to harm to life or health"18 .

The value of the provisions contained in thisResolution , due to the fact that they were the result of long-term and large-scale work on studying, analysis and generalization of the practice of consideration by Russian cases of this category, on the basis of which the most important issues and problems arising from courts in the process of application and interpretation of legal norms were identified and allowed. regulating relevant obligations. Clarifications formulated by the Supreme Court of the Russian Federation will significantly increase the level of law enforcement practices for this category of civil cases, its unification and uniformity will also be promoted and thereby create conditions that greatly strengthen the guarantees of proper and timely protection of the violated rights and legitimate interests of Russian citizens.

Mikhailova I.A. Allocates among the many provisions that are an important contribution to the development and improvement of the Institute for Harm Compensation, also separate gaps and some inaccuracies. In its article, the author cites many examples of judicial practice. We give some of them.

So, for example, the applicant appealed to the court to compensate for the moral damage caused to her death at the production of its sole daughter, in the amount of 100 thousand rubles. By the decision of the district court, the demands of the plaintiff were satisfied in part: in her favor, from the defendant, the amount of compensation in the amount of 15 thousand rubles was recovered.

Regarding this decision, the Supreme Court of the Russian Federation was emphasized that with the conclusion of the court to establish compensation in this amount, it is impossible to agree, especially since the decision it was fair: "... The court believes that the plaintiff has experienced enormous moral suffering due to the loss of one Daughters; the sufferness is the hroptage of a loved one; for the mother, the death of her daughter at any age is a huge grief ", so the amount of 15 thousand rubles is clearly disproportioned by the moral suffering experienced by the plaintiff.

The undisputed nature of the suffering arising in connection with the death of a close relative was also emphasized by one of the criminal cases initiated in the fact of bringing the cadet suicide of J. This case was discontinued for the lack of a crime event, the foundation for which was the conclusion of the investigator that The death of the cadet of the cadet found in the toilet of the barracks of the cadet was made due to his suicide committed in a state of neurotic depression.

By the decision of the judge of the garrison court of January 17, 2008, the complaint of the mother of the deceased J., in which she requested the abolition of the decision of the investigator, was left without satisfaction.

However, as Military Collegium of the Supreme Court of the Russian Federation explained, according toart. 42. The Criminal Procedure of Criminal Code of Crimes, the consequence of which was the death of a person, the rights of the victim, provided for by this norm, are transferred to one of its close relatives. In these circumstances, the mother of J. reasonably set the question of recognizing her victim in the case, however, during the entire production of the preliminary investigation, it was not recognized as a victim. The non-recognition of the mother of the deceased victim is the basis for the abolition of the judge's decree and for the direction of the material of the court proceedings in the same court for consideration of the applicant's complaint19 .

Malsagov A.T. In his article, it affected the topic in recent years in recent years - compensation for harm caused to life and health of persons in connection with their participation in the fight against terrorism.

As noted by Malsagov A.T. The determination of the volume, nature and amount of damage to the victims of terrorist acts remains currently one of the most unresolved problems. Thus, payments to the families of the victims in the theater center on Dubrovka amounted to 100 thousand rubles, and the relatives of the victims in the central market of Vladikavkaz received only 10 thousand rubles. On the family of the deceased. As practice has shown, with large terrorist attacks, as a rule, the Government of the Russian Federation and the authorities of the constituent entities of the Russian Federation voluntarily allocate certain funds from reserve funds to pay compensation to the relatives of the victims and affected. For example, compensation in the following sizes in the following sizes were paid to the following sizes during the terrorist attack at the Tushinsky field at the disposal of the Moscow Government: 100 thousand rubles. - the families of the dead and died in hospitals; 50 thousand rubles. - victims aimed at hospitalization, and 3 thousand rubles. - I received assistance outpatient. The Government of Moscow pledged monthly pensions to children who lost their parents in the amount of 1.5 thousand rubles. Until they reach 18 years old, and students of day schools are up to 23 years old. For the loss of property paid compensation to 10 thousand rubles. In addition, the urban authorities assumed the costs of the burial of those killed from the terrorist attack. The state with compensation is based only on those funds that were "free" at the time of payments20 .

The most fully, today, the legislation resolves the issue of compensation for harm to persons participating in the fight against terrorism inart. 21. Federal Law of 06.03.2006 N 35-FZ "On Countering Terrorism".

Compensation of harm caused to life, health and property of persons in connection with their participation in the fight against terrorism is carried out in accordance with the legislation of the Russian Federation in the manner prescribed by the Government of the Russian Federation.

But compensation payments, as A.T. Malsagov notes, as well as one-time benefits paid in accordance withLaw About countering terrorism, in its essence, are precisely one-time, fixed, paid on the fact of the occurrence of the occurrence of the life and health of persons who participated in the fight against terrorism.

The volume of compensation of property harm caused by damage to health is defined inp. 1 Art. 1085. The Civil Code of the Russian Federation, according to which, when causing an injury to a citizen or other damage to his health, is subject to lost earnings (income), which he had either could definitely have, as well as additionally incurred costs caused by health damage, including treatment costs, additional nutrition , acquisition of drugs, prosthetics, extraneous care, sanatorium-resort treatment, acquiring special vehicles, preparation for another profession, if it is established that the victim needs these types of assistance and care and has no right to their free receipt.

In determining the lost earnings (income), the disability pension appointed by the victim in connection with the injury or other health damage, as well as other pensions, benefits and other similar payments, to the number of which, in our opinion, should include payments made in accordance withLaw About countering terrorism and other special legal acts, appointed both before and after harm to health, are not taken into account and do not entail a decrease in the amount of damage compensation (not counted at the expense of damage compensation).

So far, the question of compensation for harm caused to life and health of persons affected by the implementation of measures to combat terrorism is not resolved properly in legislation.

Thus, A.T. Malsagov notes, a complex, systemic approach is needed, ranging from determining the source of funding to the legislative settlement of the mechanism of compensation for damage caused to citizens.

Determination of the volume, nature and amount of compensation for harm caused to life and health of persons in connection with their participation in the fight against terrorism, remains one of the most discussion issues at present. Questions arising in connection with the compensation of harm caused by the implementation of measures to combat terrorism and suggestions for their resolution are quite a lot, and this topic needs both in future legal regulation and in theoretical development.

Conclusion

Having studied the topic "Problems of compensation for harm caused to life, you can draw the following conclusions.

Among the subjective civil rights provided for by the current legislation, a special place is occupied by a citizen for compensation for harm caused to life or health, which is derived from the right to life and the right to protect health enshrined in the Constitution of Russia (part 1 Art. 20, part 1 Art. 41. ), and refers to the number of basic inalienable rights and freedoms.

By virtue of the obligations due to harm, the person who caused the personality or property of another person (physical or legal), is obliged to compensate the damage caused in full, and the victim's face has the right to demand that the harm suffered to them is compensated.

The harm caused to life or the health of a citizen is expressed in the death of man or in causing him injury or injury. Such harm in all cases cannot be reimbursed in kind, nor compensated for money. However, at the same time, the victim usually occupies property losses, because due to injuries and injury, it is temporarily or constantly deprived of the possibility of obtaining former earnings or other income, forced additional costs for treatment, etc. In the event of the death of a citizen, such losses can incur close to him who deprived of this source of income or content.

Thus, despite the fact that the general approach excludes the application of the rules on the case when the parties are in contractual relations, but the characteristics of the harm and health of a citizen make it an exception from it. The obligation to compensate such harm also arises when he is caused by a citizen in the performance of their duties arising from the Treaty, or in the performance of other official duties. In this case, a special composition arises, which includes all the conditions provided for in the general provisions of the Civil Code of the Russian Federation on delictions, as well as the fact of harm in the performance of labor duties.

Russian legislation regulating relations arising from harm caused actively and dynamically developing all over the years, but in the process of its application, complex issues often arise, in different ways are not only permitted in the modern doctrine, but also in judicial practice.

List of used literature

1. Constitution of the Russian Federation (adopted on a popular vote on December 12, 1993) ConsultantPlus;

2. Civil Code of the Russian Federation (part two) dated January 26, 1996 N 14-FZ (adopted by the State Duma of the FS RF 22.12.1995) (Ed. From 07.02.2011))Consultant Plus;

Labor Code of the Russian Federation of 30.12.2001 N 197-FZ (adopted by the State Duma of the FS RF December 21, 2001)) (Ed.29.12.2010) ConsultantPlus;

3. Consultant Plus;

4.Federal law of July 24, 1998 N 125-FZ (ed. 09.12.2010) "On compulsory social insurance against accidents at work and occupational diseases" ConsultantPlus;

5.Federal Law of 06.03.2006 N 35-FZ "On Countering Terrorism" ConsultantPlus;

6. Resolution Plenum of the Supreme Court of the Russian Federation N 1 "On the application by the courts of civil legislation regulating the obligations due to harm to life or health" of January 26, 2010.// Bulletin of the Supreme Court of the Russian Federation. 2010. N 3. P. 2 - 12;

7.Gatin A.M. Civil law: Tutorial. - M.: Dashkov and K, 2009.- 127С.;

8.Rezhdansky law: textbook / under total. ed. ChL-Corr. RAS S. S. Alekseeva. - 2nd ed., Pererab. and add. - M.: Prospect; Yekaterinburg; Institute of Private Law, 2009. - 528 p.;

9.Ruzhdanskoe law: in 4 t. Volume 4: Commitenty: studies. For students of universities / d. ed. E.A. Sukhanov. - 3rd ed., Pererab. and add. - M.: Volters Clever, 2006. - 816 p. - (Series "Classic University Tutorial" / Mosk. State. University. M.V. Lomonosov);

10.Reshov V.A. and others. Amented comment to the Civil Code of the Russian Federation (prepared for the ConsultantPlus system, 2009) 651c.;

11.Senin I.A. Strazhdanskoe Law: Textbook for universities. - 2nd ed., Pererab. and additional - m.: Publishing House Yurait; Eid Yuraight, 2010.- 616С. - (basics of sciences);

12.Saycheva E.A. Encyclopedia of labor relations. - 2nd ed., Pererab. and additional- m.: "Alpha Press, 2007.- 410С;

13. Comment to the Civil Code of the Russian Federation (educational and practical). Parts first, second, third, fourth (article) -2-e ed., Pererab. and add. / Ed. S.A. Stepanova. - M.: Prospekt, Institute of Private Law, 2009.- 422C.;

14. Malsagov A.T. The volume, nature and amount of compensation for harm caused to life and health of persons in connection with their participation in the fight against terrorism // Modern law. - 2009.- N 10;

15. Mikhailova I.A. Some issues of compensation for harm caused to life and health, in the new decree of the Plenum of the Supreme Court of the Russian Federation // Civil law. - 2010.- N 3;

16. Opportunity due to harm: a postroom comment by chapter 59 of the Civil Code of the Russian Federation / Ed. P.V. Krasheninnikova.- M.: Statute, 2009.- 67С.

1 GK of the Russian Federation Article 1064

2 Constitution of the Russian Federation

3 Civil law / Ed. Alekseeva S.S.- M., 2009.- p.365

4 GK of the Russian Federation Article 1065

5 Zenin I.A. Strazhdanskoe Law. - M., 2010.- P. 607

6 Civil law / Ed. Alekseeva S.S.- M., 2009.- p.371

7 Civil law in 4 t. T.4 / T. ed. E.A. Sukhanov.- M., 2006.- p.320

8 GK of the Russian Federation Article 1064

9 Gatin A.M. Civil law. - M., 2009.-C.250

10 CC of the Russian Federation Article 1066, 1067

12 Zenin I.A. Strazhdanskoe Law. - M., 2010.- S. 610

13 Civil law in 4 t. T.4 / T. ed. E.A. Sukhanov.- M., 2006.- p.347

14 Gatin A.M. Strazhdanskoe Law. - M., 2009.- p.263

15 Isaicheva E.A. Encyclopedia of labor relations. - M., 2007.-C.289

16 TC RF

17 Federal Law of 08.05.1994 N 3-FZ (ed. Dated December 28, 2010) "On the status of a member of the Federation Council and the Status of the State Duma of the Federal Assembly of the Russian Federation"

18 Mikhailova I.A. Some issues of compensation for harm caused to life and health, in the new decree of the Plenum of the Supreme Court of the Russian Federation // Civil law. - 2010.- N 3

19 Judicial practice of the Military Collegium of the Supreme Court of the Russian Federation. Definition N 4-17 / 08 // Bulletin of the Supreme Court of the Russian Federation. 2008. N 11. P. 27.

20 Malsagov A.T. The volume, nature and amount of compensation for harm caused to life and health of persons in connection with their participation in the fight against terrorism // Modern law. - 2009.- N 10;

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Delicious liability issues

L. V. Kuznetsova

Kuznetsova Lyubov Viktorovna Candidate of Law, Deputy General Director for Legal Affairs of SlavPax CJSC. Born on December 27, 1976 in Samara. She graduated from the Law Faculty of Samara State University. In 2003, the dissertation for the degree of candidate of law was defended in Kazan State University. Specialist in the field of corporate and contractual law. The main circle of scientific interests: Issues of Implementation and Protection of Civil Rights, Corporate, Commitenty Law. Author of more than 20 scientific publications in leading legal publications, among which the monograph "Preferential Rights in Civil Law in Russia" (2007), articles "Protection of advantages in civilistics: problems of theory and enforcement" (Vestnik of the Russian Federation. 2005), "Appeal for recovery on Securities »(Law 2006)," Exception of a Member from Limited Liability Company "(Vestnik of the Russian Federation. 2006)," Controversial issues of termination of the obligation to the coincidence of the debtor and the lender in one person "(Vestnik of the Russian Federation. 2008).

Responsibility for Delikt, i.e., non-bodied responsibility for the offense, expressed in harm caused by one of the types of civil liability, along with, for example, with a contractual or intensification. At the same time, the delicate responsibility has the most pronounced universal nature and serves as one of the most effective components of the mechanism for the protection of absolute rights, primarily ownership. Despite the importance of such responsibility in the system of protection of civil rights, as well as highly detailed legislative regulation of its relations, so far, the institution of deliberate responsibility remains associated with a number of controversial and ambiguous problems and issues, the permission of which is extremely significant for judicial practice, and for A proper understanding of both delicate and civil liability in general.

Delicious Responsibility and Delicious Obligations: Controversial Relationships

One of the complex questions of the topic under consideration to the present remains the problem of the ratio of delicate responsibility with obligations from harm, or, otherwise, with delicate obligations. In the literature and judicial practice, the concept of "delicate commitment" and "delicate responsibility" are often mixed, used as identical or interchangeable<1>. In addition, the delicate responsibility is assessed by the courts as an element of the delicate commitment<2> Or, on the contrary, the commitment itself is considered as content of the responsibility for causing harm<3>. ——————————— <1> See, for example: Resolutions of the FAS of the North-West District of July 22, 2003 in case No. F04 / 3371-629 / A70-2003; FAS of the East Siberian District of October 25, 2005 in case N A19-6173 / 04-7-F02-5227 / 05-C2, etc.<2> See, for example: Resolutions of the FAS of the Volga District of October 4, 2007 in case N A12-6718 / 06-C62; FAS North-West District dated June 24, 2008 in case No. A56-21029 / 2007, etc.<3> Resolution of the FAS of the West Siberian District of October 6, 2003 in case No. F04 / 5142-864 / A75-2003.

The basis of such uncertainty is the law itself. As part of ch. 59 of the Civil Code of the Russian Federation "Obligations due to harm" is only about deliberate responsibility. It is believed that the noted use of the concepts under consideration does not contain contradictions because they are due to their close relationship<1>. As noted, the latter is associated with the fact that it is a delicate responsibility constitutes the content of the obligation from the harm, since "in this case, the responsibility does not complement, does not" accompany "any other obligation (as with contractual liability), it constitutes the responsibility of the offender in Commitment arising due to harm "<2>. ——————————— <1> Civil law: Tutorial: in 2 tons. T. 2. semi-like II / Ed. E. A. Sukhanova. M.: Volters Clever, 2005. P. 561.<2> Ibid.

Without challenging the fact of an unconditional relationship that exists between the delicate responsibility and obligations from harming, it should, however, pay attention to the need otherwise to express accents on the characterization of the ratio of these legal institutions. It is known that the delicate obligations (obligations from harm) are a kind of civil obligations, by virtue of which one party (damage causer, delinven) is obliged to compensate the property harm (in nature or damage to damages) caused by the other party (in nature or damages), and in the laws provided for by law compensate for non-property (moral) harm, suspend or discontinue production activities, and the victim has the right to demand a damage to the execution of the obligation<1>. ——————————— <1> See, for example: Civil Law: Textbook. Part Two / Rev. ed. V.P. Mozolin. M.: Lawyer, 2004. P. 312.

In such a commitment, the victim acts as a lender, and the harm causer (delinven) is as a debtor. The basis of the occurrence of a delicate obligation, namely the civil obligation of the injury to the reimbursement of the last and counter-subjective law of the victim to require the appropriate compensation from the division due to the provisions of the sub. 6 p. 1 Art. 8 Civil Code of the Russian Federation is the legal fact of harm or, otherwise, Delic. In turn, the liability of civil law, including delicate as its private manifestation, is an application to the offender determined by the law for coercive measures - sanctions or measures of responsibility, which are characterized exclusively by property content and are expressed in imposing additional duties on the offender Vision of the property sphere of the last negative meaning. Thus, as the civil liability as a whole, the delicate responsibility has its own actual content of the property duty, namely the duty of the division to compensate the damage caused by the injured. This duty acts at the same time an integral element of the relationship of harm reimbursement and arises, as well as the legal relationship in general, from the legal fact of its causation (from the Delica). In other words, it is more correct to say that property responsibility acts as the content of the obligation from damage to harm, but, on the contrary, the need to characterize the obligation of a delinquent for compensation for harm, which is an element of the content of the relevant delicate obligation, as a deliberate liability assigned to the offender and in the end Evaluate the last thing through the specified duty, and not vice versa. Analyzed duty to compensate caused damage to no way can always be considered as responsible. So, it cannot be estimated in the title quality of the obligation to compensate the damage caused by legitimate actions (see paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation), as well as compensation for harm caused in the state of the necessary defense or extreme necessity. In these cases, the legislator is either at all refuses to refuse damage caused, or, establishing an appropriate duty, aims to compensate for the victims of the losses incurred by him<1>. ——————————— <1> Civil law: textbook. T. 2 / Ed. O. N. Sadikova. M.: Infra-M, 2007. P. 451.

Thus, the concept of "delicate responsibility" in its content is the characteristic (from the point of view of the Civil Law Protection Institute) Duties of the Delivent to compensate the damage caused by him existing within the obligation to compensate for harm (delicate obligation). This characteristic of the named responsibilities is characteristic throughout the development of the obligation, despite the fact that the obligatory legal relationship itself, which causes damage due to harm may be subject to change, for example, with the assignment of the right (requirements) or debt translation. In other words, the responsibility of the delinquent must be characterized as a delicate responsibility, even if the relevant duty exists before whom. The conclusion is due to the content of the very concept of responsibility, determined as the imposition on the offender of additional duties, having a negative property importance for the injury. A delicate commitment, as already noted above, always develops as a consequence of the onset of the legal fact of harm. And from the very beginning of the existence of the obligation to the obligation of delinquent on compensation for harm, which makes up the content of such an obligation, arises and is characterized in the future as the property responsibility of the injury for the offense committed by it. This duty can be executed by delinquency voluntarily, otherwise the victim is entitled to apply to the compensation for damage to court. The possibility of such state coercion to fulfill the duty is the quality peculiar to almost any obligatory legal relationship, and is not related to the characteristics of the responsibility under consideration as responsibilities. A feature is that the responsibility itself in this case acts as a creature and meaning of the obligation, and therefore the judicial protection of the rights of the victim is not carried out in the form of attracting delinquent to justice, but as coercion to fulfill the duty in nature. However, the question of responsibility for the failure to fulfill the delicate obligation can also be delivered and resolved positively. However, in contrast to another type of non-invalid obligations, such as obligations due to unjust enrichment (ch. 60 of the Civil Code of the Russian Federation), in the delicate obligations, the responsibility for non-fulfillment of the duties for compensation for harm (i.e., the unrealization of the mechanism of property deliberate responsibility) is not directly regulated. So, according to, for example, paragraph 1 and 2 of Art. 1107 of the Civil Code of the Russian Federation, a person who unreasonably received or saved the property, is obliged not only to return the last victim, but also to reimburse him all the incomes that it learned, or to pay the victim interest for the use of other people's funds (Art. 395 of the Civil Code of the Russian Federation) on the amount of unjust money enrichment Since the acquirer learned or had to learn about his unjust enrichment. At the same time, the lack of direct legislative consolidation of the rules on the responsibility of the injury for non-fulfillment of their obligation to reimburse him does not cancel the possibility of applying such responsibility to it on the basis of the general provisions of civil law on damages (Article 15, 393 of the Civil Code of the Russian Federation) or pay interest for the use of other people's money (Art. 395 of the Civil Code of the Russian Federation). Thus, the damage caused can be refunded in nature (by providing the thing of the same kind and quality, correcting damaged things, etc.) or by reimbursement of damages according to the rules of Art. 15 Civil Code of the Russian Federation. The problem is that, based on the meaning of Art. 1082 of the Civil Code of the Russian Federation, the question of which caused damage to what should be reimbursed is solved solely at the discretion of the court in accordance with the specific circumstances of the case. The named feature, of course, does not mean that the commitment to compensation for harm arises only by the court decision and due to its adoption (it is known that the court decision is recognized as an independent legal fact that can generate civil rights and obligations) (see sub. 3 p. 1 Art. 8 of the Civil Code of the Russian Federation). The basis of the analyzed obligatory legal relationship is Delikt. However, the specific form of compensation for harm, and therefore the expressions of the obligation serving the content of deliberate responsibility is determined only by agreement (interpretation or written) participants of the obligation from harm causing<1> or on the basis of a court decision. This, on the one hand, creates the theoretical problem of the assessment of such a form of "clarification" of the duties of the delinven, on the other - the reason for the insufficient effective application of responsibility for violation of the responsibility of the damage to its reimbursement, which, of course, does not contribute to the implementation of the mechanism of deliberate responsibility. -----------<1> Despite the wording of Art. 1082 of the Civil Code of the Russian Federation, directly establishing that the question of the method of compensation for harm decides the court, it seems unacceptable to limit the possibility of participants in civil legal relations to solve this issue on the basis of a free agreement of the injury of harm and victim. This conclusion is all the more faithful that the law does not contain a direct or indirect ban on such permission of the mentioned question.

As for the first of the marked problems, it should be recognized that the obligation to compensate for harm components of the delicate responsibility itself arises directly from the Delica as a fact of causing harm to another person (victim), but it finds a change and (or) addition on the basis of others legal facts (transactions or court decisions). Such a change does not affect the essence and maintenance of the obligation to compensate for harm, which means that the delicate responsibility, the more implies the emergence of a new obligation, but directly affects the implementation form of the responsibility (a way to fulfill the duty). In relation to the problem of responsibility for the failure to fulfill a delicate commitment, it should be noted that the agreement of the parties of such an obligation or the court decision on the method of compensation for damage to harm is determined not only whether the harm will be reimbursed in kind or by recovery of losses, but also, importantly, the moment of time, with Which participants of the relevant legal relations are entitled to count the onset of the right of victim to attract the division to liability for non-fulfillment of the obligation to compensate for harm and, of course, the emergence of the corresponding duty of the injury. Thus, OJSC Penzadizelmash (Plaintiff) appealed to the Arbitration Court with a claim for recovery from Russian Railways (respondent) interest for using other people's money on the basis of Art. 395 Civil Code of the Russian Federation. As follows from the materials of the case, from the defendant in favor of the plaintiff, the amount of damage caused by the shortage of the goods transported by the defendant was recovered. A court decision on compensation for damage to harm entered into force, but was not fulfilled by the defendant properly. During the period of delay in the execution of the specified decision of the court, the plaintiff declared the requirement for the recovery of interest for the use of other people's money. The court of cassation, canceling the judicial acts held in the case and satisfy the requirements of the plaintiff, indicated the fallacy of the conclusions of the courts of subordinate courts. The courts of the first and appeal instances came to the conclusion that the decision to recover the tasted of the plaintiff did not have the basis of the emergence of the obligation to pay the defendant the claimant of the cost of shortage of cargo, since they were only established by the circumstance confirming that the obligation of the defendant to pay the accumulation cost really takes place While the obligation itself is paid by the defendant the cost of the shortage arose, according to sub. 6 p. 1 Art. 8 Civil Code, due to the defendant harm to the plaintiff. In connection with the court of cassation instance, satisfying the claimant's requirements, referred to the provisions of Art. 395 of the Civil Code of the Russian Federation, as well as on paragraph 23 of the joint decree of the Plenums of the Armed Forces of the Russian Federation and the Russian Federation N 13/14, according to which "when resolving courts of disputes related to the application of responsibility for causing harm, it is necessary to take into account that on the basis of Article 1082 of the Code when satisfying References for damages The court has the right to oblige a person responsible for causing harm, compensate for harm in nature (provide a thing of the same kind and quality, to correct the damaged thing, etc.) or compensate for damages (paragraph 2 of Article 15 of the Code). In the event that the Court assigns the duty to compensate for the money, on the side of the injury, a monetary obligation to pay the amounts defined by the court arises. From the moment when the court decision entered into force, unless otherwise specified in the law, in the amount defined in the decision in the delay of its payment by the debtor, the lender is entitled to accrue interest on the basis of article 395 of the Code. Percentages are accrued and in the case when the obligation to pay a monetary reimbursement is established by the Agreement of the Parties "<1>. ——————————— <1> Resolution of the FAS of the Volga District of February 26, 2008 in case No. A55-5065 / 2007.

It seems that the conclusions of the courts of the first and appeal instance in the present case are generally true, following the exception that the court decision on compensation caused by the victim of harm in terms of the possibility of using certain measures established by the law for non-fulfillment of the obligation to reimburse it really has a guideline role , with the content indicated above. As for the conclusions made in judicial acts of the courts of higher courts, in our opinion, it cannot be argued that in the case when the Court places the duty to compensate for the money, a new monetary obligation to pay the amounts determined by the court arises. In this situation, the obligation to the delinquent for compensation for harm, of course, is maintained by purchasing the specific form of its expression and execution. There is no new commitment in this case, since it would require the question of the termination of the previously formed delicate commitment or its existence in parallel with the new commitment (monetary or obligation to provide certain property, the implementation of certain works designed to eliminate the damage caused), which Of course, it does not happen. It has already been noted above that the victim is due to harm as parties as parties are the victim - a person who causes harm (lender), and the debtor is a direct cause of harm or a person responsible for the actions of the direct causative of harm. For the debtor, the law imposed on him the obligation to reimburse the damage caused by the victim, being a composite element of the relevant commitment, is simultaneously a delicency responsibility, that is, the property liability imposed on the injury to the offense admitted to them. Such a characteristic of the named responsibility does not change, essentially, neither its content, nor the features of its execution. However, given the fact that this obligation acts simultaneously and the content of property responsibility, it is necessary to answer the question of whether the rules for the transfer of debt (Article 391 of the Civil Code of the Russian Federation) or the possibility of execution are applied. A third face (Art. 313 of the Civil Code of the Russian Federation). The transfer of Delinkvent Debt to another (third) person should be recognized as possible and permissible. As in all other cases, the transfer of debt, in the situation under consideration, such a translation is carried out only with the consent of the creditor (p. 1 tbsp. 391 of the Civil Code of the Russian Federation), which ensures the observance of the interests of the victim and the accounting of the influence of the personality of the debtor. As for the possibility of executing such a delicate commitment to a third party according to the rules of Art. 313 of the Civil Code of the Russian Federation, it should be borne in mind that in the delicate relations the personality of the debtor may be essential for the victim, which is reflected in the execution of this obligation. For example, the law allows for the possibility of taking into account the property of the damage of harm in determining the amount of compensation (Art. 1083 of the Civil Code of the Russian Federation), if the harm caused by a citizen by negligence. In the specified, as well as in other cases, when the identity of the division can be essential from the point of view of the characteristics of the defense liability and its implementation, the fulfillment of the obligation that makes up the content of such responsibility, the third person should be considered invalid. The base of this output can be the basis of 1 Article. 313 of the Civil Code of the Russian Federation, according to which "fulfillment of the obligation can be assigned to a debtor on a third party, if from the law, other legal acts, the conditions of the obligation or its being does not follow the responsibility of the debtor to fulfill the obligation to personally." Thus, the possibility of execution of the obligation to compensate for harm in the framework of the delicate commitment to a third party must be assessed in each particular case and taking into account the characteristics of harm and the creature of the mentioned obligation. Finally, another important question, having a robust to the problem of the ratio of delicate responsibility and the delicate obligation, is the question of the methods of compensation for damage to harm (on the specific form of realization of delicate responsibility), the partly affected above. In the current legislation, unfortunately, there are no unequivocal answers to questions about whether the delinquent must compensate the damage caused in nature or to make it by compensation for damages (in cash), and is also entitled to identify the concrete way to Reimbursement or it can be done only with the consent of the victim. In our opinion, the obligation from the causation of harm in this respect meets the sign of alternativeness and therefore should obey the general regulation of the execution of an alternative obligation. So, according to Art. The 320 Civil Code of the Russian Federation "The debtor who is obliged to transfer one or another property to the lender or to make one of two or more actions, belongs to the right of choice, if otherwise does not flow out of the law, other legal acts or conditions. Application to the delicate liabilities of this Regulation means that the damage causer voluntarily crushing caused damage is entitled to make it any of the methods that are allowed by the law, and the victim in turn is obliged to take such execution from delinquent as proper. In other words, if the duty of the division is not consistent with a specific way directly in agreement of the parties obligations and is not established by the court decision, the victim does not have the right to demand compensation in nature, if harm is reimbursed by delinquency in cash and vice versa, as well as refer to improper compensation for harm caused .

Controversial issues of the foundation and conditions of delicate responsibility

The basis of deliberate responsibility. Speaking about the basis of delicate responsibility, it is necessary to take into account that the very concept of "base" is characteristic of the theory of civil legal relationship and is defined as a legal fact that generates changing or terminating civil rights and obligations. Therefore, it seems that the basis of deliberate responsibility, given the above on the ratio of the latter and the delicate obligation, is a legal fact that generates such an obligation and, as its key element, the duty of delinquent on compensation for harm, serving the content of delicate responsibility. Therefore, the basis of a delicate commitment and delicate responsibility is the same - an offense or delic. Delicik is one of the most ambiguous and lowered today in the science of civil law concepts. The legal antiquity of the named legal phenomenon and its apparent simplicity provided, unfortunately, the almost complete absence of theoretical analysis of the concept of "Delic", determining the place and role of the Delica in non-delicate obligations, the allocation of certain types of deliquets, as well as the design of their system in modern civil law. At the same time, it is known that any knowledge that is not based on a thorough analysis of the cornerstone and deprived of a slender system cannot be sufficiently theoretically complete and practically significant. Delikt is one of those legal phenomena that belong to the deepest legal past past of humanity. The view is extremely common that the obligations in general, in all its current manifold, arose exactly from the Delica. As noted on this occasion, the outstanding Russian civilist and researcher of the Roman law I. A. Pokrovsky, "The oldest embryonic embrying relationship lies in the region, which we currently call civilian offenses or delictions; Agreement as an independent source of obligations appears much later ... "<1>. With all the interaction of the specified, "delicate", theory of origin of obligations<2> The significance of the Delica himself for the formation and development of civil law is difficult to deny. -----------<1> Pokrovsky I. A. The main problems of civil law. M.: Statute, 1998. P. 236.<2> See, for example: Civil Law: Actual Problems of Theory and Practice / Total. ed. V. A. Belova. M.: Yurait-Edition, 2007. P. 654 - 655.

Delict - from Latin delictum, which literally means "error", "error", "lawlessness", "sin", "crime" or "misconduct". The authors of one of the most popular textbooks of the Roman law edited by I. B. Novitsky and I. S. Perenterstorsky simultaneously with the concept of "DELICTA" mention and the term "maleficia", which was probably used along with the first and translated as "Chara", in The significance of various people undergoes by people, animals or property of damage or anxiety. Thus, in the Roman law "Delikt is an unlawful action, offense"<1>. ——————————— <1> Roman private law: Textbook / Ed. I. B. Novitsky and I. S. Perenterstorsky. M.: Lawyer, 2004. P. 327.

The noted is supported by other authors, for example, M. H. Khutyz<1>. Some researchers of Roman law define Delic as a "arbitrary violation of the law"<2>. M. Battoshekka so characterizes the concept under consideration: Delikt from the point of view of Roman law is an offense, causing harm to a separate person, his family or property violation of the legal establishment or prohibition, with the result that new rights and legal responsibilities arise regardless of the will of the offender arise<3>. ——————————— <1> Hutyz M. Kh. Roman private law: course of lectures. M.: Wenesna, 1994. P. 137.<2> See, for example: Mackenzie A. Roman law is relatively with the laws of France, England and Scotland / Per. from English M.: Type. L. I. Stepanova, 1864. P. 256.<3> Parothek M. Roman Law: Concepts, Terms, Definitions / Per. With Czech. M.: Jurid. Lit., 1989. P. 92.

Delicates in Roman law were divided into Delicta Publica (Public Delicates) and Delicta Privata (private delicates). The first "Recommended by violating the interests of the state as a whole and attracted a bodily punishment, and sometimes the death penalty - Crimina Capitalia - or property recovery, as a general rule enter the state's income"<1>. Private Delicates, which are of interest to us, concluded an encroachment solely on the interests of individuals, despite the fact that their consequences could be both fines or compensation for harm (property consequences) and corporal punishment.<2>. ——————————— <1> Roman private law: Textbook / Ed. I. B. Novitsky and I. S. Perenterstorsky. P. 327.<2> See: Kosarev A. I. Roman law. M.: Jurid. lit., 1986. P. 32.

There was no general generic concept about the division in Roman law. Interest in terms of law enforcement was represented only by certain types of deliquets, which had a sufficiently large number. This is, in particular: Injuria (in Per. With lat. - violence, insult, damage, damage: included all forms of encroachment on personality, on her life and health, other intangible benefits, as well as personal non-property rights); Furtum (in Per. from the lat. - Robbery, deception, fraud: Delikt against the property rights of the victim); Damnum Injuria Datum (in the lat. - Loss, created by causing damage: related to the causation of property harm, not conjugate, however, with enrichment for delinven); Rapina (in trans. from Lat. - Robbery: It was allocated from Furtum mainly due to the features of the delinven responsibility); Metus and Dolus (in trans. from lat. - threat and deception: Delict, assumed to cause property harm as a result of the named activities of the division); Fraus Creditorum (in Lat. - Fraud against creditors: Special Delict, committed with the aim of protecting the property of the debtor from his creditors). Any slim system of deliquets, and even more general criteria for attributing to the deliquets of a particular act in Roman law, in fact, were absent, although in the development process, public deliquets were finally separated from private delicates and fully moved to the scope of criminal and administrative law. And private deliquets were formed as an independent and a single group of phenomena of an exclusively civilistic nature. The history of the development of ideas about the Delicate in the Middle Ages, and in the future, was determined by the active reception of the Roman law, with the appropriate adaptation of local laws, customs and precedents<1>. But, in essence, nor the progress of legislation nor the evolution of scientific thought almost did not add anything to solve the problem of the concept of delique, its criteria or about the system of deliquets. -----------<1> For more details: Vinogradov P. G. Roman law in medieval Europe. M.: Ed. A. A. Kartseva, 1910. P. 99.

It seems that a similar situation we are forced to observe to this day. Despite the intensive development of civilian science and civil law, the doctrine of the Delica did not go far ahead with the times of Roman law. And the speech is primarily about the absence of a single, universal and in the necessary degree of deep understanding of such a definition as "Delic". Today, Delic is defined in scientific literature and practice in the same way as in the times of Roman law, - as harming the offense or the fact of harm itself.<1>. In the practice of arbitration courts in the overwhelming majority of cases, Delikt is regarded as "offense"<2>, in some cases - as "unlawful causing harm"<3>. Thus, it is emphasized by the legal result of the delique in the form of harm on occurrence and its opposition specifically indicates. However, such a poor definition certainly does not give the idea of \u200b\u200bthe actual content of the evaluated concept or the potential of its practical application. -----------<1> See, For example p: Civil law: Tutorial. Part Two / Rev. ed. V.P. Mozolin. P. 355; Civil law: Tutorial: in 2 tons. T. 2. semi-like II / Ed. E. A. Sukhanova. 2005. P. 437.<2> See, in particular: Resolutions of the FAS of the Ural District of July 3, 2000 in case No. F09-873 / 2000-GK; FAS of the North-West District dated June 21, 2006 in case No. A56-43996 / 2005.<3> See: Resolution of the FAS of the West Siberian District of July 7, 1999 in case No. F04 / 1376-290 / A75-99.

First of all, it should be noted that Delikt is an act, i.e., a delinquente committed (damage caused) action or inaction. Thus, from the point of view of the theory of obligations, Delikt is a legal fact, i.e., a specific, defined life circumstance, the fact of the real act, with which the current laws and other legal acts associate the emergence, change or termination of civil rights and duties, i.e. . civil legal relations<1>. Therefore, from the point of view of the analysis of such a concept as "Delikt", it is fundamentally important first of all to determine the question that it is the estimated institution as a legal fact. -----------<1> See, for example: Civil Law: Tutorial: 2 t. T. 1 / T. ed. E. A. Sukhanov. M.: Beck, 1998. P. 324.

The fact that Delic is a legal fact can be characterized as an action undoubtedly. At the same time, the inaction of the face can also be, in the presence of all necessary signs, is estimated as a delique. So, one of the cases, satisfying the requirement for damages in connection with the provision of benefits on natural gas pays to certain categories of citizens, the Arbitration Court indicated that civil offense was expressed in the case under consideration in the illegal idle of the Ministry of Finance of the Republic, which did not fulfill the duties for compensation gas suppliers of losses formed in connection with the provision of the above benefits<1>. ——————————— <1> See: Resolution of the FAS of the Ural District of December 4, 2003 in case No. F09-444 / 2003.

The event as a kind of legal fact, of course, in itself can not act as a delique and thereby be the basis of deliberate responsibility. Delicect as a legal phenomenon matters only as a legal fact capable of generating a legal connection between the divinction and the victim, outside this ability there is no place and the delicate itself. If we are talking about the event, i.e. about the circumstance that does not depend on the will of people, there is no subject in such respects and there can be no subject (delinven), and therefore the very event itself, let it be able to generate any other legal relations , Can't be evaluated as Delic. Consequently, only an action (inaction) and its consequence can act as a delicate - a legal fact. By the way, the question of the will and its expression is one of the most difficult in the delicate theory. It is important to take into account that the designated obligation of the will and its manifestations in the division has one essential feature - determining what such will such will should be directed. The wildlife will actually focus primarily on the emergence of a legal fact (event or actions), which is further characterized by us as Delic, in the second place, depending on the estimation of the guilt of the delinven, on the onset of certain legal consequences in the form of harm, but never On the emergence of the delicate non-reimbursement of harm. As M. Parotoshek, it always notes on this occasion, the obligation to compensation for harm always arises regardless of the will of the offender<1>. ——————————— <1> Parothek M. Decree. cit. P. 92.

At the same time, the event often takes place in the delicate obligations. In confirmation of the said we give a few examples from arbitration practice. The plaintiff appealed to the Arbitration Court with a claim for damages in the amount of the value of burnt property. As was established by the court, between the plaintiff and the defendant was concluded a contract for the sale of property. After the supply and unloading of goods in the warehouse of the plaintiff, a fire occurred (event - from the point of view of the theory of legal facts). According to the results of the examination, it was revealed that the cause of the fire is the self-burning of the goods delivered due to the presence of an oxidizing agent (oil stains) on the floor of the container in which the cargo was transported by rail. The court found that the ignition of goods did not occur as a result of its natural properties, but in connection with the violations made by the defendant during loading of goods<1>. ——————————— <1> Resolution of the FAS of the East Siberian District of September 20, 2000 N A19-11829 / 99-22-F02-1668 / 00-C2.

In another case, the court recognized the requirement for compensation for damages caused by the flooding of water (event) of the premises held by the enterprise of the tenant-plaintiff to the owner of the rented building, and regarded such a requirement as a requirement from the Delica<1>. ——————————— <1> Resolution of the FAS of the Ural District of July 3, 2000 in case No. F09-873 / 2000-GK.

Another example is to cause harm as a result of falling from the roof of the snow home or a land (event), which has come as a result of improper execution by the defendant of its duties for servicing residential buildings<1>. ——————————— <1>

In all those listed cases, the legal circumstance with which the attack of harm is associated is an event, although the latter in each of these situations is the nature of the relative, i.e., directly and decisive depends on the will of the relevant subject of civil law. It seems that in the situation under consideration, the delicate should actually recognize the action (inaction), which caused the event (which is why it can only be about relative events). The said must be taken into account and when the characteristic of the causal relationship between the Delica and the coming harm: in this case, there will be no necessary sign of the immediacy between the validity of the validity of harm and its occurrence of malicious consequences. The fact is that in the specified chain appears in such circumstances another legal fact - the relative event. Taking into account the situation described in the analyzed, it is necessary to proceed from the fact that the basis of deliberate responsibility, which means that the appropriate commitment to compensation for harm is a complex legal composition, which includes not only the Delikt itself, expressed in this case in the form of action or inaction, but also due to them The relative event, which, although it exists as an independent legal fact, but as an element of a complex legal composition, as the basis of deliberate responsibility. Another question that needs to be discussed in relation to the problem of deliquet analysis as a basis for deliberate responsibility is the question of General and Special Delica. Of course, in this case, it is not about some special types of delique, rather about the principles of the valuation of the Delica as a whole and in each individual case. The principle of the General Delica, based on the basis of the delicate right, is formulated in the literature in relation to the deliberate responsibility as follows: "... According to this principle, harming in one person in itself is the basis of the emergence of the obligation to compensate the damage caused." Consequently, the victim should not be contracted by the anti-actions of the injury of harm or his guilt. The presence of them is designed. In this regard, the injury injection may be free from responsibility, only proving their absence. It is believed that the principle of the General Delica received the most complete expression in Art. 1382 of the Civil Code of France, according to which "whatever the human action, which caused other damage, obliges that the fault of which damage occurred, to compensation for damage"<1>. ——————————— <1> Civil law: Tutorial: in 2 tons. T. 2. semi-like II / Ed. E. A. Sukhanova. P. 442.

In other words, the specified principle expresses the fact that any harm is assumed to be illegal and subject to refund. It is also important for us that from the principle under consideration it follows directly that the fact of causing harm is already characterized by an action (inaction) or an event, as a result of which the damage has come as a delique. This circumstance determines the presumption of the fracture of the Delica, but, of course, does not predetermine the question of the guilt of the injury or the presence of a causal relationship between the actions (inaction) of the injury and harm itself. The obligation to proversely should be redistributed and the obligation to prove the requirement for compensation for damages: the victim is obliged to prove first of all the fact of causing damage to it and the presence of a causal relationship between the actions (inaction) of the injury and harmfulness, but is free from the need to prove the anti-reliquancy and guilt of the delinvent ; The obligation to proof their absence lies on the latter. Thus, the principle of the general delicate means only the fact that any harm is illegal and, accordingly, characterizes the actions (inaction) or an event as a delicate and is subject to refund. At the same time, today and in theory, and in judicial practice it is believed that the concept of "General Delikt" includes, as compulsory elements, the opposition of the behavior of the injury, the causal relationship between its illegal behavior and harm, as well as the damage causer<1>. ——————————— <1> See, for example: Resolution of the FAS of the East Siberian District of October 25, 2005 N A19-6173 / 04-7-F02-5227 / 05-C2.

In our opinion, such a point of view is in the root of erroneous. The fact is that the listed features account for terms of delicate responsibility, i.e., the conditions for the fulfillment of the obligations of the delinven (damage causer) to undergo the unfavorable consequences of its illegal behavior that has the result of causing damage to the victim. In other words, they do not at all make up the content of the general delicate, and they determine those additional conditions, the presence of which by virtue of the law is mandatory for the onset of delicate responsibility: the damage caused, according to the rule of the General Delica, should always be reimbursed - it is precisely such a principle from the need for unconditional protection. The rights and legitimate interests of participants in civil turnover and maintaining its stability. However, a specific person can be both obliged to such compensation and freed from it in connection with the presence or absence of the conditions listed above the conditions of deliberate responsibility. By the way, based on what has been said, it can be argued that the concepts of "Special Delikt" is not and cannot exist at all. The fact is that Delict as an action (inaction) or an event that has its result causing harm cannot have a common nor special character. In this case, it is more correct to talk about "Special Terms of Delicious Responsibility", in which there may be no separate general terms of responsibility for causing harm (for example, wines in case of damage to a source of increased danger; Art. 1079 of the Civil Code of the Russian Federation) or additional (special conditions characterizing guilt of the victim or his property position; Art. 1078, 1083 of the Civil Code of the Russian Federation). The same damage caused may be refundable even if the divincivent (damage causer) is not responsible for him due to the absence of the necessary conditions for such responsibility (for example, delicateness): it is best to demonstrate in cases where the harm caused by minor or incapable citizen. Considering the above, the incorrect looks such, for example, the interpretation of terms of delicate law: "... The specified norm of the right contains a special delic in the form of an innocent responsibility of the plaintiff ..."<1>. ——————————— <1> Resolution of the FAS of the East Siberian District dated June 14, 2000 in case No. A19-12484 / 99-14-F02-1020 / 00-C2.

Anti-relief of actions for harm as a condition for delicate responsibility

It is known that the actions as legal facts can also be subjected to dichotomous division and on the basis of compliance with their normative rights standards are classified on legitimate and unlawful. The general opinion is that Delikt is always an unlawful act. Moreover, "Anti-harmfulness of the injury of harm"<1> Considered in judicial practice as a mandatory and inalienable property of delikt and deliberate responsibility. As a general rule, based on a literal understanding of paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation, the harm caused to legitimate actions is not refundable. Relevant examples are quite numerous in judicial practice. So, one of the cases, the court directly indicated that "the harm caused by legitimate actions is not subject to reimbursement. The materials of the case found that ... Customs (damage injury. - L. K.) operated in accordance with the current ... legislation ... "<2>. ——————————— <1> Determination of the Supreme Arbitration Court of the Russian Federation of March 19, 2008 N 2962/08.<2> Resolution of the FAS of the Moscow District of February 18, 2002 in case N kg-A40 / 448-02.

Thus, the harm caused by delinquency in compliance with the latest standards and the requirements of objective law, the current legislation is not recognized as subject to refund. Cases establishing a commitment of compensation for harm caused by legitimate actions can be found a lot. First of all, it should be mentioned quite often in practice. Reimbursement of losses caused to ensure the claim. Article 98 of the APC RF provides that the defendant and other persons who are caused by losses to ensure the claim, after entering into force the judicial act of the Arbitration Court of the refusal to satisfy the claim, it is entitled to demand from the person who applied to ensure the claim, compensation for damages by presenting an appropriate claim. So, according to one of the cases of the Russian Federation, it was indicated that the materials of the case follows and the courts found that as a result of the adoption of measures to ensure the claim at the request of the defendant in another case, the plaintiff and his creditors caused losses. With reference to paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation and Art. 98 APC RF Court of this basis for damages satisfied<1>. ——————————— <1> Determination of the WHAT of the Russian Federation dated October 12, 2007 N 12724/07.

The same category of damages caused by legitimate actions should be attributed and cases of reimbursement of court costs (ch. 9 of the APC RF). Further, in a number of examples of deliquets that do not have signs of anti-volatility can also be mentioned by the Law of the Russian Federation of May 14, 1993 N 4979-1 "On Veterinary Engine"<1> (as amended from July 21, 2007). According to Art. 19 of the named law when eliminating the foci of specially dangerous animal diseases on the decisions of the highest executive bodies of the state of the constituent entities of the Russian Federation may be withdrawn animals and (or) livestock products with the payment of animal owner and (or) animal production products and (or) animal husbandry products due to Budget funds of the relevant subject of the Russian Federation and issuing a relevant document on this seizure to this owner. -----------<1> Vedomosti SND and Armed Forces of the Russian Federation. 1993. N 24. Art. 857.

About the Delica, consistent with legitimate actions, is mentioned in Art. 242 of the Civil Code of the Russian Federation ("requisition"), according to which in cases of natural disasters, accidents, epidemics, epizooty and in other circumstances that are emergency, property in the interests of the Company by decision of state bodies may be withdrawn by the owner in the manner and on the conditions that Installed by law, with the cost of this property. Another example: the case provided by Art. 57 Land Code of the Russian Federation<1>According to which the owners, land users, landowners and land tenants are reimbursed by losses, including the missed benefits caused by the legitimate removal of land for state or municipal needs. -----------<1> SZ RF. 2001. N 44. Art. 4147.

All the above allows us to argue that the delicate responsibility may occur and as a result of the commission of illegal action (inaction), which is initially determined by the most legal nature of the Delica, and the actions (inaction) of legitimate, i.e., relevant to the requirements and requirements of the law and other legal acts . Any harm A priori is unrelated and subject to compensation, since it is a violation (destruction, termination or diminution) of the subjective rights and legitimate interests of others, that from the point of view of the basic principles of civil law is unacceptable, except for the possible restriction of civil rights on the basis of federal law and only To the extent necessary, in order to protect the foundations of the constitutional system, morality, health, the rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (Article 1 of the Civil Code of the Russian Federation). The theoretical expression of this rule is the so-called principle of the General Delica. In other words, any legal fact, the result of which causes harm, is designed by the illegal and must be recognized by the Delict. Therefore, the fact that with legitimate causing harm (with a legitimate delikt) does not arise a delicate responsibility and harm is not refundable, is an exception and it is precisely as such an exception to paragraph 3 of Art. 1064 of the Civil Code. In other words, as an exception, there should be no cases in which the harm caused by legitimate actions is subject to refund, and those in which such harm is not subject to compensation. It seems that from the point of view of the delicate theory "Anti-Wragness" should be understood widely, as a concept that covers the violation not only the norms of objective law, but also any subjective civil rights and legitimate interests of the participants in turnover. And Delikt himself, being, taking into account the above, always unlawful, from the point of view of violation of the norms of objective law, can be characterized and as appropriate to such norms, and as contradictory act (action or inaction). In confirmation, this can be given to the provisions of Art. 1067 of the Civil Code of the Russian Federation ("causing harm in a state of emergency"). According to the named article, harm caused in a state of emergency, i.e., to eliminate the risk that threatens the damage itself to harm or other persons, if this danger in these circumstances could not be eliminated with other means, should be reimbursed by the person who caused harm. Thus, the legislator, in fact, recognized that Delic (causing harm) in this case is illegal, and therefore harm is subject to refund, despite the fact that due to the direct assumption of Art. The 14th of the Civil Code of the Russian Federation self-defense of civil rights is allowed, provided that self-defense methods should be proportioned by violation and not go beyond the actions necessary for its preventing. The reason for such a regulatory solution can only be that in reality any Delikt is unrelated, since the harm itself, in any case, violating the subjective civil rights and (or) the legitimate interests of the victim.

Harm as a condition for deliberate responsibility (concept and characteristics)

The value of harm from the point of view of deliberate responsibility is so large that it is very often mistakenly characterized even as its foundation. As a rule, "Under harm, as the basis of deliberate responsibility is understood to be unfavorable for the subject of civil law, property or non-property consequences arising from the damage or destruction of the property belonging to it, as well as as a result of the causing of injury or death to a citizen (physical person)"<1>. At the same time, the concept of "damage" is estimated as synonymous with the words "harm", and at a loss means a monetary assessment of property harm, i.e. the same harm, only expressed in money<2>. ——————————— <1> <2> Civil law: Tutorial: in 2 tons. T. 2. semi-like II / Ed. E. A. Sukhanova. M.: Volters Clever, 2004. P. 439.

The given traditional point of view seems to us not fully appropriate as a delicate theory and the current practice of applying current legislation. First of all, at the visible simplicity of the concept of "harm", its today's interpretation in the theory of civil law is not completely unambiguous. In particular, the noted is manifested in the matter of property harm. On the one hand, only the consequences arising from damage or destroy the property of the victim, on the other hand, any negative consequences, which may be expressed not only in damage, which can be expressed not only in damage or loss of things, are understood. And, for example, in the "non-receipt of income that the victim would receive if there were no malicious action"<1>. ——————————— <1> Civil law. Part Two: Tutorial / T. ed. V.P. Mozolin. P. 358.

In our opinion, the need to cover the assessed concept not only the consequences in the form of destruction or damage to someone else's property, but also incomplete income incomes causes greater doubts. On the one hand, the property harm in the literal sense of the word is damage in one form or another and the degree of property of the victim or, otherwise, the violation of the existing property status of the latter without taking into account the incomplete revenue. On the other hand, it is unacceptable to understand the harm only in a narrow sense, like the destruction or damage to someone else's property. After all, harm can be caused not only in connection with the specified circumstances, but also, for example, due to the violation of the repayment of creditors' claims in the liquidation of a legal entity: such harm is not "physical", but exclusively "economic" character. Interest represents the characteristics of property harm in judicial practice. Most often, property harm is estimated as actually suffered by victims, regardless of how the actual damage caused by property is estimated, that is, no matter how much the cost of damaged property decreased. For example, one of the cases discussed by the Russian Federation, the defendant in the case reimbursed the plaintiff harm caused by the plaintiff's car taking into account the wear of the affected vehicle, i.e., based on how much the cost of damaged property decreased. The Russian Federation, indicating the correctness of the recovery from the defendant the sum of the actual spending of the plaintiff, which turned out to be higher than the amount of reducing the value of damaged property, noted that there was no need to take into account the state "in which the property was at the time of harm. Such a restriction would contradict the situation of civil law on full damages "<1>. ——————————— <1> Determination of the WHAT of the Russian Federation of February 28, 2008 N 17730/07 "On refusal to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation".

In other cases, when determining the damage, the court, on the contrary, indicates the inadmissibility to proceed from the actually incurred by the plaintiff and, when making a decision, repels from those income that were not received by the plaintiff. So, the municipal enterprise appealed to the Arbitration Court to the Russian Federation represented by the Ministry of Finance of the Russian Federation with a claim for reimbursement of expenses for the transportation of certain categories of citizens in preferential tariffs. The court of first instance in satisfying the claim refused. The courts of appeal and cassation authorities left a court decision unchanged. At the same time, refusing to satisfy the claim, the courts proceeded from the following: "... The company did not document the size of the actually incurred expenditures on the transport of a preferential category of passengers, since according to paragraph 5 of Article 790 of the Civil Code of the Russian Federation, it is precisely the cost of the carrier, and not the cost (price ) Preferential travel tickets, on the basis of which actually, the amount of the claim was calculated ... The amount of the claim was calculated on the basis of the maximum tariff (value) of the ticket for transportation of passengers, and not from the actual expenses incurred<1>. ——————————— <1>

The Russian Federation considered the judicial acts to be canceled and, in particular, indicated: "... organizations directly provided to consumers services for free or at a preferential price, have the right to receive with proper public-legal education of compensation in the form of the fees not received from consumers ... Russian The federation, establishing the law ... Benefits in the form of free travel, assumed the duty of full refund of the transport enterprise for the provision of data from the federal budget "<1>. Thus, in the case under consideration, the court declared to evaluate the damage not on the basis of the actual expenses that suffered a carrier in connection with the transportation of passengers eligible for preferential passage, but pushing out of the carrier-received carrier in the full price of the sale of travel tickets. However, such harm cannot be regarded as a missed benefit - this is a real damage, since the violation of the right of the plaintiff is not connected with the transportation of passengers on preferential tariffs, but in the fact that the amount by the carrier for the fare is not properly reimbursed at the expense of the treasury due to the illegal inaction of the competent state authority . -----------<1> Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 5, 2008 N 16069/07.

All the above allows us to argue that the harm is the unfavorable consequences expressed in the termination or diminishing of the property or personal non-property subjective civil law or the intangible benefits belonging to it. Harm is the consequence of a delique, its actual (material) and legal results. The concept of "damage" can probably recognize the concept of "harm" with complete synonym, with the same contents designated above. So, one of the cases of the Russian Federation directly indicated that "the concept of" damage "... covers both the damage determined by the rules of Article 15 of the Civil Code of the Russian Federation and the adverse effects associated with the infringement of honor, dignity and business reputation.<1>, i.e. can have both property and non-property filling. -----------<1> Information letter from the Presidium of the Supreme Arbitration Court of the Russian Federation of August 13, 2004 N 83 "On some issues related to the use of part 3 of article 199 of the Arbitration Procedure Code of the Russian Federation".

At the same time, regarding the losses as a simple designation of the monetary assessment of property harm or damage, of course, it is impossible, since the losses are a concept, of course, more wider. And most importantly, to which it is necessary to pay attention to the concept of "loss" in its relationship with the concept of "property harm" is the fact that losses other than actually harm in its value assessment include also incomplete incomes, in other words , missed benefits. Invalidation of coverage with the concept of "harm" also lost profits is due to the fact that harm in any case is expressed in the termination or diminishing of the property or personal non-property subjective civil law or the intangible benefits belonging to it. The existence of a subjective civil law to receive income itself is possible, means that his violation will entail causing the victim of real damage; The missed benefit is the consequence of the legitimate interest of the participant in the turnover, not provided by the counter-subjective responsibility, which is most clearly possible to submit, in particular, on the example of an abstract missed benefit<1>. ——————————— <1> On this occasion, see, for example: Egorov A. V. The missed benefit: problems of theory and contradictions of practice // Losses and practice of their refund: a collection of articles / d. ed. M. A. Rogkov. M.: Statute, 2006. P. 78.

Thus, Delikt as its consequence may not have no harm, but also the beneficial benefits. This gives us, in particular, the basis to say that the name of the ch. 59 of the Civil Code of the Russian Federation - "Obligations due to harm" - does not fully reflect the features of the named category of obligations that arise not only in connection with the compensation of harm, but also due to the failed benefit from the victim. Finally, another question that we believe is important to discuss in the framework of the analysis of delicate responsibility is the question of the relationship of such concepts as "Delic" and "Debt." The named term itself ("debt") is extremely widely used by civil law in relation to a variety of relations. In general, it is understood as any duty of the debtor (transfer property, to fulfill work, pay money, etc. either to refrain from a certain action), although most often the debt in civil law is a monetary obligation. The concept of "debt" has also a general relationship, under which "debt" is an ethical category in which the moral task of a certain individual or group of persons (community) is expressed in specific social conditions, which becomes the internally accepted obligation. Interestingly, the fact that the initial value of the Latin "Culpa" (in the ladle with a lat is wines, which is one of the key concepts of delicate law) was the "duty (expressed in monetary or other material equivalent)" (\u003d Aes Alienum), Where to assume the appearance of the values \u200b\u200b"(objective) need to pay interest"\u003e "Consciousness of the need to return the debt, (internally) the state of the debtor"; The preserved texts fix the story of the word ...: "Responsibility (for the commission of a short-term) ..."\u003e "Feeling of guilt" ...\u003e "Wines"<1>. ——————————— <1> Salopov A. I. Etymology and the initial value of Latin Culpa // Ancient right. IVS AntiQvvm. N 1 (3). 1998. M.: Spark, 1998. P. 83.

Analyzing the concept of "Delic" in its relationship with the concept of "debt", it can be argued that debt along with harm (damage) or loss is one of the legal consequences of the Delica. Debt as a responsibility to compensate harm is the consequence of a delique, which has the distinctive feature that he arises on the side of the delinven (damage causer), while harm (damage or loss) characterize the consequences of the Delica by the victim (creditor). It should be borne in mind that it is a debt that is characterized by a delicate responsibility as a special institution of civil law, as part of which the imposition on the face of the duty (debt) occurs outside the will on the most specified person (delinven): as already noted above, the will of the division is never aimed at The emergence of damage to harm, and always, for some exceptions, only for the causation of this latter. Interestingly, based on, for example, from the general meaning of paragraph 3 of Art. 308 of the Civil Code of the Russian Federation may arise from turnover participants, including independently of their will, as it takes place, in particular, in the case of a delict and the emergence of the obligation due to harm, which means that the relevant right is the requirement of the victim. However, the emergence of duties besides the will is impossible for the general rule. Delikt is characterized by that feature that when it comes to the obligation to compensate for harm (debt), there is due to the law regardless of dependence and even contrary to the will of the division. It is this feature that the debt is characterized in the framework of the delicate legal relations: it is the consequence of a delicate, having the nature of the civil obligation arising on the side of the division and regardless of the will of the latter, i.e., delicate responsibility. In addition to debt (in the form of a duty to compensate for harm, which is a delicate responsibility), the consequence of the delinven delicate may also be on its side property enrichment. As it is true in the literature, "out of the law it does not follow the inability to impose responsibility on the rules on the delicyts, if it learned the property benefit, causing the sake of this to other harm. Such an understanding of obligations from the harm is contrary to all of our long-term judicial practice "<1>. However, for the correct assessment of the rights and obligations, in this case, the focus of the will of the participants in relations is primarily important - the latter is precisely in causing harm, even with the purpose of enriching the delinven, but not vice versa. -----------<1> Comments on the Civil Code of the Russian Federation (part two) / Ed. O. M. Kozyr, A. L. Makovsky, S. A. Khokhlov. M.: MCFER, 1996. P. 236.

For the most complete analysis of the concept of "harm" and the assessment of his place and role as conditions of delicate responsibility is necessary, in our opinion, and the discussion of the issue of, we will say, the depth of the property delique, that is, not about the nature, but about the degree of harm caused determined in the form of the cost of the cost of damage to the total value of the property. An analysis of the specified question may have a very large practical significance, since the features of damage compensation often depend on the delicate depth. Property Delikt can be expressed in the destruction of property, i.e., in full termination of his material existence, in damage to property, which eliminates the possibility of further use of such property for its intended purpose and, therefore, extracting properties and qualities from it useful in turnover, as well as Such damage that its further use does not exclude. It should be borne in mind that in the case when the property as a result of harm is lost fully, the requirement cannot be stated to recover the cost of its recovery costs. So, an individual entrepreneur appealed to the Arbitration Court with a suit to society about compensation for damage caused by property (car) of the plaintiff as a result of a traffic accident, which happened due to the driver of the driver of the defendant car. The lawsuit was satisfied, but the amount was charged for the repair of a damaged vehicle, turned out to be twice the total cost of the car of the same brand and the same quality. The specified circumstance served as a reason to appeal the decision of the court of first instance. The court of appeal, appreciating all the materials available in the case and arguments, came to the conclusion that the controversial car was the plaintiff lost (disposal), and therefore its recovery is impossible. Given that the claimant claimed the requirements for the recovery of the cost of repairing property, which is actually lost, and not about the reimbursement of this property, the court found the claimed claim was unreasonable and refused to satisfy it. The court of cassation instance, by canceling the decree of the appellate instance, indicated that by virtue of Art. 15 of the Civil Code of the Russian Federation the plaintiff rightfully demanded compensation for losses in the amount of the costs, which he will have to produce to restore violated law. Since the plaintiff, in accordance with the requirements of Art. 1064, 1079 of the Civil Code of the Russian Federation, proved to harm his property, the opposition to the behavior of the injury and the causal connection between such behavior and harm, and the defendant did not provide evidence of the absence of his guilt, the refusal to satisfy the claimed claim, according to the court of cassation, was wrong. At the same time, the conclusions of the court of appeal claim that the damaged car the plaintiff is recycled and the alleged costs of its repair do not have a real basis, the court did not give a proper legal assessment. The Russian Federation, by canceling the judicial acts held in the case, in particular, indicated that the plaintiff should have prove that the estimated costs of the property repairs are real, that is, there is a thing for the restoration of which they will be incurred by such expenses: "With a complete loss of property who caused damage, the requirement for reimbursement of costs for its restoration cannot be considered as a legal basis "<1>. ——————————— <1> Resolution of the Presidium of the Court of the Russian Federation of June 13, 2000 N 8904/99.

Thus, if the harm caused by the delicate is entails the complete destruction of the property, the compensation of harm by applying the claim to pay the amount of expenses for its recovery is impossible. In this case, harm can be reimbursed either in kind (by providing the property of the same kind and quality), or in cash (by paying the value of such property). Let us give another example illustrating the name of the distribution of the delicate from the reverse side. So, the plaintiff recovered from the defendant in order of compensation for harm the cost of damaged property. When considering the case, the court found that the property was preserved in possession of the plaintiff and the latter continues to actually use it for its intended purpose. Given these circumstances, the court refused the lawsuit and drew attention to the following: "... With such a situation, the harm is reimbursed in the amount of the amount to which the value of the property decreased. In the amount of property value, harm is reimbursed in the case of its loss or unsuitability for use on purpose with the definition of legal fate of damaged property in order to prevent unjust enrichment of the victim "<1>. ——————————— <1> Resolution of the FAS of the Ural District of July 3, 2000 N F09-873 / 2000-GK.

Considering the designated problem, we are confronted with another question that requires attention - with the question of the legal fate of that property, which was damaged, but not fully lost, although it cannot be used in its intended purpose. The appropriate problem is quite often arising, for example, in the practice of insurance. So, when an insured event occurs, as a result of harm, the insurer often after compensation for harm to the insurer requires the transfer of damaged property to it or the corresponding part of the property (for example, the details of the damaged vehicle). The legislator does not offer solutions to the problem, but the need for it today is obvious. The only means available for the participants of the turnover in resolving the specified question is a contract, in particular the inclusion of relevant conditions in the insurance contract. However, contractual regulation is not always possible. In any case, in our opinion, when determining the legal fate of damaged property (in case of compensation for the victim of its full value), it should be proceeded from the inadmissibility of unjust enrichment of the victim and therefore, if the property, as a result of harm, cannot be used for its intended purpose, but not completely destroyed and Because of this, it continues to be some value value, a person who is obliged to compensate for harm, has the right to either require the transfer of such property to it, or reduce the amount of refund on the estimated value of such damaged property or its respective part. These are some controversial issues related to the basis and terms of deliberate responsibility.

Controversial issues of the subject line of a delicate commitment

One of the most difficult and ambiguous solved issues related to a delicency responsibility is the problem of determining the victim in a situation where the damage to compensation is caused by property, the interest in the safety of which is available at several people at once. Such a situation takes place, for example, in the case when the harm caused to leased property, property that is in trust management or gratuitous use, property transferred under the storage contract, when transferring property to a deposit and in other similar cases. If the property is causing harm in these situations, the question arises about who in fact acquires the right to compensation for harm: the direct owner of the property or his owner (a person entrusted with respect to this property)? Let us give an example. OJSC "Altai Tire Company" appealed to the Arbitration Court with a claim to CJSC Barnaulmetulurgmontazh about the recovery in the order of the monetary amount paid by the previously plaintiff in favor of OJSC Altai Tire Combine. As established by the materials of the case, the lease agreement was concluded between the claimant and OJSC Altai Tire Plant, according to the terms of which the water pipeline of industrial water belonging to the plaintiff was transferred to the temporary possession and use of OJSC Altai Tire Plant. In the course of the respondent of earthworks and as a result of a gross violation of their rules for conducting the specified water supply was damaged. In connection with these events and guided by the norms of civil legislation on lease, OJSC Altai Tire Plant appealed to the Arbitration Court with a claim to the Altai Bus Company OJSC on compensation for damages (including missed benefits) related to the restoration of rented property, the staff . The plaintiff declared these requirements, and in the future it turned to the direct injury to the damage - CJSC Barnaulmetulurgmontazh, determining the amount of harm caused on the basis of those expenses that the plaintiff suffered in connection with the payments in favor of the tenant (OJSC Altai Tire Plant OJSC). By the decision of the court of first instance, left unchanged and the appellate court, the claim was satisfied. However, the court of cassation in the lawsuit refused to follow the following grounds: "As can be seen from the case of the case, owned by OJSC Altai Tire Company, on the right of ownership, the water pipe was transferred by OJSC Altai Tire Plant, under the lease agreement ... the damage to the Altai Tire Plant OJSC (Tenantor . - L. K.) due to water damage to the defendant. By virtue of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation, the harm caused by the property of a legal entity is subject to compensation in full by the person who hurt. The law of the duty of compensation for harm may be assigned to a person who is not harmful ... The relationship of OJSC "Altai Tire Plant" and OJSC Altai Tire Company, arising from the lease agreement, have no relation to the obligations due to harm ... The court found that the person, which caused harm, is OJSC Altai Tire Combine<1> (Highlighting me. - L. K.). -----------<1>

Thus, the court acknowledged that a tenant should be considered victims in the situation under consideration. The owner of damaged property in the right to satisfy the claim for compensation for harm was essentially denied. In other words, the court, apparently, considered that the owner from the fact of damage to the property transferred to the rent did not suffer, because in any case it has the right to return the property under the termination of the lease agreement in the state in which he received it, taking into account normal wear or condition due to the contract (paragraph 1 of Art. 622 of the Civil Code of the Russian Federation). From the title positions, the logic of the court is quite understandable and reasonable. However, the tenant in this case is protected by contractual mechanisms, since, first of all, it has the right to lease property in a state corresponding to the terms of the contract and the appointment of property (Article 611 of the Civil Code of the Russian Federation), and, in continuation of this common law, is endowed the empower to require the elimination of deficiencies, reducing the rent, termination of the contract, and also have the right to keep the amount of expenses incurred by him in connection with the elimination of deficiencies, from the rent (Article 612 of the Civil Code of the Russian Federation), and secondly, the tenant is also protected by the obligation established by law Lessor to produce overhauxal overhaul (paragraph 1 of Art. 616 of the Civil Code of the Russian Federation). In other words, on the one hand, the owner, of course, interested in the preservation of the property belonging to him, is protected by the obligation of the tenant to return property under the termination of the Treaty in the appropriate condition, on the other, the tenant, which is also interested in ensuring the safety of the same property in its immediate The ownership is also protected by compulsory instruments, i.e., established by the Duties of the Lessor (owner) on the maintenance of rented property and the elimination of shortcomings. Of course, in the preservation of property in the situation under consideration, both participants in rental relations are interested in the situation: both the landlord and the tenant. The first - as the property belongs to him on the right of ownership and is one of the components of its property sphere, the second - as it is most often the immediate owner, provides the use of useful properties from such property from such property and qualities. And, in our opinion, it will not be correct to raise the question in such a way that the decision is determined by which of the participants of the estimated legal relations are more interested in the preservation of such property and, accordingly, who has the right to compensation for damage caused by property. It seems that from the point of view of assessing the economic interests of participants in the turnover of the victims in this case, both the tenant and the landlords should be recognized, since both of them, although in different extent, are experiencing well-known inconvenience in connection with damage to themselves on the right of lease or property . However, the law does not have an unequivocal decision on who exactly the tenant or the landlord must carry property consequences of harm in the case under consideration. In our opinion, the decision of the specified question directly depends on who the law is entrusted with the risk of random death or damage to property. Risk as the risk of the emergence of the adverse effects of a property or personal nature, regarding which they are not known whether they will come or not, in contractual relations are characterized as "the probability of not payable due to the other side of the obligation of losses or other expenses, the condition of which is not the facial fault, Whose property sphere they will be attributed to the law or contract "<1>. In other words, solving the question of who exactly should be recognized by victims in causing harm to the property transmitted for rent, it is necessary to rely on whose property area (landlord or tenant) includes the adverse effects of such harms, in other words, which of them two Risk of random death or damage to property. -----------<1> D. Arkhipov A. Theory of the theory of risk in the contractual commitment // Actual problems of civil law. Vol. 9. M.: Norm, 2005. P. 399.

An indicated problem is solved in different ways in relation to various rental relations. So, according to Art. 669 of the Civil Code of the Russian Federation, regulating the relations of the financial lease (leasing), the risk of random death or random damage to the leased property moves to the tenant at the time of transferring to the leased property, unless otherwise provided by the Finance Rental Treaty. In contrast to the risk of random death or damage to the property marked as a general rule, the landlord carries<1>. ——————————— <1> Civil law: Tutorial: in 2 tons. T. 2. Semi-like I / Ed. E. A. Sukhanova. M.: Volters Clever, 2004. P. 478.

Based on the leased to the leased, the landlord, with the exception of cases with the financial lease, must recognize the landlord, with the exception of the law of the risk of random death or damage to the property. The correctness of the formulated thesis is also confirmed by the fact that in accordance with Art. 639 of the Civil Code of the Russian Federation, regulating the relationship associated with the vehicle rental with the crew, in the event of death or damage to the leased vehicle, the tenant is obliged to reimburse the landlord caused losses only with the condition if the latter proves that death or damage to the vehicle occurred under the circumstances for which The tenant is responsible in accordance with the law or the lease agreement. Thus, as a general rule, the risk of random death or damage to property is the landlord; He, on the basis of the logic adopted above, should be recognized as victims in the delicate legal relations. In other words, in the above case, the court made incorrect conclusion that, when harming the property transferred to the lease, harm is considered to be caused to the tenant; Harm in such a situation should be considered to be causing the landlord as property owner. Based on the above, we can make two conclusions, meaningful in terms of the characteristic of delicate responsibility. First, victims with the damage to the leased property should recognize the landlord, and not the tenant. Secondly, when determining the amount of damage caused, and therefore, the property equivalent of deliberate responsibility should be taken into account only by adverse effects for the property owner of the property, but not the influence of harm to the property position of the tenant. However, the tenant with such a state of affairs may also be caused by property innovative damage due primarily to the impossibility of using rented property and extracting useful qualities and properties from such property. In addition, with causing harm to the leased property, the harm may be passing and the property of the tenant itself (for example, separable improvements of leased property or property in leased premises). So, according to one of the cases, the court recognized as reasonable and subject to satisfaction the requirement of a tenant about compensation for harm caused by the belt own property as a result of flooding rented premises<1>. In the above cases, the harm, expressed in the missed benefit of the tenant or in real damage caused by the property belonging to the tenant on the right of ownership, is subject to a delinquency in favor of the tenant himself. Accordingly, the requirements for compensation for such harm can be presented only by the tenant. -----------<1> Resolution of the FAS of the Volga-Vyatsky district of May 25, 2007 in case No. A28-2558 / 2006-146 / 9.

Does the landlord have the right to compensate harm to the tenant in the situation under consideration, guided by Art. 612 of the Civil Code of the Russian Federation and the consideration that the deficiencies formed as a result of damage prevent the use of property? The answer to this question as a whole should be positive. After all, the landlord connects and due to the existing obligation the need to transfer property to the tenant suitable for the use of the use agreement, and the obligation to carry out overhaul in relation to this property, if it requires the actual necessity (Article 616 of the Civil Code of the Russian Federation). However, the Lessor does not have a duty to reimburse harm in the form of a leased benefit of the tenant or that harm that is caused by the belt own property, since these losses are not related to non-fulfillment (inappropriate execution) by the landlord of its obligations under the lease agreement. Thus, in this regard, at the very beginning of this section, the court dispute refuse the landlord only in terms of its requirements, namely, those based on the compensation of the tenant's losses, expressed in the simple personnel and the formation of missed benefits, but not in those that associated with the restoration of the tenant of the damaged property (water supply). Accordingly, in this, the last, part of the landlord has the right to refer to the division with the requirement for compensation for harm. Based on this, it can be argued that the same activity of the division can generate obligations to reimburse harm to various persons, while the subject of such obligations will be determined not only to the belonging of damaged property to this or another person, but also the nature of the damaged harm and In particular, whether such harm is pronounced in real damage or in missed benefit. The question of the right of the landlord in the situation under consideration to reimburse the tenant caused damage to the full volume and appeal in the order in the order of regression to the direct injury damage is not unambiguously solved. Thus, in the judicial dispute reviewed above, the court refused to the landlord, an expulsive tenant caused damage in full (including that part, which is determined by the costs of restoring damaged property), referring to the fact that the landlord is not a person on which the law is entrusted The duty compensation for harm. At the same time, the court indicated, in particular, that "the law of the duty of compensation for harm may be assigned to a person who is not harmful (paragraph 2 of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation). Ratio of OJSC "Altai Town Plant" (tenant. - L. K.) and OJSC Altai Tire Company (Lessor. - L. K.), arising from the lease agreement, are not related to obligations due to harm. Another law, on the basis of which the obligation of compensation for harm should be assigned to the face (OJSC "Altai Tire Company"), which is not a damage to the plaintiff. The court found that the person who was harm was caused is the Altai Tire Plant OJSC. Considering the foregoing, the arbitration court reasonably concluded that the plaintiff did not prove that it has the right of the reverse demand (regression) ... "<1>. ——————————— <1> Resolution of the FAS of the West Siberian District of September 18, 2008 in case No. F04-3012 / 2008 (9548-A03-16).

In other words, the Court regarded that the person who had caused damage caused by the victim was entitled to the direct demand (regression) to the immediate injury to the damage to the damage only if the law on the specified person is directly entrusted with the obligation to compensate the harm caused to the victim, and such a duty exists outside The contractual legal relations between the parties. Otherwise, according to the court, the person, the impracticate harm is deprived of the right of the reverse demand (regression) to the injury. Unfortunately, the court in the evaluated dispute did not give a legal assessment of those relationships that have developed between the tenant and the landlord due to the reimbursement of the first damage caused. Probably, given that the landlord was not a damage caused by a person who is obliged to compensate for the harm, according to the above-mentioned logic of the court received by the tenant, funds received in reimbursement should be probably regarded as its unjust enrichment (Art. 1102 of the Civil Code of the Russian Federation). In our opinion, the court decision, refusing to the landlord in the situation in question in the right of the reverse claim (regression) to the division, is in the root of erroneous. First, compensation for the tenant caused damage, the landlord acted in the legal field defined by the contractual relations of the lease, guided by the obligations arising from such relations, as necessary, the overhaul of the leased property and ensure the tenant the opportunity to enjoy such property with unhindered and established contracts. . Second, paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation directly does not establish such restrictions as the need to establish a law of damage to harm in relation to a person who has actually caused harm and is not the injury (division). According to the literal text of the specified norm, the person, the imposed harm caused by another person (by the employee in the execution of service, official or other labor duties, the person who manage the vehicle, etc.), has the right to reverse demand (regression) to this person In the amount of the reimbursement paid, unless otherwise established by law. " Some doubts, however, may be caused by the following examples and indicating that all other cases that the validation is evaluated should be "similar". We believe that the legislator, of course, could not proceed from the fact that any person without any of those established on that legal grounds is entitled to compensate the damage caused by a third party, and then turn to this latter in regression. At the same time, the provision that the obligation of the person to compensate the damage caused by the victim should flow only from the norms of the law regulating the obligations from the harm, it is clearly not justified. Such a duty equally can flow from other norms of the law, and even from the contract. It is important that this obligation should have the necessary legal basis. The specific requirements for the characteristics of such a legal framework are not established by the legislator. In other words, in the situation under consideration with the cause of harm to the leased property under the general rule (unless otherwise established by law or the contract) the duty of the landlord for reimbursement of the harm to the tenant (in terms of the costs of restoring damaged leased property) follows from Art. 612, 616 of the Civil Code of the Russian Federation, and therefore for the landlord that caused damage to the specified part should recognize the right of the reverse demand (regression) to the divinner. In confirmation of the above, we give an example from a different treaty area - storage contract. It is known that as a general rule, the keeper is responsible before the collar for the loss or damage to the storage of property (Article 891, 902 of the Civil Code of the Russian Federation). Despite the fact that the duty of the keeper to compensate the harm caused from contractual relations, judicial practice proceeds from the fact that the keeper is endowed with the right to reverse the injury to the damage (divintee). According to one of the cases, the judicial acts on which were subsequently canceled on the other basis, the court was made precisely such conclusions. Thus, Master LLC appealed to the Arbitration Court with a claim to Metallopttorg OJSC on the recovery of the sum of money in accordance with paragraph 1 of Art. 1081 of the Civil Code. To participate in the case as a third party was attracted by LLC Stroyd. As was established by the court, between OJSC "Metallopttorg" (landlord) and Master LLC (tenant) was signed a lease agreement for non-residential premises used by the tenant as warehouse, including for storing the property of Sostdom LLC. By virtue of the conditions for the storage contract of the Keeper (Master LLC), they answered the loss, shortage or damage to the storage of goods, if it does not prove that such loss, shortage or damage occurred due to the circumstances of force majeure or as a result of intent or gross negligence of the clerk. In the specified storage room there was a fire, as a result of which part of the goods stored in it was destroyed, the other part is damaged. Master, guided by the terms of the storage contract, assumed the obligation to compensate for the harm caused to the compactor - Sostdom LLC, after which, referring to the emergence of a fire for the fault of the Lessor (OJSC "Metallopttorg"), Master LLC appealed to the court With a claim for compensation for damage due to regression on the basis of paragraph 1 of Art. 1081 of the Civil Code. The courts of all instances, resolving the specified dispute, proceeded from the fact that the right of the reverse claim for compensation for damage to the division in the situation under consideration is undoubtedly admitted by the keeper<1>. ——————————— <1> Resolution of the FAS of the Central District of October 5, 2006 in case No. A14-23079 / 2005/726 / 9.

Thus, an authorized person in a delicate commitment should be recognized as a subject endowed with property interest in the preservation of damaged property. Such are some controversial issues of the Institute of Delicious Responsibility, regarding which there are no clear and unambiguous solutions in the practice and theory of civil law, the need for which nonetheless exists.

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Delicious responsibility is responsibility for the caused damage. Its concept is formulated in Article 1064 of the Civil Code of the Russian Federation: the harm caused to the person or the property of a citizen, as well as the harm caused by the property of a legal entity, states a compensation in full by the person who caused harm.

The basis of the delicate responsibility is the legal fact with which the violation of the subjective law of the victim is connected - the presence of harm. Terms of responsibility are the requirements specified in the law, which characterize the basis of responsibility and necessary to apply the appropriate sanctions. Thus, the basis and conditions of responsibility are closely interrelated categories. The literature notes that the concepts of "base" and "conditions" of responsibility are often mixed and mistaken as identical.

A number of authors founding civil liability recognize the "composition of civil offense" in the sense of a set of common, typical conditions, the presence of which is necessary to impose responsibility to the offender. In addition, there is an unacceptability of the provision that in some cases "limited" (truncated) composition of civil offense (for example, when the law provides for responsibility, regardless of the guilt and wine falls from among the elements of the composition).

The basis of civil liability (the only and general), according to one of the opponents of the concept of the branch of the offense V.V. Vitryansky, is a violation of subjective civil rights, since civil liability is the responsibility of the violator before the victim, its common goal is to restore violated rights. But along with this it is indicated that for the application of civil liability, in addition to the ground, it is necessary to have the conditions provided for by the law, and are called the same conditions that are investigated and supporters of the composition of civil offense - violation of subjective civil rights, damages (harm) caused The relationship between impairment of rights and losses (harm), the wizer of the violator.

In my opinion, in relation to the delicate obligations, violation of subjective civil rights means the fact of harm. Thus, the basis of delicate responsibility should recognize the fact of causing harm to the property of a citizen or a legal entity or non-property spanners - life, a citizen's health.

In the literature, the widespread view was glad, according to which the harm is one of the conditions for deliberate responsibility. However, such a look contains a contradiction in itself: if there is harm, it is incorrect to say that harm is the condition of responsibility for this harm. In fact, harm (harm) is, the basis for the possible application of responsibility to the person who violates the subjective right of another person.

Under harm, the property or non-property consequences that arose as a result of damage or destruction of the property belonging to it, as well as as a result of the causation of injury or death to a citizen (physical person).

As indicated in paragraph 1 of Article 1064 of the Civil Code of the Russian Federation, harm may be caused by the personality "or" property ". Causing harm to property (property harm) means a violation of the property sphere of person in the form of a decrease in its property benefits or the diminution of their value. Sometimes property harm is determined As a difference between the material situation of the victim before causing harm and after.

In case of harm to the personality, the object of the offense is the intangible benefits - the life and human health. But if there is a commitment from the causation of such harm, the mainly property consequences are taken into account, that is, property harm is subject to reimbursement. Only in cases stipulated by law, moral damage is also allowed (clause 1 of Article 151, paragraph 2 of Article 1099 of the Civil Code of the Russian Federation).

Property harm is often referred to as the damage. For example, in Article 53 of the Constitution of the Russian Federation, the citizen's right to compensation is enshrined. Civil Code consistently consistently use the term "harm". However, the word "damage" is sometimes used. For example, in Article 1088 of the Civil Code of the Russian Federation, it is planned to compensate for persons who suffered damage as a result of the death of the breadwinner.

With the concepts of "harm", "damage" the concept of "loss" comes into contact. The loss is called harm (damage), expressed in money. Thus, the loss is a monetary assessment of property harm.

Independent importance is the concept of "moral harm". With damage to harm, not only property consequences may be associated with an offense, but also implications that have no assessment or having a minor cost.

In the presence of harm as a reason for deliberate responsibility, to apply coercive measures to the offender, it is necessary to establish the presence of conditions for delicate responsibility. They are part of the General Delica, that is, they have a general value and are subject to use if the law does not provide otherwise.

Terms of delicate responsibility are mandatory general requirements, the observance of which is necessary in the case of appropriate responsibility to the offender - sanctions, that is, to force it to fulfill the obligation to compensate for harm.

The delicate commitment and, accordingly, the delicate responsibility for causing harm occurs if there are following conditions:

Anti-fertility of the behavior of a person who caused;

responsibility harm to the state body

The causal relationship between the illegal behavior of the injury and harm issued;

Wine facial harmful.

Behavior is unlawful, if the person, firstly, violates the rule of law and, secondly, simultaneously violates the subjective right of a particular person. For example, carelessly abandoned metallic subject citizen caused injury to another citizen. As a result, the norms of objective right to protect the life and human health and at the same time the subjective law of the victim to health were violated.

The law proceeds from the presumption of anti-infractions of behavior, which caused harm caused, follows from the principle of the General Delica. In accordance with this principle, any damage to personality or property should be considered as an unlawful if the law does not provide otherwise. From the named principle it also follows that the victim does not impose the obligation to prove the opposition of behavior of the injury of harm, since it is assumed.

Illegal behavior is expressed as in active actions (for example, the harm caused to the citizen as a result of the unlawful use of his name) and in the inaction (for example, in connection with the violation of the obligatory rules for labor protection and safety technician at the enterprise, a group of workers was poisoned gas).

In life, there are often situations where the harm caused, but the behavior of the person who caused this harm does not recognize the law. As a general rule, harm caused by legitimate actions is not subject to reimbursement. For example, in the fire extinguishing, the property in the fire zone is usually damaged, but harm due to this is not refundable if the actions of firefighters were committed under the relevant rules.

It is legitimate to cause harm to the action, which caused the harmony of the victim himself, if it is expressed by a capable person and freely (for example, consent to the transplantation of organs).

A common case of legitimate harm is causing it in the state of the necessary defense. According to Article 1066 of the Civil Code of the Russian Federation, the harm caused in the state of the necessary defense, the reimbursement is not subject to if it is not exceeded its limits. In addition, the law provides for the case when compensation for harm caused by the actions is permitted (Article 1067 of the Civil Code of the Russian Federation). The state of extreme defense is the situation where the actions causeting harm are committed in extreme conditions in order to eliminate the danger that threatens the most injured harm or other persons if this danger in these circumstances could not be eliminated by other means.

The causal relationship between the action (inaction) of the injury and harm is a prerequisite for the occurrence of delicate responsibility. The causal relationship is the philosophical category, reflecting such objective existing bonds in nature and society in which some phenomena are the cause, and other consequences. In the science of civil law, many theories of the causal relationship are proposed. When considering specific cases of compensation for harm, when it is difficult to solve the issue of a legally significant causal connection, it is necessary to proceed from the fact that this result is almost always a consequence of a number of uneven circumstances in their meaning - conditions.

The fault of the damage is one of the terms of deliberate responsibility. For a long time, the idea of \u200b\u200bfault as a mental attitude to his behavior in the form of intent or negligence was dominated in Soviet literature. The general rule of fault, as a condition for delicate responsibility, the law formulates as follows: the person who has caused harm is exempt from compensation for harm if it proves that the harm is caused by its fault (paragraph 2 of Article 1064 of the Civil Code of the Russian Federation). Thus, in civil law, the presumption of guilt.

Wines in civil law may be in the form of intent, coarse and simple negligence. The form of guilt does not matter for the offensive (unaccepting) of responsibility, the condition of deliberate responsibility is not a form of guilt, but wines as such. Wines in the form of intent lies in intentional actions (inaction), which have a focus on causing harm. Wines in the form of coarse negligence represents no care for any caringness and diligence in behavior; Wines in the form of simple negligence implies misappropriation of due caringness and diligence in affairs. However, the form of guilt (the degree of guilt) has an impact on the size (volume) of responsibility, and in this case the degree of guilt and the cause of harm and the victim is subject to consideration.

Along with the general rule of fault, as a condition for deliberate responsibility in paragraph 2 of Article 1064 of the Civil Code of the Russian Federation, it is indicated for the possibility of exclusion from it: the law may be provided for compensation for harm and in the absence of guilt damage. Such exceptions are provided for by the rules for some special deliquets, for example, responsibility for harm caused by the source of increased hazard (clause 1 of Article 1079 of the Civil Code of the Russian Federation); On liability for the harm caused by the illegal actions of the bodies of inquiry, the preliminary investigation, the prosecutor's office and the court (Article 1070 of the Civil Code of the Russian Federation).

It should be said that the Civil Code of the Russian Federation plays an important role in protecting the rights and interests of citizens and legal entities, which caused harm. First, there was an expansion of the legal regulation of property and related non-property legal relations. For example, there were norms providing compensation for causing moral damage; Secondly, if earlier, many questions of this institute found their consolidation in subtitle acts, in judicial practice, now they have found their fastening at the level of the law. It should be noted that the obligations from harm are mainly settled in codification acts; Thirdly, further legal consolidation received guarantees of the rights and interests of citizens and organizations, which were harmful; Fourth, the warranty-compensation measures were added educational and preventive measures of impact (Article 1065 of the Civil Code of the Russian Federation).

Delicious responsibility is a type of responsibility that comes in the absence of negotiated relationships between the injury caused and the person who caused damage. On some points of these relations, it is described in this article.

Delicious commitments and responsibility in civil law

In case of applying property or non-property damage to one person to another, the violator has an obligation to compensate for such harm, even if there are no contractual relations between these persons. It is for this reason that the delicate responsibility in civil law is considered as a kind of non-standard responsibility (translated from Latin delictum - "offense").

In civil law, these relations between the parties regulates ch. 59 Civil Code of the Russian Federation. The necessary information on the types of civil liability can be found in the division of our site "Civil liability" in the same name.

Delicious obligations arise due to direct indication of the law and regardless of the desire and will of the parties. The basis of the occurrence - causing damage to a third party. Damage can be applied:

life and health;
ownership;
honor and dignity;
other subjective rights.

That is, the specified type of liability occurs when harm is harmful not only material, but also intangible benefits.

Nuances of damage compensation

In case of attracting a person to liability for a delicate offense, it can compensate for the injured harmful harm:

actually;
money.

It is worth noting that in practice there is a combination of these two ways, when the court obliges the defendant and fulfill the obligation in kind, and compensate for the damages of money.

The execution of the delicate commitment can be assigned to the law on a person who is not a damage. For example, with damage to the source of increased risk (for example, by road), the person, but the owner of the source of danger (the owner, tenant, etc., see paragraph 19 of the Decisions of the Plenum of the Armed Forces of the Russian Federation from 26.01, is responsible. 2010 No. 1). Subsequently, the owner of the transport will be able to impose a regressive claim.

Delicious commitments in civil law are characterized by the following conditions for their occurrence:

The presence of illegal act.
The presence of damage.
The presence of harm causer (delinven).
The presence of a causal relationship between the perfect violation and the damage.

Only the totality of all four listed circumstances makes it possible to impose civil liability to the defendant in the form of harm to the victim (see the decision of the Arbitration Court of Sevastopol dated November 16, 2017 in case No. A84-691 / 2017).

IMPORTANT! In certain law cases, damage caused is not refundable, for example, with the necessary defense (Article 1066 of the Civil Code of the Russian Federation). By virtue of the presumption of anti-influential harm, the obligation to evaporate the opposite is imposed on the cause.

Contractual and Delicate Responsibility: similarities and differences

All types of responsibility in civil law are aimed primarily to restore the interests of the victim by property compensation at the expense of the intruder. This focus is negotiable and delicate responsibility similar.

The differences between them are as follows:

Foundation of the offensive. Contractual liability is a consequence of violation of contractual obligations of the Parties (it can be established in the contract, and in law). Delicate arises from the violation of the overall duty of all persons to comply with other people's subjective rights.
The nature of the norms. The change or limitation of delicate responsibility is impossible to the parties, since the norms about it are imperative. On the contrary, the rules on contractual liability, as a rule, are dispositive and, accordingly, may vary by agreement.
Delicious responsibility when performing a violation by several persons is a solidarity, with a negotiable share.
Delicate responsibility is more stronger compared to the contractual. It comes even in cases where the actions of the person who suffered damage, there is wines in the form of negligence (the harm caused by the intent of the victim is not refundable, see paragraph 1 of Art. 1083 of the Civil Code of the Russian Federation).

If itemies occur, it is important to accurately attribute it to one category or another, as this will significantly affect the subject and volume of proof in court (see the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of 06/18/2013 No. 1399/13).

Delicious legal relations with the participation of organizations

Delicious responsibility may arise from a legal entity for the actions of his employees.

The organization may be a violator or only a person on which, according to the law, the duty is responsible to compensate for the harm caused by the violator.

Cases of delicate responsibility organizations are diverse. It may arise as a result, for example, non-security of security or due to the improper performance of responsibilities assigned to the Company.

Art. 1068 of the Russian Federation provides that if the damage to a third party is caused by the actions of the employee of the company or the individual of the employer, then they will be obliged to compensate for this damage. However, so that the employer has such responsibility, the fact is played by a significant role, performed by an employee who has committed a violation, his work responsibilities or acted in some other interests. In the latter case, bring to justice the company will not work.

IMPORTANT! Delicious responsibility may arise not only in legal entities and individuals employers, but also from companies and citizens who have entered into a civil contract with an injury.

Thus, delicate legal relations are an independent type of civil-legal relations arising from offenses with the conditions described above. It is worth noting that the liability for damage caused under certain contractual relations is also reimbursed by the rules governing a delicate responsibility (for example, Article 580, 800, 988 of the Civil Code of the Russian Federation). From this we can conclude that the delicate responsibility to greater extent allows to ensure the protection of the interests of the person who caused harm. Additional information on this topic can be found in the article.

The question of the ratio of delicate and contractual liability is of great importance not only to determine the scope of use of each of them, but also to clarify the contents and features of both types of civil liability.

Contractual and delicate responsibility have a number of common features. Their similarity is predetermined by the fact that by establishing the same responsibility, the overall task of protecting the rights of citizens and legal entities, ensuring the legality and law enforcement in society. The similarity is manifested in common responsibility for these types of principles and concepts, in some cases in the same legal regulation of relations (terms of responsibility, the basis of liberation from responsibility, etc.).

At the same time, the delicate responsibility has certain features. The differences between the contractual and delicate responsibility are socio-economic factors. Contractual liability is intended to ensure the normal course of production and exchange, stimulating accuracy and clarity in relations regulated by the right. Delicious liability is aimed at creating economic equilibrium in cases of violation of the subjective rights of citizens and legal entities. Various socio-economic conditionality of contractual and delicate responsibility predetermines the differences in legal facts that generate these types of responsibility. Contractual liability is based on a relative legal relationship that exists between the debtor and the lender. It is always responsibility to a controlled participant of the already existing obligational legal relationship. On the contrary, delicate responsibility is not preceded by any duty of a particular person. It is based on the fact of a perfect disturbed action encroaching on absolute rights: the life and health of citizens, ownership.

That is why the delicate responsibility is established before any person, the negotiable - only before the party in the contract.

Tasks facing each of these types of responsibility determine the nature of the legal norms established for appropriate cases.

Norms regulating contractual liability are predominantly disposed; Norms that establish responsibility for Delic - imperative. Obligations from harm caused commitments from the law, and therefore cannot be subjected to any changes in the contractual manner. In contractual relationship terms of responsibility, its foundations and limits are usually established by the Agreement of the Parties.

The list of conditions, in the presence of which is responsible for violating the contract and causing harm, the same. However, the combination of these conditions and the interpretation of their content do not always coincide. Contractual liability is established in the absence of losses from the lender. In this case, it can be expressed in the payment of penalties (penalty, fine). At the same time, harm is an indispensable condition for deliberate responsibility. In the absence of harm, the question is not put on it.

Anti-viability is widely interpreted in the area of \u200b\u200brelations arising from the contract. Within the framework of the agreement, the unlawful violation of not only legal norms, as is characteristic of deliquets, but also of any actual, non-contrary to the law, agreements of the parties.

Responsibility for the actions of third parties is provided for both the rules on the contracts (Article 403 of the Civil Code of the Russian Federation) and the Deliches (Art. Art. 1073, 1074,1076 of the Civil Code of the Russian Federation). But if the contractual liability in front of the lender comes for the guilty effect of a third party and in the absence of the guilt of the debtor, then the responsibility for a third party delic is established only if there is guilt in the actions of the subject of responsibility. This distinction between the contractual and delicate responsibility is due to the fact that in obligations from the contract the creditor in is always associated with a certain debtor, who either must fulfill the obligation, or when placing this duty at the third party, is responsible for the actions of the latter.

From the position of the relationship of the debtor and the lender in the relative legal relationship, the parents (adoptive parents), trustees, who gave consent to the conclusion of a contract with a minor person who has reached the 14th - summer age (Article 26 of the Civil Code of the Russian Federation), for non-fulfillment or improper performance of this contract with minors Do not respond. The consent (written) of these persons gives the contract of the minor necessary to him the legitimacy, but does not serve as the basis for attracting parents or persons replacing them, responsibility under the contract.

"The Agreement establishes the relationship between persons who have entered into. The legal relationship between the damage caused and the victims is established by the fact of causing the harm" BELYAKOV A.M. Civil liability for causing harm. M. 1987, p.27.

The principle of complete compensation of harm reflecting the beginning of the equivalence of civil-legal property relations caused by the use of inventory-cash form, both in contractual and delicate relations (Article 393 of the Civil Code and Art. Art. 1064, 1082 of the Civil Code of the Russian Federation).

At the same time, this principle is implemented unequal in these cases. In contractual relations, in particular, it is permissible to exude the size of the responsibility on the loss incurred by the lender (when the penalty is more than the amount of damages and is not reduced in accordance with Art. 333 of the Civil Code of the Russian Federation).

Changing the size of the responsibility may be subject to the agreement of the parties in the contract. Parties may provide responsibility for execution and such duties for which the liability of law is not provided.

Introduced harm is reimbursed in the amount of its cause. Exceptions from this rule are permissible only on the direct indication of the law (Art. 1083 of the Civil Code of the Russian Federation - accounting of the victim's guilt).

The fulfillment of the obligation from the Treaty in Nature provides a normal course of economic activity. In this regard, legal remedies have been developed, forcing debtors really fully fulfill the obligation. They may be provided for by the Agreement of the Parties. No, however, the right methods ensuring indemnity in nature harm caused by a deliket.

In accordance with Art. 1082 Civil Code of the Russian Federation Choosing a method of compensation for harm is provided by the law enforcement agency (court, arbitration court), although the interest of the victim would be guarded with greater efficiency if such a choice was granted to the victim.

This would correspond to the principle of dispositionability in the civil procedure, according to which the subject of the claim is determined by the plaintiff, and not the law enforcement body.

The law (Art. 1083 of the Civil Code of the Russian Federation) allows for the possibility of reducing the amount of damage caused by the citizen, depending on its property. Such a rule is not provided for by the norms on contracts. This is explained by the fact that the debtor in the obligation from the contract expects its economic opportunities in advance, it is planning activities.

Failure to fulfill the contract, unless it is caused by the circumstances that do not depend on the debtor cannot be unexpected for him.

On the contrary, for a citizen who caused harm, its size may not only be unexpected, but also inappropriate to its economic possibilities, and therefore extremely burdensome. Tarakhov V.A. Responsibility for the Soviet civil law. Saratov, 1973, p.23.

Responsibility for violation of the obligation from the Treaty with multiplicity of persons on the side of the debtor is assumed to be expected due to the fact that from the moment the obligations occurred the coincidences determine their participation in it. The responsibility of harm concerns is solidarized (Art. 1080 of the Civil Code of the Russian Federation). Debtors-Rangered Harm enters into legal relations with the victim (creditor) only from the moment of harm caused. Until this time, no relationship between these persons exists. Taking into account the interests of the victim, he is given the right to choose a debtor (defendant).

In the delicate and contractual obligations in different ways the fault of the victim (creditor) is taken into account. If in the first case on the amount of damage compensation, only coarse negligence of the victim (Article 1083 of the Civil Code of the Russian Federation) is influenced (Article 1083 of the Civil Code of the Russian Federation), then in the second, any lender fault (Article 404 of the Civil Code of the Russian Federation) is taken into account. Due to the fact that the lender is associated with the debtor by the agreement, it expects to fulfill the last commitment and organizes its activities accordingly.

Therefore, the amount of damages caused to him by the debtor has influence any degree of his own guilt.

The causing of harm is to the victim in a delicate commitment as a surprise, as a result of which only his coarse negligence is taken into account.

The responsibility of the debtor in the obligation from the contract in the presence of the guilt of the lender can only be reduced (Art. 404 of the Civil Code of the Russian Federation), while in the Delicious Committee not only decrease, but also the addition of responsibility from the debtor (Article 1083 of the Civil Code of the Russian Federation). In art. 404 of the Civil Code of the Russian Federation provides for the right of court to reduce the responsibility of the debtor, if the lender is intentionally or by negligence contributed to the increase in the amount of damages caused by failure or improper performance, or did not accept reasonable measures to reduce them. This rule is designed for relations arising from the contract. At the same time, it should be applied to cases of responsibility for causing harm. The behavior of the victim, when he can reduce the amount of damage caused to him, but does not make it, should not be ignored by the right.