Court decisions on moral damage to legal entities. Recovery of moral damage from a legal entity
Application of the Institute of Compensation for Moral Damage in judicial practice raises the question of who exactly moral harm can be caused. From the definition of non-pecuniary damage given in Art. 151 of the Civil Code of the Russian Federation, and the conditions for its compensation, it can be concluded that, it can only be caused to an individual. It seems that physical or moral suffering cannot be caused to a legal entity.
However, in Art. 152 of the Civil Code of the Russian Federation, which provides for the protection of the honor, dignity, and business reputation of a citizen, it is said that the rules on the protection of business reputation, respectively, apply to the protection of the business reputation of a legal entity. And among these rules - and compensation for moral harm. Based on these provisions, the Plenum of the Supreme Court of the Russian Federation in its resolution of December 20, 1994 No. 10 in paragraph 5 clarified that the rules governing compensation for moral damage in connection with the dissemination of information discrediting the business reputation of a citizen are also applied to legal faces.
But their application will be in clear contradiction with the concept of non-pecuniary damage contained in Part 1 of Art. 151 of the Civil Code of the Russian Federation. In addition, even if we agree that this is also possible in relation to a legal entity, then the calculation of the amount of compensation in accordance with Part 2 of Art. 151 of the Civil Code of the Russian Federation can be made solely on the basis of the degree of physical and moral suffering that only a person can endure. This means that the very concept of moral damage is incompatible with the construction of a legal entity.
Thus, in paragraph 5 of the resolution of the Plenum of the Supreme Court of the Russian Federation, it should be written that moral harm can only be caused and compensated for by a citizen, and in the legislation - to designate the possibility of compensating for damages caused to the business reputation of a legal entity as compensation for non-property damage caused to the business reputation of a legal entity, but not moral damage.
Compensation for moral damage is a new legal institution for Russian legislation, the imperfection of which leads to the emergence of all sorts of contradictions in the interpretation of this problem by domestic and foreign lawyers. Practice for the protection of non-property rights individuals relatively well-established and implemented through compensation for moral damage caused by unlawful actions. The legislation regulating this area is universally recognized and widespread in many countries of the world.
For example, in Art. 847 of the German Civil Code, physical and moral suffering is recognized as harm. The concept of "non-pecuniary damage" is also elaborated in French civil law and is defined as the suffering caused by the derogation of protected benefits (arts. 9, 1382 and 1388 Civil Code France). In the Anglo-Saxon system of law, the concept of "mental harm" is used, which in principle corresponds to the concept of "moral harm", but at the same time has a differentiation depending on the strength of the victim's nervous shock. In England and the USA it is customary to distinguish between "ordinary shock" and "nervous shock". To recognize mental harm as a nervous shock, it must be expressed in a recognizable, diagnosable mental disorder, and not in an ordinary shock in the form of negative emotions (fear, sadness, grief, etc.). The latter is characteristic of ordinary shock.
The protection of intangible benefits through compensation payments is carried out for the following reasons: firstly, property, in particular money, is recognized as the universal equivalent of intangible relations; secondly, through these payments, the physical and mental trauma of a person who has suffered from an unlawful act is compensated. That is, for compensation, the mental assessment by the victim of the actions committed against him is of particular importance.
According to Art. 151 of the Civil Code of the Russian Federation, moral harm is "physical and moral suffering" caused by the action or inaction of one person to another. Moral harm affects intangible benefits, owned by a citizen from birth or by virtue of law (life, health, dignity, business reputation, privacy, personal and family secrets, etc.). Moral harm can be expressed in moral feelings caused, for example, by the death of relatives, physical suffering, such as the inability to continue an active social life, in the loss of a job, dissemination of information against a person that discredits honor, dignity, business reputation. Domestic legislation provides that in the event of the dissemination of information that discredits business reputation, a citizen has the right, in addition to refuting this information, to demand judicial order: a) compensation for losses and b) compensation for moral damage caused by the dissemination of information discrediting honor, dignity or business reputation (clause 5 of article 152 of the Civil Code of the Russian Federation). Compensation for moral damage is not identical to property liability, since the purpose of compensation is not to compensate for the monetary losses of the victim, but to compensate for the damage caused by moral damage.
By virtue of paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, the business reputation of a legal entity is protected according to the same rules as the business reputation of a citizen (clause 5, article 152). This norm makes it possible to assume that the legislator has recognized the possibility of applying the rule of paragraph 5 of Art. 152 of the Civil Code of the Russian Federation regarding the protection of business reputation to the protection of the business reputation of a legal entity. The extension of this rule to the protection of business reputation is permissible only taking into account the "features of these subjects" (ie legal entities).
However, when it comes to the possibility of compensation for moral damage to legal entities, misunderstandings and disputes arise. The use in the structure of paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, the adverb "respectively", meaning "in an equal measure", "equally", in fact, provides for the right of a legal entity to compensation for moral damage. However, according to the definition of non-pecuniary damage contained in Art. 151 of the Civil Code of the Russian Federation, the right to compensation for physical or moral suffering is reserved only for a citizen, since only he, by virtue of his nature, having a physical body, can experience pain, which cannot be said about legal entities. And in the domestic legal literature, various opinions on this matter have been repeatedly expressed. Supporters of the recognition of the possibility of compensation for moral damage to legal entities are accused of anthropomorphism (humanization) of an artificially created institution, such as a legal entity.
It is worth noting that none of the articles of the Civil Code of the Russian Federation establishing the grounds and amount of compensation for moral damage (Articles 151, 152 1099, 1100, 1101) directly excludes the possibility of compensation for moral damage to a legal entity. Initially, the problem of protecting the intangible rights of legal entities arose with the adoption of the Fundamentals of Civil Legislation USSR and republics (hereinafter - the Fundamentals). In paragraph 6 of Art. 7 of the Fundamentals, it was established that "a citizen or legal entity in respect of which information is disseminated that discredits his honor, dignity or business reputation, has the right, along with the refutation of such information, to demand compensation for losses and moral damage caused by their dissemination." The analysis of this article allows us to conclude that a legal entity, along with an individual, has the right to demand compensation for moral damage.
Probably, based on the above provisions, the Plenum of the Supreme Court of the Russian Federation expressed an opinion on the admissibility of compensation for moral damage legal entity. In paragraph 5 of the resolution of December 20, 1994 N 10, in particular, it says the following: "The rules governing compensation for moral damage in connection with the dissemination of information discrediting the business reputation of a citizen are also applied in cases of dissemination of such information in relation to a legal entity" .
However, the practice of arbitration courts took a different path. The decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 1, 1998 N 813/98 states: "in accordance with Article 151 of the Civil Code of the Russian Federation, moral harm is understood as physical or moral suffering caused to a citizen by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to a citizen. The amount of compensation for moral damage is determined taking into account the degree of physical or moral suffering associated with the individual characteristics of the person who was harmed. Since a legal entity cannot experience physical or moral suffering, it is impossible to inflict moral harm on him. "
As a result of such opposite interpretations, the law enforcement practice of the courts general jurisdiction and arbitration courts often disagree on the possibility of compensation for moral damage due to the derogation of the business reputation of a legal entity. A paradoxical situation has arisen: legal entities "suffer" in courts of general jurisdiction, receiving compensation for their "suffering", but at the same time they do not experience "suffering" in arbitration courts. Such a situation, in the opinion of the Constitutional Court of the Russian Federation, leads to the arbitrariness of the application legal regulations, which is a violation of the constitutionally recognized equality of all before the law and the courts.
Appeal to practice European Court of Justice on human rights will allow a new understanding of the concepts known in the Russian legal doctrine related to the protection of property rights and other non-material benefits, in particular, this concerns the possibility of compensation for non-material damage to such subjects of legal relations as legal entities. First of all, it is important to note that when compensating for damage caused by a violation of personal non-property rights, the European Court of Human Rights substantiates its positions with the provisions of Art. 41 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states: “If the Court declares that there has been a violation of the provisions of the Convention or its Protocols, and the internal law of the High Contracting Party allows only partial reparation, the Court, if necessary, awards just satisfaction injured party."
As a general rule, the application of Art. 41 of the European Convention, it became possible even if it was necessary to compensate the injured party for moral damage, which was understood by the Court in the meaning assigned to this concept in the legislative and judicial practice of the member states of the Council of Europe.
An analysis of the practice of the European Court of Human Rights in relation to compensation for moral damage to a legal entity allows us to conclude that the European Court has been expressing an ambivalent position on this issue for quite a long time.
In the business company Immobiliare Saffi v. Italy, the Court did not consider it necessary, in the circumstances of the case, to dwell on the question of whether the company could claim non-pecuniary damage based on any feeling of fear. Nevertheless, it is noted that such a position in no way implies that it is necessary in all cases to evade the possibility of compensation for non-pecuniary damage referred to by legal entities - it all depends on the specific circumstances of the case. Thus, for example, in the case “Association of Democratic Soldiers of Austria and GUBI v. Austria”, the Court found that the first applicant (association) could prove non-pecuniary damage due to a violation of Art. 10 and 13 of the European Convention. Moreover, in the case “Freedom and Democracy Party (Ozdep) v. Turkey”, the Court ruled to compensate the applicant for non-pecuniary damage caused by the feeling of dissatisfaction (disappointment) among the members of the party and its founders as a result of the violation of Art. 11 of the European Convention.
In Comingersol S.A. v. Portugal, the European Court of Human Rights held that, given the case law of the Court and in the light of that practice, it cannot be ruled out that a business partnership may suffer damage other than pecuniary damage requiring monetary compensation.
It must also be recalled that the Convention must be interpreted and applied in such a way as to guarantee the exercise of specific and valid rights. Since the main form of redress that the Court can provide is pecuniary compensation, the effectiveness of the right guaranteed by Art. 6 of the Convention requires that pecuniary compensation may also be granted for non-pecuniary damage suffered, among other things, by the partnership.
Damage to such a partnership, other than property, may in fact include more or less "objective" and "subjective" components. Among these components, it is necessary to single out business reputation, as well as uncertainty in planning decisions, violations in the management of the enterprise itself, the consequences of which cannot be accurately calculated, and, finally, although to a lesser extent, the fear and trouble experienced by members of the management bodies of the partnership.
Thus, we see that the conclusions of the European Court in the case of "Comingersol v. Portugal" actually mean that the injured party in the case of compensation for moral damage can be both an individual and a legal entity. Moreover, it should be noted that the European Convention proceeds not from the principle of full compensation for damages, but from the principle of the maximum possible restoration of the situation that existed before the violation of the right. Among the circumstances that the European Court takes into account when considering the issue of awarding compensation under Art. 41 of the European Convention, there are such aspects as: 1) material losses, i.e. actual damages incurred as a direct result of the alleged violation of a fundamental right; and 2) non-pecuniary damages, ie. compensation for the trouble, uncertainty and inconvenience caused by the violation, and other non-pecuniary damage.
Such an approach of the European Court of Human Rights to this problem could not but influence the positions of national law enforcement authorities. The decision in the case "Komingersol against Portugal" was used in the Ruling of the Constitutional Court of the Russian Federation of December 4, 2003 on the complaint of citizen V.A. Shlafman. for violation constitutional rights the provisions of paragraph 7 of Art. 152 of the Civil Code of the Russian Federation. However, the reference to the case "Comingersol v. Portugal" is an argument from the category of "similar case", but with a high degree of conventionality. Since in the case considered by the European Court, we are talking about the application of Art. 41 of the European Convention, namely, fair compensation can be considered as an international legal sanction of a property nature imposed on the state for violating the rights of others. That is, in this case, only the state is the defendant. The reference to the decision of the European Court was of interest to the Constitutional Court of the Russian Federation in that part where the European Court came to the conclusion that both an individual and a legal entity can be the injured party in the case of compensation for moral damage.
Citizen Shlafman V.A. appealed to the Constitutional Court of the Russian Federation with a complaint and asked to check the constitutionality of the provisions of paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, which provide that the rules on protecting the business reputation of citizens are accordingly applied to the protection of the business reputation of a legal entity in the meaning given to them by the official interpretation contained in the resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10 "Some issues of application of legislation on compensation for non-pecuniary damage" (p. 5) and law enforcement practice. By the decision of the Sverdlovsk District Court of Irkutsk, a citizen Shlafman V.A. compensation for non-pecuniary damage was collected in favor of the municipal unitary enterprise "Vodokanal", as at a meeting of the emergency commission on non-payments of the city administration in the presence of heads of enterprises and officials Administration of the city of Irkutsk, the defendant stated that in order to conclude and sign an agreement for the supply of water and the receipt of wastewater, he had to bribe the employees of MUP Vodokanal. The court acknowledged that the defendant disseminated information about the employees of MUP "Vodokanal" that discredited the business reputation of the enterprise. Judicial board for civil affairs The Irkutsk Regional Court upheld this decision, explaining in its ruling that, in accordance with paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, the rules of this article (including clause 5, which provides for compensation for moral damage) also apply to the protection of the business reputation of a legal entity. Subsequent supervisory appeals considered by the Chairman of the Irkutsk Regional Court and the Supreme Court of the Russian Federation were not satisfied. At the same time, the Supreme Court of the Russian Federation indicated that, in accordance with clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10, the rules governing compensation for moral damage in connection with the dissemination of information discrediting the business reputation of a citizen are also applied in cases of dissemination of such information in regarding a legal entity. The Constitutional Court of the Russian Federation in this case determined that “it is precisely in accordance with the nature of a legal entity that the applicability to the protection of its business reputation of one or another method of protecting violated civil rights. The indication in Art. 151 of the Civil Code of the Russian Federation that moral harm is moral or physical suffering caused to a citizen, indicates that the legislator proceeds from a differentiated approach to regulating relations regarding compensation for moral harm, depending on which subject - a citizen, legal entity, public education - caused the corresponding harm. At the same time, the legislator also proceeds from the lack of identification of citizens and legal entities, and adequately builds legal regulation relations regarding compensation for moral damages. Because the legal nature organizations as legal entities does not imply that they suffer physical or moral suffering as a result of the dissemination of information discrediting their business reputation, compensation for just such moral harm to a legal entity contradicts the very essence this method protection of violated civil rights".
The expression "... compensation for just such moral damage to a legal entity contradicts the very essence of this method of protecting violated civil rights" should be given special attention. In essence, the entire dispute rests on the terminology and semantic load of the given definitions.
The clarification of the Plenum of the Supreme Court of the Russian Federation, of course, is not consistent with the definition of moral harm contained in the Civil Code of the Russian Federation as physical and moral suffering, which only a living person is capable of experiencing. But there is no doubt that the business reputation of a legal entity is often harmed, not associated with direct losses. In this regard, the European Court noted the following: “Among the elements taken into account by the Court in deciding the case are property damage, i.e. real losses that were a direct consequence of the alleged violation, and non-pecuniary damage, i.e. a state of anxiety, anxiety and uncertainty resulting from this violation, as well as other non-pecuniary damages".
So, given that the business reputation of a legal entity is an intangible benefit, the harm caused is not always directly related to the direct losses of the legal entity, on the contrary, this harm by its nature cannot have a monetary expression. Opinions are expressed in the legal literature about the insufficiency of only refutation of information and compensation for losses, since this will not provide compensation for all types of harm (Article 152 of the Civil Code of the Russian Federation).
In essence, we are only talking about the inadmissibility of using the term "moral harm" in relation to a legal entity due to its nature, the inability to endure physical suffering. It seems that in this situation it is advisable to establish for a legal entity the right to monetary compensation for non-material harm caused by the introduction of a new legal institution special for a legal entity "compensation for other non-material harm caused to the business reputation of a legal entity". The very "essence of legal relations" (clause 3, article 23 of the Civil Code of the Russian Federation), arising from an infringement on the business reputation of a legal entity, as well as "features of these entities" (clause 2, article 124 of the Civil Code of the Russian Federation), i.e. legal entities as subjects of civil law cannot exclude the possibility of recovery in case of dissemination of false, discrediting information, other non-material harm.
The legislator recognizes the possibility of legal entities to acquire and exercise personal non-property rights (Article 48 of the Civil Code of the Russian Federation), therefore, the possibility of protecting these rights in case of their violation should also be recognized. Otherwise, a kind of contradiction arises: the right exists, but the possibility of protecting this right is not provided. Moreover, the denial of the possibility of compensating legal entities for other non-material harm would violate the principle of equality of participants in civil legal relations (clause 1, article 1 of the Civil Code of the Russian Federation).
"Physical and moral suffering", referred to in Art. 151 of the Civil Code of the Russian Federation, are the consequences of actions that violate the intangible rights of citizens. But at the same time, it should be noted that the law does not name and does not exclude the occurrence of any consequences of similar actions in relation to legal entities. Moreover, in civil legislation there are such institutions as analogy of law and analogy of law (Article 6 of the Civil Code of the Russian Federation). It seems that in this situation such institutions are fully applied. Even if there is no direct indication of the law on the possibility of compensation for moral damage (read other non-pecuniary damage) of legal entities, the rules governing similar relations with the participation of citizens should be applied.
The legal literature emphasizes that participation in market relations is typical for legal entities, and this is what determines the competitiveness and competition of legal entities. Factors that reduce the competitiveness of legal entities impede free entrepreneurial activity, thereby causing non-material harm. The narrowness in understanding the protection of non-property rights hinders the ability to fully defend the violated rights of business entities.
According to social psychology, an organization (legal entity) is a system that has specific parameters of existence (functioning) and development trends. And if in relation to an individual the categories “moral or moral suffering”, “impairment of health” or “violation of normal life ties” are used, then a legal entity has very specific goals, objectives, structure, organizational climate, strategic planning, processes and management traditions , business connections, etc.
The ruling of the Constitutional Court of the Russian Federation of December 4, 2003, mentioned earlier, consecrates precisely this approach to this problem: we are talking about the possibility of recovering "other harm" that is not a loss caused to a legal entity as a result of the dissemination of information discrediting the business reputation of a legal entity, nor moral harm, which can only be caused to individuals. This definition contains an important conclusion: despite the fact that "the legal nature of organizations as legal entities does not imply that they suffer physical or moral suffering as a result of the dissemination of information discrediting their business reputation, ... compensation for just such moral harm to a legal entity contradicts the very essence of this method of protection violated civil rights, ... the above provisions should not be interpreted in such a way that compensation for moral damage as a type of non-material harm is generally impossible or unacceptable in relation to legal entities. on compensation for moral (non-material) harm, which has its own content (different from the content of moral harm caused to a citizen), which follows from the essence of the violated non-material right and the nature of the consequences of this violation. 2 tbsp. 150 of the Civil Code of the Russian Federation). "
Thus, after analyzing the above-mentioned definition of the constitutional court, we can conclude that "compensation to a legal entity for moral harm as a type of non-material harm, entailing non-material losses and not coinciding in its content with an outwardly similar category applied to citizens, can be classified as such methods of protecting violated civil rights, which are directly civil law are not provided for, but are not classified as prohibited by law either.
When defining the concept of "other non-material harm" (and not losses, as indicated in the definition of the Constitutional Court of the Russian Federation), it seems possible to focus on the approach to this problem of the European Court in the previously mentioned case "Comingersol v. Portugal". Namely, in such a situation, it is advisable to find out whether the disseminated information affected the reputation of the legal entity, whether it led to the emergence of uncertainty in decision-making that is undesirable for doing business, and, finally, whether this information caused concern and inconvenience to the company's management.
Thus, "other non-material harm" caused to the business reputation of a legal entity is expressed in deep violations of organizational activity in general, violation of the most important parameters of the organizational climate, destruction of the strategic planning of the enterprise, and the emergence of obstacles to development.
It is also important to note that "other non-material harm" is beyond the losses incurred by a legal entity as a result of the dissemination of information discrediting business reputation. In particular, these losses may manifest themselves in the loss of a permanent clientele (and this, in turn, will be a derogation of the property of a legal entity, i.e. "actually incurred losses").
The difference between losses and other non-material harm caused to a legal entity as a result of the dissemination of information discrediting business reputation is, according to the European Court, that the former are of an “objective” nature, since they are easier to prove in fact, and the second is of a “subjective” nature , since it is more connected with the characteristics of a particular legal entity as a result of an offense committed against it.
Chapter III. Compensation for moral damage in case of violation of property and personal non-property rights
According to the literal interpretation of the content of Article 151 of the Civil Code of the Russian Federation, compensation for moral damage is possible only in relation to citizens. The issue of compensation for moral damage to legal entities causes a lot of controversy among civilists. The basis of doubt is the opinion that he cannot endure physical and moral suffering.
IN this case We are talking about non-property goods associated with property. Since when harming the business reputation of a legal entity, in addition to violating its intangible benefit, as a rule, damage is also done to its property benefits. This is due to the fact that damage to the business reputation of an organization often leads to the loss of customers, partners, and, as a result, losses and lost profits. The issue of compensation for property damage is beyond doubt, but the issue of compensation for moral damage to a legal entity causes conflicting opinions.
Paragraph 7 of Article 152 of the Civil Code of the Russian Federation states that the rules established by this article to protect the business reputation of citizens apply to legal entities. And in paragraph 5 of Article 152 of the Civil Code of the Russian Federation it is said that a citizen in respect of whom information discrediting business reputation has been disseminated has the right, together with the requirement to refute such information, to demand compensation for losses and compensation for moral damage. Therefore, legal entities have the same rights.
The Supreme Arbitration Court of the Russian Federation is of the opinion that even the concept of non-pecuniary damage cannot be applied to legal entities, and accordingly it is impossible to satisfy claims for compensation. This position of the Supreme Arbitration Court of the Russian Federation is reflected in judicial practice:
“In accordance with Article 151 of the Civil Code of the Russian Federation, moral harm is understood as physical or moral suffering inflicted on a citizen by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen. The amount of compensation for moral damage is determined taking into account the degree of physical and moral suffering associated with the individual characteristics of the person who was harmed.
Since a legal entity cannot experience physical or moral suffering, it is impossible to inflict moral harm on it.
Therefore, based on the meaning of Articles 151 and 152 of the Civil Code of the Russian Federation, the right to compensation for non-pecuniary damage is granted only to an individual"(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 1, 1998 No. 813/98).
“When considering the issue of compensation to the plaintiff for moral damage, the court of first instance did not take into account the requirements of Article 151 of the Civil Code of the Russian Federation, according to which compensation for moral damage (physical or moral suffering) is carried out in relation to a citizen, and not a legal entity”(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 24, 1998 No. 1785/95).
“Based on the meaning of Article 151 of the Civil Code of the Russian Federation, moral harm (physical and moral suffering) can only be caused to a citizen, but not to a legal entity. Therefore, the claim regarding the claim for the recovery of compensation for moral damage is not subject to consideration in the arbitration court due to lack of jurisdiction, and the proceedings in this part are subject to termination.(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 5, 1997 No. 1509/97).
However, this issue was resolved differently. judicial practice of the Supreme Court, according to paragraph 5 of the Decree of the Plenum Supreme Court Russian Federation No. 10 of the rules governing compensation for moral damage in connection with the dissemination of information discrediting the business reputation of a citizen, are applied in cases of dissemination of such information about a legal entity.
A similar explanation can be seen in the Decree of the Plenum of the Supreme Court of the Russian Federation dated February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities” in the part related to the business reputation of legal entities.
Regarding this issue, you can also consider the Ruling of the Constitutional Court of the Russian Federation of December 4, 2003 No. 508-O “On the refusal to accept for consideration the complaint of citizen Shlafman Vladimir Arkadevich about the violation of his constitutional rights by paragraph 7 of Article 152 of the Civil Code of the Russian Federation”. Interpreting the norms of law, the Constitutional Court says the following:
“Article 152 of the Civil Code of the Russian Federation grants a citizen in respect of whom information is disseminated discrediting his honor, dignity or business reputation, the right, along with the refutation of such information, to demand compensation for losses and moral damage caused by their dissemination (paragraph 5). This rule in the part relating to the protection of the business reputation of a citizen, it accordingly applies to the protection of the business reputation of legal entities (paragraph 7 of Article 152 of the Civil Code of the Russian Federation).
The applicability of a particular method of protecting violated civil rights to protecting the business reputation of legal entities should be determined based on the nature of the legal entity. At the same time, the absence of a direct indication in the law of the method of protecting the business reputation of legal entities does not deprive them of the right to make claims for compensation for losses, including intangible damage caused by the loss of business reputation, or intangible harm that has its own content (other than the content of moral damage caused by citizen), which follows from the essence of the violated intangible right and the nature of the consequences of this violation (paragraph 2 of Article 150 of the Civil Code of the Russian Federation). This conclusion is based on the provision of Article 45 (part 2) of the Constitution of the Russian Federation, according to which everyone has the right to protect their rights and freedoms by all means not prohibited by law.”
As follows from the definition, the Constitutional Court of the Russian Federation also considers the concept of non-pecuniary damage to a legal entity to be inapplicable. Accordingly, the interpretation of the Supreme Court of the Russian Federation is erroneous. This is especially important, since the judgments of the Constitutional Court of the Russian Federation, as a rule, in most cases are accepted by all courts. Although this definition does not legal consequences, except for the impossibility of considering the complaint on the merits, but it expresses the position of the court, whose authority is undeniable.
I would like to draw attention to one more judgment expressed in this definition. It contains the concept of "non-material losses", which does not exist in the Civil Code of the Russian Federation. Analyzing the justifications given in the definition, we can say about a certain combination of the concepts of damages and compensation for moral harm. Both of these concepts act as a means or a way to protect violated rights, and there is no purpose left for the concept given in the definition of the Constitutional Court of the Russian Federation.
Based on the above arguments, it can be concluded that the institution of compensation for moral damage does not apply to legal entities, this is confirmed by judicial practice, in the analysis of which the author of the book did not find a single example of satisfying the claims of a legal entity for compensation for moral damage.
The conclusions can be illustrated with examples of judicial practice on this issue.
The recovery of non-pecuniary damage was denied on the grounds that the peasant (farm) economy is a legal entity (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 23, 2006 No. 16140/05 in case No. 5-70/04).
The Arbitration Court of First Instance refused to recover compensation for moral damage in the amount of 500,000,000 rubles due to the fact that the plaintiff, as a legal entity, is not subject to paragraphs 5, 7 of Article 152 of the Civil Code of the Russian Federation, which establish the right of citizens to compensation for losses and moral damage caused by the distribution information discrediting his honor, dignity or business reputation (Resolution of the Federal Antimonopoly Service of the East Siberian District of November 1, 1996 in case No. 4/41).
The claim to determine the amount of compensation for non-pecuniary damage was denied due to the fact that a legal entity cannot experience physical and moral suffering (Resolution of the Federal Antimonopoly Service of the West Siberian District of April 3, 2000 in case No. F04 / 842-140 / A70-2000 ).
Compensation for non-pecuniary damage was denied due to the fact that the plaintiff is a legal entity that cannot experience physical or moral suffering, which is subject to compensation in the event of non-pecuniary damage (Resolution of the Federal Antimonopoly Service of the Moscow District of December 16, 2003 in case No. KG-A40 / 10072 -03).
The recovery of 90 million rubles in compensation for non-pecuniary damage was denied with reference to Article 151 of the Civil Code of the Russian Federation due to the fact that this article does not apply in cases of violation of the intangible rights of a legal entity (Resolution of the Federal Antimonopoly Service of the Volga District of April 1, 1998 in case No. A55- 225/97-16).
Legal entities, in accordance with articles 151 of the Civil Code of the Russian Federation, 1099 of the Civil Code of the Russian Federation, are not entitled to compensation for moral damage (Resolution of the Federal Antimonopoly Service of the Volga District of March 31, 2005 in case No. A65-1019 / 2004-SG1-18).
The court pointed out that the Ostrov peasant (farmer) economy, being a legal entity, cannot experience moral and physical suffering, therefore, the claim for compensation for moral damage is not subject to satisfaction (Resolution of the Federal Antimonopoly Service of the North Caucasus District of August 31, 2005 No. F08-3590 /2005 in case No. A32-673/2005-42/11).
Compensation for moral damage was denied, since compensation for moral damage to legal entities is not provided for by law (Resolution of the Federal Antimonopoly Service of the North Caucasus District of August 10, 2005 No. F08-3284 / 2005 in case No. A20-9745 / 2004).
In accordance with Article 151 of the Civil Code of the Russian Federation, moral damage (physical or moral suffering) is subject to compensation to a citizen. A legal entity cannot experience physical or moral suffering. Causing moral damage to employees of a legal entity cannot serve as a basis for compensation for moral damage to the legal entity itself. Since the factory turned to arbitration court for the protection of a right that does not belong to her, the satisfaction of claims for compensation for non-pecuniary damage was also justifiably denied (Resolution of the Federal Antimonopoly Service of the North Caucasus District of July 4, 2002 in case No. F08-1790 / 2002).
As can be seen, the position of the courts on disputes on compensation for moral damage to a legal entity is unified, moral damage cannot be caused to it and, accordingly, cannot be compensated.
Quite often there is a mention of the so-called "compensation for moral harm." It should be noted that such a concept and method of protection are absent in the Civil Code of the Russian Federation; most likely, this is an alternative proposed by scientists for compensation for moral damage in relation to legal entities, which does not have a legal basis.
Possibly to avoid the occurrence controversial situations in law enforcement, it would be more appropriate in paragraph 7 of Article 152 of the Civil Code of the Russian Federation to indicate that the rules established to protect the business reputation of citizens are applicable to protect the business reputation of legal entities, except for the application of the institution of compensation for moral damage.
It is necessary to pay attention to the possibility of the following situation. When damaging the business reputation of a legal entity, the business reputation of certain citizens may be harmed through this. This is due to the fact that the activity of a legal entity consists of the activities or individual actions of citizens who may be employees, management bodies of this entity, or participants in the entity. Message false information, discrediting the reputation of the organization, can damage the business reputation of a citizen who made a transaction on behalf of a legal entity, product information " inadequate quality» released by the organization, can cause damage to citizens directly responsible for the production and quality of products, and so on. In such cases, double harm occurs, that is, harm is simultaneously caused to both the legal entity and individuals.
As already mentioned, citizens have the right to compensation for non-pecuniary damage. In a situation where such harm is caused to a citizen (or citizens) indirectly, through damage caused to the business reputation of a legal entity, it is necessary to prove that it is possible to name specific individuals who, through the dissemination of information discrediting the business reputation of the organization, suffered moral harm. The burden of proving that the dissemination of false information about the organization caused harm to a certain individual, citizen, will lie with the citizen himself.
Note!
In such cases, it is possible to consider claims by different types of courts, as well as to combine cases on claims of a citizen and a legal entity into one proceeding.
Compensation for moral damage to a citizen is governed by the rules established by Article 151 K and paragraph 4 of Chapter 59 of the Civil Code.
For more information on issues related to compensation for moral damage, you can find in the book of the authors of CJSC “BKR-Intercom-Audit” “Compensation for moral damage. Legal regulation. Practice. Documentation".
A. ERDELEVSKY
A. Erdelevsky, Associate Professor of the Department of Civil Law of the Moscow State Law Academy, Candidate of Legal Sciences.
Compensation for moral damage is a new legal institution for Russian legislation, the imperfection of which leads to the emergence of a large number of theoretical and law enforcement problems. One of them is the subject composition of persons who have the right to demand protection of violated civil rights by compensation for moral damage.
Initially, this problem arose in connection with the adoption of the Fundamentals of Civil Legislation of the USSR and the Republics (hereinafter - the Fundamentals). In paragraph 6 of Art. 7 of the Fundamentals, it was established that "a citizen or legal entity in respect of which information is disseminated that discredits his honor, dignity or business reputation, has the right, along with the refutation of such information, to demand compensation for losses and moral damage caused by their dissemination." The grammatical analysis of this norm gave reason to believe that, firstly, the concepts of "honor and dignity" are applicable to legal entities and, secondly, a legal entity has the right to demand compensation for moral damage.
Obviously, it was hardly appropriate to apply the concept of "dignity", that is, the reflection of his qualities in his own consciousness, accompanied by a positive assessment of a person, to a legal entity - an artificial formation that does not have its own consciousness. Since it is typical for a legal entity to participate in business relations, the concept of honor in relation to a legal entity completely coincided with the concept of business reputation as a reflection of the business qualities of persons in the public mind, accompanied by a positive assessment of society, and was, therefore, absolutely redundant.
With the adoption of the first part of the Civil Code of the Russian Federation, this discrepancy was eliminated, since Art. 152 of the Civil Code provides for civil - legal protection only of the business reputation of a legal entity. This norm regulates the protection of the honor, dignity and business reputation of citizens and the business reputation of legal entities, and paragraphs 1 - 6 of Art. 152 of the Civil Code relate to the protection of the honor, dignity and business reputation of a citizen, and paragraph 7 of Art. 152 is a reference norm, according to which "the rules of this article on the protection of the business reputation of a citizen are accordingly applied to the protection of the business reputation of a legal entity."
Moral damage is mentioned in paragraph 5 of Art. 152 of the Code: "A citizen in respect of whom information discrediting his honor, dignity or business reputation has been disseminated, has the right, along with the refutation of such information, to demand compensation for losses and moral damage caused by their dissemination."
Grammar analysis Art. 152 of the Civil Code, as in the case of Art. 7 Fundamentals, gives grounds for the conclusion about the right of a legal entity to demand compensation for moral damage. It should be emphasized that, if we adhere to the exact text of the analyzed norm, we are talking about compensation, and not about compensation for moral harm, although Art. 12 of the Civil Code, which defines the ways of protecting civil rights, points precisely to compensation for moral damage as one of the ways of protection, and Art. 151 and paragraph 4 of Chapter 59 of the Civil Code regulate relations related to compensation for moral damage.
The assumption that the legislator intends to introduce, along with compensation for moral damage, another way to protect civil rights - compensation for moral damage (as one of the other methods of protection in the sense of Article 12 of the Civil Code) to protect honor, dignity and business reputation is not supported by facts: in the Code there are no rules governing compensation for moral damage, and in relation to the protection of honor, dignity and business reputation in Art. 1100 of the Civil Code there is a direct indication of the compensation for moral damage.
Thus, it should be concluded that the legislator's inaccurate formulation of paragraph 5 of Art. 152 of the Civil Code, that is, the legislator had in mind the right of a citizen "to demand compensation for losses and compensation for moral damage." Strictly speaking, it is in this aspect that the law enforcer approaches the noted inaccuracy, but it is advisable for the legislator to eliminate it in the prescribed manner.
Returning to the question of the right of a legal entity to demand compensation for non-pecuniary damage, we note that the Plenum of the Supreme Court of the Russian Federation, apparently based only on a grammatical analysis of the mentioned norms, took the position of the admissibility of such a requirement, pointing out in paragraph 5 of the Decree of December 20, 1994 of the year N 10 the following: "The rules governing compensation for moral damage in connection with the dissemination of information discrediting the business reputation of a citizen are also applied in cases of dissemination of such information in relation to a legal entity (paragraph 6 of Article 7 of the Fundamentals of Civil Legislation of the USSR and the republics on legal relations arising after August 3, 1992, paragraph 7 of Article 152 of the first part of the Civil Code of the Russian Federation on legal relations that arose after January 1, 1995).
However, logical and system analysis allows us to conclude that this approach is incorrect. In the definition given in Art. 151 of the Civil Code, moral damage is understood as "physical and moral suffering". At the same time, Art. 151 of the Civil Code is called "Compensation for moral damage" and regulates compensation for moral damage caused to a citizen. The situation is similar with respect to paragraph 4 "Compensation for non-pecuniary damage" of Chapter 59 of the Civil Code.
The content of these norms certainly suggests that only a citizen can be the subject to moral harm, since a different understanding would make one assume the possibility of a legal entity undergoing physical or moral suffering, which is incompatible with the legal nature of a legal entity as an artificially created subject of law that does not have psyche and not able to experience emotional reactions in the form of suffering and experiences. With equal success, one could talk about injuries to the vehicle in a traffic accident.
The assumption that moral harm in relation to a legal entity is some other category than moral harm in relation to a citizen, that is, the content of such harm is not physical and moral suffering, but something else, also does not stand up to criticism, since in this case we would be confronted with a phenomenon not defined or regulated by the Civil Code.
The inadmissibility of applying the norms on compensation for moral damage to the protection of the business reputation of a legal entity is also indicated by the use by the legislator of the word "respectively" in paragraph 7 of Art. 152 of the Civil Code: "The rules of this article on the protection of the business reputation of a citizen, respectively, apply to the protection of the business reputation of a legal entity." "Accordingly" in this case should be considered as an indication of the admissibility of applying to a legal entity those rules of Art. 152 of the Civil Code, which correspond to the status and legal nature of a legal entity.
So, the institution of compensation for moral damage cannot be applied to legal entities. To establish certainty in the issue under consideration, it would be advisable to state paragraph 7 of Art. 152 of the Civil Code as follows: "The rules of this article on the protection of the business reputation of a citizen, excluding the right to compensation for moral damage, apply to the protection of the business reputation of a legal entity."
This position is also confirmed in court decisions in specific cases. Thus, in particular, the Savelovsky People's Court of Moscow considered the claim of the insurance company against the mass media. The subject of the claim was the requirement of the insurance company to refute information discrediting its business reputation (carrying out activities without an appropriate license), coupled with a claim for damages and compensation for moral damage. The court granted the claims for refutation of the information and compensation for damages, but refused to satisfy the claim for compensation for non-pecuniary damage.
It should be noted that the illegal action, which consists in the dissemination of untrue information that discredits the business reputation of a legal entity, has a certain specificity. It lies in the fact that this information, depending on its nature, may at the same time indirectly discredit the honor, dignity or business reputation of a certain citizen or citizens.
The fact is that a legal entity acquires a business reputation as a result of its implementation of certain activities, which manifests itself in various actions of citizens acting as bodies and employees of a legal entity, and in cases provided for by law (clause 2 of article 53 of the Civil Code) - participants in a legal entity. faces. So, transactions, that is, legal actions aimed at the emergence, change or termination of civil rights and obligations, a legal entity makes through its bodies or participants, which are obliged by virtue of paragraph 3 of Art. 53 of the Code to act in the interests of a legal entity in good faith and reasonably.
The fulfillment of duties and the exercise of rights is carried out by a legal entity not only through its bodies, but also through the actions of its employees, which are considered the actions of the legal entity itself (Article 402 of the Civil Code). Therefore, the publication, for example, that a legal entity provides counterparties with false information when making transactions, contains information about the citizens through whom the legal entity makes a transaction. The dissemination of false information about the release of defective products by an enterprise not only discredits the business reputation of the enterprise, but at the same time can offend the honor of a particular employee involved in the manufacture or quality control of such products.
As noted in the Decree of the Plenum of the Supreme Court of the Russian Federation of August 18, 1992 N 11, as amended on December 21, 1993, discrediting information is untrue information containing allegations of a violation by a citizen or legal entity of the current legislation or moral principles, as well as other information discrediting his production - economic or social activities.
Thus, the dissemination of information discrediting the business reputation of a legal entity may, depending on the nature of the information, cause harm to another object - the honor, dignity or business reputation of a particular citizen or citizens whose actions carry out the activities of a legal entity. There are situations when such a double effect does not occur: in particular, the dissemination in the media of inaccurate information about the personal data of a legal entity (for example, an indication of the authorized capital of a bank in an amount smaller than in reality, detracts from the business reputation of the bank in the eyes of possible counterparties, but does not affect the reputation of its employees).
The relationship of a citizen or citizens whose honor, dignity or business reputation is indirectly discredited by disseminated information, and the distributors of such information are subject to Art. 152 of the Civil Code, if these citizens are sufficiently personified in the eyes of other persons by the content of the information disseminated about the legal entity. This issue should be investigated by the court on the basis of the specific circumstances of the case, taking into account, in particular, the possible circle of persons capable of making a reasonable assumption about the recognition of a particular citizen in discrediting information spread about the activities of a legal entity.
For example, a false report about the release of defective products by an enterprise can detract from the honor and dignity of an employee of an enterprise directly involved in the manufacture or quality control of products in the eyes of a significant number of other employees of this enterprise.
The burden of proving one's personification in terms of the content of information disseminated about a legal entity in the eyes of other persons should be placed on the citizen. A similar approach takes place in foreign, in particular English, legal doctrine and judicial practice.
Thus, a legal entity has the right to demand a refutation of information discrediting its business reputation and compensation for losses, and a citizen, in the presence of the above circumstances, a refutation of the same information and compensation for moral damage caused by the dissemination of such information. This citizen and legal entity will not be co-plaintiffs in the sense of Art. 35 Code of Civil Procedure of the Russian Federation, therefore, in principle, the jurisdiction of such claims is not excluded different types courts (general and arbitration, respectively). In practice, the vast majority of lawsuits by legal entities against the media for refutation of information are brought to general courts, since the author and editorial staff of the media are involved as defendants. In these cases, it is advisable to combine cases on claims of a legal entity and a citizen against the distributor of information in one proceeding in the manner of Part 4 of Art. 128 Code of Civil Procedure of the Russian Federation.
In these cases, the rules of Art. 151 of the Civil Code and paragraph 4 of Chapter 59 of the Civil Code. When determining the amount of compensation, as a noteworthy circumstance, the position of a citizen in the structure of a legal entity should be taken into account in conjunction with the nature of the information disseminated. Undoubtedly, the indirect, anonymous nature of information about a legal entity, which nevertheless accurately personifies a citizen, is anonymous in relation to citizens, and is also a noteworthy circumstance that can reduce the amount of possible compensation for moral damage to a symbolic amount.
This approach makes it possible to apply the rules on the protection of the business reputation of a legal entity in accordance with its legal nature and ensure proper protection of the honor, dignity and business reputation of citizens.
LINKS TO LEGAL ACTS
"FOUNDATIONS OF THE CIVIL LEGISLATION OF THE UNION OF THE SSR AND THE REPUBLIC"
(approved by the USSR Supreme Council on May 31, 1991 N 2211-1)
"CIVIL CODE OF THE RUSSIAN FEDERATION (PART ONE)"
No. 51-FZ dated November 30, 1994
(adopted by the State Duma of the Federal Assembly of the Russian Federation on October 21, 1994)
"CIVIL CODE OF THE RUSSIAN FEDERATION (PART TWO)"
dated 01/26/1996 N 14-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on December 22, 1995)
DECISION N 11 of the Plenum of the Supreme Court of the Russian Federation dated August 18, 1992
"ON SOME ISSUES ARISING WHEN CONSIDERATION BY THE COURTS OF CASES ABOUT
DEFENDING THE HONOR AND Dignity of CITIZENS AND ORGANIZATIONS"
RESOLUTION of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10
"SOME ISSUES IN THE APPLICATION OF COMPENSATION LEGISLATION
MORAL DAMAGE"
Economy and law, N 11, 1996
Institute for Compensation for Non-pecuniary Damage for Russian law is relatively new. Its application in judicial practice has caused and causes various kinds of difficulties and problems. The most difficult question is - to whom exactly moral harm can be inflicted only: a citizen or also a legal entity?
From the definition of moral damage given in Article 151 of the Civil Code of the Russian Federation, and the conditions for its compensation, it can be concluded that moral damage can only be caused to an individual. It seems that physical or moral suffering cannot be caused to a legal entity. However, in Art. 152 of the Civil Code of the Russian Federation, which provides for the protection of the honor, dignity, and business reputation of a citizen, it is said that the rules on the protection of business reputation, respectively, apply to the protection of the business reputation of a legal entity. And among these rules, not only damages are provided, but also compensation for moral damage. Based on these provisions, the Plenum of the Supreme Court of the Russian Federation in its resolution of December 20, 1994 No. 10 in paragraph 5 gave the following explanation: information regarding a legal entity (clause 6, article 7 of the Fundamentals of Civil Legislation of the USSR and the republics on legal relations that arose after August 3, 1992, clause 7 of article 152 of the first part of the Civil Code of the Russian Federation on legal relations that arose after January 1, 1995) ".
Commenting on this point of the Plenum resolution, Deputy Chairman of the Supreme Court of Russia V. Zhuykov pointed out that “the above explanation was given due to the fact that in practice there were doubts about the possibility of compensation for moral damage to a legal entity, since it cannot experience physical or moral suffering.” Such doubts in judicial practice, indeed, have arisen and arise, as can be seen from the following example.
Some time later, the Savelovsky Intermunicipal People's Court of Moscow received an "application for the protection of the honor and dignity of the museum." And in the additional statement of claim the question was raised about the recovery of moral damage caused by the publication.
When considering the case on the merits, the people's court found that the newspaper publication did contain a number of inaccuracies and unsubstantiated statements, and therefore the claim for "protecting the honor and dignity of the museum" was basically satisfied by the court. At the same time, the people's court partially (in the amount of 50 million rubles) satisfied the claim concerning compensation for moral damage.
The editorial board of the newspaper cassation complaint, which raised the question of the impossibility of recovering any amounts in compensation for moral damage caused to a legal entity. In particular, attention was drawn to the essentially complete absence of any motivation in the court decision as a fundamental possibility of compensating for moral damage caused to a legal entity.
In this respect, the judgment read as follows:
“According to Article 7, Clause 6 of the Fundamentals of Civil Legislation of the USSR and the Republics, applied on the territory of the Russian Federation since August 3, 1992, a citizen or legal entity in respect of which information is disseminated discrediting his honor and dignity or business reputation, has the right, along with a refutation such information, demand compensation for losses and moral damage caused by their dissemination.
According to the court, it was the moral duty of the editorial staff to be especially cautious about the dissemination of such information, which detracts not only from the prestige of the museum, but also of the Russian Federation. Taking into account all these circumstances, the court considers it possible to recover from the defendant in favor of the plaintiff in compensation for moral damage 50 million rubles.
At a meeting of the Judicial Collegium for Civil Cases of the Moscow City Court, the judge - rapporteur asked the representatives of the plaintiff what exactly was the physical or mental suffering suffered by the museum in connection with the publication in the newspaper. Quite naturally, there was no intelligible answer to it. Partially canceling the decision of the people's court, the collegium indicated the following: “the decision of the court regarding the recovery of moral damages in the amount of 50 million rubles. rub. from the editorial office of the newspaper in favor of the plaintiff is subject to cancellation, since it contradicts the requirements of Art. 7 of the Civil Code of the Russian Federation, art. 62 of the Law of the RSFSR "On the Mass Media", which provides for compensation for moral harm caused to a citizen as a result of the dissemination by the mass media of untrue information that discredits his honor and dignity, and not a legal entity.
The court erroneously applied the norm of clause 6, article 7 of the Fundamentals of Civil Legislation of the USSR and the republics, since the legal relations that arose between the parties in this case are subject to the norms of the legislation of the Russian Federation (Article 7 of the Civil Code of the Russian Federation and Article 62 of the Law of the Russian Federation “On Mass Media”). information” dated December 27, 1991).
In accordance with paragraph 1 of the decision of the Plenum of the Supreme Court of the Russian Federation of December 22, 1992 "On Certain Issues of the Application of the Fundamentals of Civil Legislation of the USSR and the Republics on the Territory of the Russian Federation" the provisions of the Fundamentals insofar as they contradict the Constitution of the Russian Federation and legislative acts Russian Federation adopted after June 12, 1990”. On the basis of paragraph 4 of Article 305 of the Code of Civil Procedure of the RSFSR, the collegium issued a new decision in this part, which the museum's claim was denied.
In connection with the foregoing, the reference to paragraph 6 of Art. 7 Fundamentals of Civil Legislation, which is contained in paragraph 5 of the Resolution of the Plenum of the Supreme Court of Russia dated December 20, 1994 As mentioned above, the named norm, in accordance with the regulations Supreme Council RF dated July 14, 1992. and dated March 3, 1993. in the period before August 3, 1992, in particular, cannot be applied to obligations for compensation for moral damage if they arose in connection with the activities of the mass media.
As for the provisions of paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, they cannot be applied in isolation from other provisions of Art. 152, and most importantly, in isolation from the norms formulated in Art. 151 of the Civil Code, specifically dedicated to compensation for non-pecuniary damage. Therefore, interpreting these norms in the system, it is necessary to come to the following conclusion.
In accordance with paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, the rules formulated in it on the protection of the business reputation of a citizen are accordingly applied to the protection of the business reputation of a legal entity. In particular, a legal entity, just like a citizen, has the right to demand in court a refutation of information discrediting its business reputation, if the person who disseminated such information does not prove that it is true. At the request of interested parties, its former owner or his heirs, the protection of the business reputation of a legal entity is allowed, even after the termination of its existence.
If information discrediting the business reputation of a legal entity is disseminated in the press, it must be refuted in the same media. Similarly, other rules contained in paragraphs 2-6 of Art. 152 GK. However, from the meaning of Art. Art. 151, 152 of the Civil Code of the Russian Federation the following exception follows.
The rules relating to compensation for moral damage cannot be applied to the protection of the business reputation of a legal entity, since this would be in clear conflict with the concept of moral damage contained in Part 1 of Art. 151 of the Civil Code of the Russian Federation.
The clarification contained in paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 is fully consistent with the current civil legislation. In particular, the following is written there: “When considering claims for compensation to a citizen for moral damage ... the amount of compensation depends on the nature and amount of moral or physical suffering inflicted on the plaintiff, the degree of guilt of the defendant in each particular case, and other noteworthy circumstances” .. Thus, the explanations contained in paragraphs 5 and 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “Some Issues of the Application of Legislation on Compensation for Moral Damage” contain irreconcilable contradictions. Paragraph 5 of the resolution refers to the possibility of compensation for moral damage, both in relation to a citizen and a legal entity, and paragraph 8 refers to compensation for moral damage caused only to a citizen. In addition, even if we agree that non-pecuniary damage and, accordingly, compensation are in principle possible in relation to a legal entity, then the calculation of the amount of compensation in accordance with Part 2 of Art. 151 of the Civil Code of the Russian Federation can be made solely on the basis of the degree of physical and moral suffering of the person who has been harmed. Moral, and even more so physical suffering can only be endured by a person. And, on the contrary, this kind of suffering, and with them the very concept of moral harm, can in no way be compatible with the construction of a legal entity.
Accordingly, in paragraph 5 of the decision of the Plenum of the Supreme Court of Russia of December 20, 1994. and paragraph 10, paragraph 11 of the decision of the Plenums of the Supreme Court of Russia of August 18, 1992 Clause 11 should be written that moral damage can be inflicted and compensated only for a citizen. However, future legislation should provide for the possibility of compensation (in monetary terms) for damages caused to the business reputation of a legal entity. However, this kind of possibility in the law should be directly designated as compensation (in monetary terms) for non-property damage caused to the business reputation of a legal entity.
Maly A.V.
Orenburg State University Email - [email protected]
COMPENSATION FOR MORAL DAMAGE TO A LEGAL ENTITY
Keywords: entity; moral injury; compensation; business reputation; reimbursement.
According to part 7 of Art. 152 of the Civil Code of the Russian Federation "the rules of this article on the protection of the business reputation of a citizen are accordingly applied to the protection of the business reputation of a legal entity." There are two main positions regarding the problem of compensation for moral damage to a legal entity.
The most common of them, of course, does not allow for a single possibility of compensation for moral damage to a legal entity. Thus, according to some lawyers, the rules relating to compensation for moral damage cannot be applied to the protection of the business reputation of a legal entity, since this would be in clear conflict with the concept of moral damage contained in part 1 of Art.
151 of the Civil Code of the Russian Federation. For example, V.V. Vitryansky believes that “... the preservation of the practice of courts of general jurisdiction on compensation for moral damage in favor of legal entities, based on the Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994, seems to be a misunderstanding caused by a purely formal application of paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, which provides that the rule on the protection of the business reputation of a citizen (including compensation for moral damage) is accordingly applied to the protection of the business reputation of a legal entity. In the opinion of O.A. Peshkova, legal entities should not be compensated for moral damage. IN otherwise there will be a mixture of two independent elements of the civil law system: the institution of compensation for moral damage and the institution of protection of honor, dignity and business reputation, each of which has its own subject and object of protection.
The point of view of the Constitutional Court of the Russian Federation on this issue is also interesting. The Ruling of December 4, 2003 states: exactly according to the nature of the legal entity
applicability to the protection of his business reputation of one or another statutory ways to protect violated civil rights. Statement in the article
151 of the Civil Code of the Russian Federation that moral harm is moral or physical suffering caused to a citizen, indicates that the legislator proceeds from a differentiated approach to regulating relations regarding compensation for moral harm, depending on which subject, citizen, legal entity, public education has been harmed accordingly. At the same time, the legislator also proceeds from the lack of identification of citizens and legal entities and adequately builds the legal regulation of relations regarding compensation for moral damage. Since the legal nature of organizations as legal entities does not imply that they suffer physical or moral suffering as a result of the dissemination of information discrediting their business reputation, compensation for moral damage to a legal entity contradicts the very essence of this method of protecting violated civil rights.
The Supreme Arbitration Court of the Russian Federation is also of the opinion that the concept of non-pecuniary damage cannot be applied to legal entities, and accordingly it is impossible to satisfy claims for its compensation. This position has been reflected in the jurisprudence. The Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 1, 1998 No. 813/98 states: “In accordance with Article 151 of the Civil Code of the Russian Federation, moral harm is understood as physical or moral suffering caused to a citizen by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to the citizen. Once-
measures of compensation for non-pecuniary damage is determined taking into account the degree of physical and moral suffering associated with the individual characteristics of the person who was harmed. Since a legal entity cannot experience physical or moral suffering, it is impossible to inflict moral harm on it. Therefore, based on the meaning of Articles 151 and 152 of the Civil Code of the Russian Federation, the right to compensation for moral damage is granted only to an individual.
The recovery of non-pecuniary damage was denied on the grounds that the peasant (farm) economy is a legal entity (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 23, 2006 No. 16140/05 in case No. 5-70/04). Compensation for non-pecuniary damage was denied due to the fact that the plaintiff is a legal entity that is not capable of experiencing physical or mental suffering, which is subject to compensation in the event of non-pecuniary damage (Resolution of the Federal Antimonopoly Service of the Moscow District of December 16, 2003 in case No. KG-A40 / 10072 -03). Legal entities, in accordance with articles 151 and 1099 of the Civil Code of the Russian Federation, are not entitled to compensation for moral damage (Resolution of the Federal Antimonopoly Service of the Volga District of March 31, 2005 in case No. A65-1019 / 2004-SG1-18). The court pointed out that the Ostrov peasant (farmer) economy, being a legal entity, cannot experience moral and physical suffering, therefore the claim for compensation for moral damage is not subject to satisfaction (Resolution of the Federal Antimonopoly Service of the North Caucasus District of August 31, 2005 No. F08- 3590/2005 in case No. A32-673/2005-42/11).
The explanation contained in paragraph 15 of Resolution No. 3 of the Plenum of the Supreme Court of the Russian Federation of February 24, 2005 is fully consistent with the current civil law. In particular, the following is written there: reputation of a citizen, are also applied in cases of dissemination of such information in relation to a legal entity. Compensation for non-pecuniary damage is determined by the court when making a decision in monetary terms. When determining the amount of compensation for moral damage to the courts
should take into account the circumstances specified in paragraph 2 of Art. 151 and paragraph 2 of Art. 1101 of the Civil Code of the Russian Federation, and other noteworthy circumstances.
Thus, the explanation contains irreconcilable contradictions. Even if we agree that non-pecuniary damage and, accordingly, compensation are in principle possible in relation to a legal entity, then the calculation of the amount of compensation in accordance with Part 2 of Art. 151 of the Civil Code of the Russian Federation can be made solely on the basis of the degree of physical and moral suffering of the person who has been harmed. Moral, and even more so physical suffering can only be endured by a person. And, on the contrary, this kind of suffering, and with them the very concept of moral harm, cannot in any way be compatible with the construction of a legal entity. In this, many civilists are unanimous, such as V.M. Zhuikov, A. Bonner, Yu.K. Tolstoy, N.S. Malein, V.T. Smirnov, V. Plotnikov and others. A.R. Ratinov proposed the following argument for the impossibility of compensation for moral damage: “For correct interpretation Article 152 of the Civil Code of the Russian Federation and without its legislative adjustment is possible, since the text says that "the rules of this article on the protection of the business reputation of a citizen are accordingly applied to the protection of the business reputation of a legal entity." The word "respectively" in this context means the applicability of only those provisions of the rule that correspond to the legal nature of the legal entity. Legal entities unable to experience physical and moral suffering cannot and should not count on their compensation. This argumentation can be used, but it cannot be expected that it will always be winning.
Let us turn to the opposite position of the problem we are considering. Article 152 of the Civil Code of the Russian Federation defines the circle of subjects entitled to compensation for moral damage. At the same time, the rules governing compensation for non-pecuniary damage in connection with the dissemination of information discrediting the business reputation of a citizen are also applied in cases where such information is disseminated in relation to a legal entity.
The evaluation criterion for determining the circle of persons entitled to compensation for moral
harm is the infliction of “physical or moral suffering” on a person, which means that there are no restrictions on the issue of determining the circle of persons entitled to compensation for moral harm, if normative act not otherwise established. Touching upon the issue of the circle of persons entitled to compensation for non-pecuniary damage, P.N. Gusakovsky notes: “In view of the fact that all persons in general who have been property damage unlawful act, have the right to compensation, consistency requires that with the establishment of the right for moral damage, this right should be equally granted to all those persons who, by any unlawful act, have suffered moral suffering. Articles 150-152 of the Civil Code of the Russian Federation fixed the legal equality of citizens and legal entities for compensation for moral damage and protection of business reputation. At the same time, when analyzing the content of these articles, the limited right of a legal entity to compensation for moral damage is revealed. It is reimbursed only in case of dissemination of information discrediting the business reputation of a legal entity. What kind of moral harm can we talk about when the honor and dignity of a legal entity belittled? It seems that we are talking about the loss of business reputation, good name etc., which may adversely affect the commercial or other activities of the legal entity.
Moral damage in this case is understood as any negative consequences of a violation of the personal non-property rights of a legal entity associated with a decrease in its property status.
The establishment in paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, the right of a legal entity to protect business reputation, similarly to the right of a citizen, is a reflection of the views of supporters of such a position. In particular, M.N. Malein. She puts forward the idea that it is necessary to provide by law "such a method of protection as compensation for moral damage in case of violation of any property rights of a legal entity." V.T. Smirnov also claims that legal entities also have the right to compensation for moral damage. However, he
notes that a legal entity cannot experience any moral, let alone physical suffering. By moral harm, he proposes to understand all the negative consequences of violating the personal non-property rights of an organization associated with the derogation of its property sphere. According to A.V. Shichanin, established in paragraph 7 of Art.
152 of the Civil Code of the Russian Federation, the right of a legal entity to protect its business reputation is similar to the right to protect the business reputation of a citizen. However, limiting the grounds for the emergence of the right of a legal entity to compensation for moral damage only by disseminating information that discredits the business reputation of a legal entity deliberately limits the ability of a legal entity to protect personal non-property rights, since it does not simply cover all potential cases of causing moral harm to a legal entity, which in itself unrealistic and impractical, but above all does not create a reliable legal framework to effectively protect the business reputation of a legal entity. He proposes to compensate for moral harm and in case of violation contractual obligations, disclosure trade secret, illegal use of a trademark, etc. .
E.A. Mikhno defends a similar position: harm can be caused not only by the dissemination of defamatory information, as indicated in paragraph 7 of Art. 152 of the Civil Code of the Russian Federation, but also by any illegal intrusion into the non-property sphere of a legal entity. However, she clarifies that in this case we are not talking about moral damage, but about non-pecuniary damage in the form of negative consequences and violations of personal non - property rights of legal entities .
In judicial practice, there are examples of compensation for non-property (moral, reputational) damage to legal entities. So, when considering the case on the claim of OJSC Alfa-Bank against CJSC Kommersant. Publishing House” on the protection of business reputation, on the recovery of damages in the amount of 20,505,906 rubles. 69 kop., for the recovery of non-material (reputational) damage in the amount of 300,000,000 rubles. The arbitral tribunal granted the claims in full. Justifying the claim for compensation for non-material (reputational) damage, the plaintiff refers to paragraphs 5 and 7 of Art. 152 of the Civil Code of the Russian Federation, as well as the Ruling of the Constitutional Court of the Russian Federation dated
December 4, 2003 No. 508-O “On the refusal to accept for consideration the complaint of citizen Shlafman V.A. to the violation of his constitutional rights by paragraph 7 of Article 152 of the Civil Code of the Russian Federation”. In this definition constitutional Court The Russian Federation points out: the applicability of a particular method of protecting violated civil rights to protecting the business reputation of legal entities should be determined based precisely on the nature of the legal entity. At the same time, the absence of a direct indication in the law of the method of protecting the business reputation of legal entities does not deprive them of the right to make claims for compensation for losses, including intangible damage caused by detracting from business reputation, or non-material harm that has its own content (other than the content of moral damage, caused to a citizen), which follows from the essence of the violated intangible right and the nature of the consequences of this violation (clause 2, article 150 of the Civil Code of the Russian Federation). This conclusion is based on the provision of part 2 of Art. 45 of the Constitution of the Russian Federation, according to which everyone has the right to protect their rights and freedoms by all means not prohibited by law.
After evaluating the arguments of the parties, as well as the evidence presented by them, the court came to the conclusion that the false information disseminated by the defendant and discrediting the plaintiff harmed the reputation of the plaintiff. This harm was expressed in the loss of confidence in the bank on the part of its customers, which led to a significant outflow of Money from the bank. The court also took into account the fact that the Kommersant newspaper is an authoritative mass media outlet that enjoys the trust of its readership and holds a leading position in its coverage of events in the field of the economy.
When assessing the amount of non-pecuniary damage, the court took into account the dependence of the reputation of banks on its public assessment, created, among other things, by the media. Negative information about a bank directly affects its financial stability.
The court considered it possible to satisfy the plaintiff's claim for compensation for non-pecuniary damage in the amount claimed by him. It seems that this example guides the courts on the system of circumstances that must be taken into account when determining the amount of non-pecuniary damage.
legal entity, which, of course, is an important point in the matter of satisfying such claims.
In connection with the foregoing, it seems appropriate to secure the right of a legal entity to protect business reputation and the possibility of compensation for non-property (reputational) damage, setting out paragraph 7 of Art.
152 as follows: “A legal entity, if information discrediting its business reputation is disseminated, has the right to refute such information in the manner established for citizens; for damages and monetary compensation for non-property damage. However, the following situation may arise. When damage is done to the business reputation of a legal entity, the business reputation of certain citizens may be harmed through this. This is due to the fact that the activity of a legal entity consists of the activities or individual actions of citizens who may be employees, management bodies of this entity or participants in the entity. The communication of false information that discredits the reputation of an organization may damage the business reputation of a citizen who made a transaction on behalf of a legal entity; information about products of “improper quality” released by an organization can harm citizens directly responsible for the production and quality of products, etc. In such cases, double harm occurs, i.e., harm is simultaneously caused to both a legal entity and individuals .
As already mentioned, citizens have the right to compensation for non-pecuniary damage. In a situation where such harm is caused to a citizen (or citizens) indirectly, through damage caused to the business reputation of a legal entity, it is necessary to prove the existence of the possibility to name specific persons who, through the dissemination of information discrediting the business reputation of the organization, suffered moral harm. The burden of proving that the dissemination of false information about the organization caused harm to a certain individual, citizen, will lie with the citizen himself.
Based on the foregoing, the following solution to the problem under consideration is proposed:
1) in relation to a legal entity, use a synonymous category - non-property (reputational) damage instead of the category "moral harm";
2) use two methods of protection in case of causing reputational damage to a legal entity. The first one is
protection of the legal entity itself, i.e. its name, brand, trademark etc., the second - in protecting the business reputation of the bodies of a legal entity, director, deputy, accountant, i.e. directly in protecting the reputation of individuals as employees of this legal entity.