Grounds for the right to compensation for moral damage in the Russian Federation
While a person suffers in many cases, including as a result of the misconduct of others, this does not mean that he or she is always entitled to compensation for moral harm. This right arises in the presence of the conditions provided by law or grounds of responsibility for causing moral harm Maleyin, N.S. On moral harm // The State and Law No. 3.-2002.-No. 3.-C.33. The obligation to compensate for moral damage arises if any:
1) suffering, i.e. moral harm as a consequence of violation of personal non-property rights or encroachment on other non-material benefits;
2) an illegal action (inaction) of the cause of harm;
3) causal connection between an illegal action and moral damage;
4) guilt of the cause of harm.
Availability of moral harm presupposes negative changes in a person's mental sphere, expressed in the latter's undergoing physical and moral suffering. One of the most important features of moral harm is that these negative changes occur in the consciousness of the victim, and the form of their expression depends largely on the peculiarities of the psyche of the victim. For example, tears are one of the most common reactions to the infliction of pain or resentment, but this can only be indirect proof of the infliction of moral harm. In our view, the principle of presumption of moral harm by wrongful acts should be applied and it should be assumed that the victim suffers unless the offender proves otherwise. This significantly simplifies the position of the victim and, at the same time, the offender may rebut this presumption.
At present, the application of the principle of presumption of moral harm does not follow directly from the Russian legislation. The general rule on the distribution of the burden of proof, established in paragraph 1 of Article 56 of the CCP, provides that each party must prove the circumstances to which it refers as the basis of its claims and objections. Since civil law does not establish any special rules for proving the fact of infliction of harm, as opposed to proving guilt, the principle of Article 56 of the CCP must be fully applied, and from this point of view the victim would have to prove the fact of inflicting moral harm in order for the court to decide the issue of compensation in his favor, but a review of the practice of Russian courts shows the opposite. The courts actually apply a presumption of moral harm: having established that an unlawful act has been committed, the courts assume that the moral harm has been caused and then consider the question of the amount of his compensation in monetary form. This practice, even in the current state of Russian law, is not devoid of legal grounds. In accordance with Article 55 of the Civil Procedure Code, the means of proof in civil proceedings are: explanations of the parties and third parties, testimony of witnesses, written evidence, physical evidence, and expert opinions. Therefore, the plaintiff's statement that he suffered physical or moral suffering is a direct evidence of the fact that moral harm has been caused, and the assessment of this evidence is the prerogative of the court. Naturally, the defendant cannot provide direct evidence to the contrary. Testimony from witnesses and expert opinion can only be indirect evidence of moral harm. Note that the appointment of an expert to establish the fact of inflicting moral harm is found in some cases of disputes on his compensation Erdelevsky, A.M. Moral harm and compensation for suffering. SEE, 2004.-P.40-56.
The Plenum of the Supreme Court of the Russian Federation in its resolution No. 10 of December 20, 1994 determined the subject of proof in disputes related to compensation for moral harm, indicating that "it is also necessary for the court to find out how the fact of inflicting moral or physical suffering on the victim is confirmed, under what circumstances and by what actions they are inflicted, the degree of guilt of the inflicting harm, what moral or physical suffering has been suffered by the victim, in what amount or other material form he assesses their compensation and other circumstances relevant".
The actual derogation of non-material benefits as a consequence of the offender's illegal action is not a necessary condition for the emergence of the victim's right to compensation for moral harm. It is enough that the offender's actions create a real threat of derogation of the intangible good, "encroaching" on it. Such a conclusion follows from Article 151 of the Civil Code, where the actions encroaching on other non-material benefits belonging to a citizen are indicated as the basis of the right to compensation of moral harm.
