1. Harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, shall be subject to compensation in full by the person who caused the harm.

By law, the obligation to compensate for harm may be assigned to a person who is not the tortfeasor.

A law or an agreement may establish the obligation of the tortfeasor to pay compensation to the victims in excess of compensation for harm. The law may establish the obligation of a person who is not the tortfeasor to pay compensation to the victims in excess of compensation for harm.

2. The person who caused harm shall be released from compensation for harm if he proves that the harm was caused through no fault of his. The law may provide for compensation for harm even in the absence of fault of the tortfeasor.

3. Damage caused by lawful actions is subject to compensation in cases provided for by law.

Compensation for harm may be denied if the harm was caused at the request or with the consent of the victim, and the actions of the tortfeasor do not violate the moral principles of society.

Expert comment:

According to the logic of the legislation of the Russian Federation, harm should be understood as everything that is associated with the occurrence of any type of damage to one person, moral or material, arising from the actions or inaction of another person. However, the Civil Code of the Russian Federation is focused mainly on the creation of rules for regulating relations that relate to the economic aspects of life.

Comments to Art. 1064 of the Civil Code of the Russian Federation

1. The article reproduces the rules previously contained in Art. 444 of the Civil Code of 1964, and more fully regulates the general grounds for liability for causing harm, clarifying them and introducing some novelties. In the legal literature, obligations due to harm are also called tort obligations.

2. Obligations as a result of causing harm, in contrast to the obligations contained in Ch. 30 - 58 of the Civil Code, are non-contractual, their subjects - the creditor (injured) and the debtor (the tortfeasor) - are not in a contractual relationship and, therefore, the obligation to compensate for the harm is not related to non-performance or improper performance contractual obligations. Following the Fundamentals of the Civil Law and the Consumer Rights Protection Law, the Civil Code extends the rules on tort liability and infliction of harm (in the cases provided for in the Civil Code) in the field of contractual relations. We are talking, in particular, about compensation for harm caused to the life or health of a citizen in the performance of contractual obligations (see Art. 1084 and commentary to it) and due to shortcomings in goods, works or services (see Art. 1095 and commentary to it). ).

3. For the onset of tort liability, which is a type of civil liability, it is necessary to have a corpus delicti, including: a) the occurrence of harm; b) the wrongfulness of the behavior of the tortfeasor; c) a causal relationship between the first two elements; and d) the fault of the tortfeasor. The listed grounds are recognized as general, since for the emergence of a tort obligation, their presence is required in all cases, unless otherwise provided by law. When the law changes the circle of these circumstances, they speak of special conditions of liability. These, for example, include cases of harm caused by a source of increased danger, the owner of which is liable regardless of fault (see Article 1079 of the Civil Code and comments to it).

4. In the commented article, harm is understood as material damage, which is expressed in a decrease in the property of the victim as a result of a violation of his material right and (or) a derogation of an intangible benefit (human life, health, etc.). Harm in the relations under consideration is not only a prerequisite, but also a measure of responsibility. The amount of compensation for general rule Art. 1064 must be complete, i.e. the victim is compensated for both actual damage and lost profits (see Articles 15 and 393 of the Civil Code).

There are exceptions to the full refund rule. Yes, Art. 1083 of the Civil Code allows for a reduction in the amount of compensation, taking into account the gross negligence (guilt) of the victim himself or the property status of the citizen who caused the harm. In paragraph 1 of Art. 1064 provides for the payment by the tortfeasor to the victim of compensation in excess of compensation for losses (the Civil Code of 1964 did not contain such a provision). If the limitation of the amount of compensation for losses can be established only by law, then compensation in excess of compensation for losses is possible on the basis of not only the law, but also the contract.

5. Article 1064 does not contain a direct reference to the unlawfulness of the behavior of the tortfeasor as an indispensable condition for tort liability. The unlawfulness of behavior in civil legal relations, which has two forms - action or inaction, means any violation of someone else's subjective (in relation to tort relations - absolute) right, entailing harm, unless otherwise provided by law. Obligations from causing harm are based on the so-called. the principle of general tort, according to which it is forbidden for anyone to harm the property or person of someone, and any harm to another is unlawful, unless the person was authorized to harm. Such cases, in particular, include infliction of harm in conditions of necessary defense, infliction of harm at the request or with the consent of the victim, when the actions of the tortfeasor do not violate the moral principles of society (for example, the patient's consent to an operation or the use of new, untested drugs and methods of treatment that do not exclude the possibility of adverse consequences; the consent of the owner to the destruction or damage of his thing, if this does not violate the rights and interests of other persons).

Causing harm by lawful actions, as a general rule, does not entail liability. Such damage is subject to compensation only in cases provided for by law. For example, harm caused in a state of emergency (see Art. 1067 and commentary to it), although it is lawful, is subject to compensation to the victim.

6. The causal relationship between the unlawful behavior of the tortfeasor and the resulting harm is a prerequisite for the onset of tort liability and is expressed in the fact that: a) the first precedes the second in time; b) the first gives rise to the second. In some cases, in order to impose tort liability, it becomes necessary to determine two or more causal relationships. Thus, when a citizen is injured, it is necessary to establish the existence of a causal relationship between unlawful behavior and injury, as well as between injury and loss of professional or general disability by the victim.

7. Tort liability, as a general rule, occurs only for the culpable infliction of harm. According to Art. 401 of the Civil Code of guilt is expressed in the form of intent or negligence. Intent is understood as the foreseeing of the harmful result of unlawful behavior and the desire or conscious assumption of its occurrence. Negligence is expressed in the absence of the care, foresight, care, etc. required under certain circumstances. (on the forms of negligence, see the comments to Art. 1083).

The fault of the tortfeasor is presumed; the absence of guilt is proved by the person who violated the obligation. In any case, whether the damage was caused intentionally or through negligence, the tortfeasor is obliged to compensate for it.

The current legislation is also aware of deviations from the principle of guilt (clause 4 of article 1073, clause 3 of article 1076, clause 1 of article 1078 and article 1079 of the Civil Code, article 101 of the VC, article 132 of the CTM, article 54 of the Law on nuclear energy, Article 88 of the Law of the RSFSR of December 19, 1991 "On Environmental Protection natural environment" // Vedomosti RSFSR. 1992. N 10. Art. 457), when responsibility is assigned regardless of the fault of the tortfeasor.

8. As a general rule, the subject of liability is the person who caused the harm (citizen or legal entity). Exceptions to this rule, when the direct tortfeasor and the subject of liability do not coincide in one person, are contained in the Civil Code itself (see Articles 1073, 1075, 1076, 1079, etc.).

Kuznetsova Lyubov Viktorovna

PhD in Law, Deputy General Director for Legal Affairs of CJSC "Slavimpeks".

Graduated from the Faculty of Law of Samara State University. In 2003 in Kazan state university defended a dissertation degree candidate of legal sciences. Specialist in corporate and contract law.

The main range of scientific interests: issues of implementation and protection of civil rights, corporate law, law of obligations.

Author of more than 20 scientific publications in leading legal publications, including the monograph "Priority rights in the civil law of Russia" (2007), articles "Protection of preemptive rights in civil law: problems of theory and law enforcement" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2005), "Foreclosure on securities" (Law. 2006), "Exclusion of a participant from a limited liability company" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006), "Controversial issues of termination of an obligation by the coincidence of the debtor and creditor in one person" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008).

Liability for a tort, i.e. non-contractual liability for an offense expressed in causing harm is one of the types of civil liability along with, for example, contractual or conditional. At the same time, tort liability has the most pronounced universal character and serves as one of the most effective components of the mechanism for protecting absolute rights, primarily property rights. Despite the importance of such liability in the system of protection of civil rights, as well as the very detailed legislative regulation of the relations caused by it, to date, the institution of tort liability remains associated with a number of controversial and controversial problems and issues, the resolution of which is extremely important both for judicial practice and for correct understanding both tort and civil liability in general.

Tort Liability and Tort Liabilities: Controversial Correlation Issues

In the literature and judicial practice, the concepts of "tort obligation" and "tort liability" are often confused, used as identical or interchangeable.<1>. In addition, tort liability is assessed by the courts as an element of the content of a tort obligation.<2>or, on the contrary, the obligation itself is considered as the content of liability for causing harm<3>.

<1>See, for example: Decisions of the Federal Antimonopoly Service of the North-Western District of July 22, 2003 in case No. F04 / 3371-629 / A70-2003; FAS of the East Siberian District of October 25, 2005 in case N A19-6173 / 04-7-F02-5227 / 05-C2 and others.
<2>See, for example: Decrees of the Federal Antimonopoly Service of the Volga District of October 4, 2007 in case N A12-6718 / 06-C62; FAS of the North-Western District of June 24, 2008 in case N A56-21029 / 2007 and others.
<3>Decree of the Federal Antimonopoly Service of the West Siberian District of October 6, 2003 in case N F04 / 5142-864 / A75-2003.

It is generally accepted that the noted use of the concepts under consideration does not contain a contradiction, since it is due to their close relationship.<1>. As noted, the latter is due to the fact that it is tort liability that constitutes the content of the obligation from causing harm, since "in this case, liability does not supplement, does not" accompany "any other obligation (as in contractual liability), it constitutes the content of the offender's obligation in obligation arising from the infliction of harm"<2>.

<1>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E.A. Sukhanov. M.: Wolters Kluver, 2005. S. 561.
<2>There.

It is known that tort obligations (obligations from causing harm) are a kind of civil law obligations, by virtue of which one party (the tortfeasor, delinquent) is obliged to compensate the property damage caused by it to the other party (victim) (in kind or by compensation for losses), as well as in cases provided for by law, compensate for non-property (moral) damage, suspend or terminate production activities, and the victim has the right to demand from the harm-doer the fulfillment of this obligation<1>.

<1>See, for example: Civil Law: Textbook. Part two / Rev. ed. V.P. Mozolin. M.: Yurist, 2004. S. 312.

In such an obligation, the victim acts as a creditor, and the tortfeasor (delinquent) acts as a debtor.

The basis for the emergence of a tort obligation, namely the civil obligation of the tortfeasor to compensate for the latter and the counter subjective right of the victim to demand appropriate compensation from the delinquent, by virtue of the provisions of subpara. 6 p. 1 art. 8 of the Civil Code of the Russian Federation, is the legal fact of causing harm or, otherwise, a tort.

In turn, liability under civil law, including tort as its particular manifestation, is the application of coercive measures defined by law to the offender - sanctions or measures of responsibility, which are characterized exclusively by property content and are expressed in the imposition on the offender of additional obligations that have, from the point of view of view of the property sphere of the latter negative value.

Thus, like civil liability in general, tort liability has as its actual content a property obligation, namely, the obligation of the delinquent to compensate the harm caused to the victim. In this case, the specified obligation acts as an integral element of the legal relationship for compensation for harm and arises, like the legal relationship as a whole, from the legal fact of its infliction (from the tort).

In other words, it is more correct to say that property liability does not act as the content of an obligation from causing harm, but, on the contrary, it is necessary to characterize the obligation of the delinquent to compensate for harm, which is an element of the content of the corresponding tort obligation, as a tort liability imposed on the offender and, as a result, evaluate the latter precisely through the specified obligation, and not vice versa.

The analyzed obligation to compensate for the harm caused cannot always be regarded as liability. So, the obligation to compensate for harm caused as a result of lawful actions (see paragraph 3 of Article 1064 of the Civil Code of the Russian Federation), as well as compensation for harm caused in a state of necessary defense or extreme necessity, cannot be assessed in the named capacity. In these cases, the legislator either completely refuses to compensate for the harm caused, or, by establishing an appropriate obligation, pursues the goal of compensating the victim for the losses he has suffered.<1>.

<1>Civil Law: Textbook. T. 2 / Ed. HE. Sadikov. M.: INFRA-M, 2007. S. 451.

A tort obligation, as noted above, always develops as a consequence of the occurrence of a legal fact of causing harm. And from the very beginning of the existence of the obligation, the obligation of the delinquent to compensate for harm, which is the content of such an obligation, arises and is characterized in the future as the property liability of the tortfeasor for the offense committed by him. This duty can be performed by the delinquent voluntarily, otherwise the victim has the right to apply to the court with a claim for compensation for the damage caused. The possibility of such state coercion to fulfill the obligation is a quality inherent in almost any legal relationship of obligations, and is not related to the characterization of the obligation in question as a liability. The peculiarity is that the responsibility itself in this case acts as the essence and meaning of the obligation, which means that the judicial protection of the rights of the victim is carried out not in the form of bringing the delinquent to responsibility, but as coercion to fulfill the obligation in kind.

However, the issue of liability for failure to fulfill a tort obligation can also be raised and resolved positively. However, unlike another type of non-contractual obligations, for example, obligations due to unjust enrichment (Chapter 60 of the Civil Code of the Russian Federation), in tort obligations, liability for the delinquent’s failure to fulfill the obligation to compensate for harm (i.e., failure to implement the mechanism of property tort liability) is not directly established by law. So, according to, for example, paragraphs 1 and 2 of Art. 1107 of the Civil Code of the Russian Federation, a person who has unjustly received or saved property is obliged not only to return the latter to the victim, but also to reimburse him for all the income that he has derived, or to pay the victim interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) in the amount of unjust monetary enrichment from the time when the acquirer knew or should have known about his unjust enrichment.

At the same time, the absence of a direct legislative fixation of the rule on the liability of the tortfeasor for failure to fulfill his obligation to compensate him does not cancel the possibility of applying such liability to him on the basis of the general provisions of civil law on compensation for losses (Article 15, 393 of the Civil Code of the Russian Federation) or the payment of interest for the use other people's money (Article 395 of the Civil Code of the Russian Federation).

Thus, the damage caused can be compensated in kind (by providing a thing of the same kind and quality, repairing a damaged thing, etc.) or by compensating for the damages caused according to the rules of Art. 15 of the Civil Code of the Russian Federation. The problem is that, based on the meaning of Art. 1082 of the Civil Code of the Russian Federation, the question of in what form the harm caused should be compensated is decided solely at the discretion of the court in accordance with the specific circumstances of the case. This feature, of course, does not mean that the obligation to compensate for harm arises only by virtue of a court decision and as a result of its adoption (it is known that a court decision is recognized as an independent legal fact that can give rise to civil rights and obligations) (see subparagraph 3 of paragraph 1 article 8 of the Civil Code of the Russian Federation). The tort serves as the basis of the analyzed legal relationship. However, the specific form of compensation for harm, and hence the expression of the obligation that serves as the content of tort liability, is determined only by agreement (oral or written) of the participants in the obligation from causing harm.<1>or based on a court order. This, on the one hand, creates a theoretical problem of assessing this form of "clarification" of the obligation of the delinquent, on the other hand, it causes insufficient effective application measures of responsibility for violation of the obligation of the tortfeasor to compensate for it, which, of course, does not contribute to the implementation of the mechanism of tort liability.

<1>Despite the wording of Art. 1082 of the Civil Code of the Russian Federation, which directly establishes that the question of the method of compensation for harm is decided by the court, it seems unacceptable to limit the ability of participants in civil legal relations to resolve this issue on the basis of a free agreement between the tortfeasor and the victim. This conclusion is all the more true because the law does not contain a direct or indirect prohibition on such a resolution of the named issue.

With regard to the problem of liability for non-fulfillment of a tort obligation, it should be noted that the agreement of the parties to such an obligation or a court decision on the method of compensation for the harm caused determines not only whether the harm will be compensated in kind or by collecting damages, but also, importantly, the point in time from which the participants in the relevant legal relations have the right to count the emergence of the right of the victim to bring the delinquent to responsibility for failure to fulfill the obligation to compensate for harm and, of course, the emergence of the corresponding obligation of the tortfeasor.

Thus, JSC "Penzadieselmash" (plaintiff) filed a claim with the arbitration court for the recovery of interest from JSC "Russian Railways" (defendant) for the use of other people's money on the basis of Art. 395 of the Civil Code of the Russian Federation. As follows from the materials of the case, the amount of damage caused by the shortage of cargo transported by the defendant was recovered from the defendant in favor of the plaintiff. The decision of the court to compensate for the harm caused came into force, but was not properly executed by the defendant. For the period of delay in the execution of the said court decision, the plaintiff filed a claim for the collection of interest for the use of other people's money.

The court of cassation, canceling the judicial acts held in the case and satisfying the claims of the plaintiff, pointed out the fallacy of the conclusions of the lower courts. The courts of the first and appellate instances concluded that the decision to recover the damage caused to the plaintiff by the shortage was not the basis for the emergence of the obligation for the defendant to pay the cost of the shortage to the plaintiff, since they only established a circumstance confirming that the defendant's obligation to pay the cost of the shortage really takes place , while the obligation to pay the defendant the cost of the shortage arose, according to sub. 6 p. 1 art. 8 of the Civil Code of the Russian Federation, as a result of the defendant causing harm to the plaintiff.

In connection with the above, the court of cassation, satisfying the plaintiff's requirements, referred to the provisions of Art. 395 of the Civil Code of the Russian Federation, as well as on paragraph 23 of the joint Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 13/14, according to which "when resolving disputes by courts related to the application of liability for causing harm, it must be taken into account that, on the basis of Article 1082 of the Code, upon satisfaction claims for damages, the court has the right to oblige the person responsible for causing the damage to compensate for the damage in kind (provide an item of the same kind and quality, repair the damaged item, etc.) or compensate for the losses caused (paragraph 2 of Article 15 of the Code). In the event that the court imposes on the party the obligation to compensate for the damage in money, on the side of the tortfeasor there arises a pecuniary obligation to pay the amounts determined by the court. decision in case of delay in its payment by the debtor, the creditor has the right to accrue interest on the basis of paragraph 1 of Article 395 of the Code. Interest is also accrued in the event that the obligation to pay monetary compensation is established by agreement of the parties "<1>.

It has already been noted above that in an obligation as a result of causing harm, the parties are the victim - the person who suffered the harm (creditor), and the debtor - the direct tortfeasor or the person responsible for the actions of the direct tortfeasor. For the debtor, the obligation imposed on him by law to compensate for the harm caused to the victim, being an integral element of the corresponding obligation, is at the same time a tort liability, i.e. property liability imposed on the tortfeasor for the offense committed by him. Such a description of the named obligation does not change, in essence, either its content or the features of its execution. However, given the fact that this obligation is also the content of property liability, it is necessary to answer the question of whether, for example, the rules of civil law on the transfer of debt (Article 391 of the Civil Code of the Russian Federation) apply to cases of its execution or whether the obligation can be fulfilled by a third party (Article 313 of the Civil Code of the Russian Federation).

The transfer of the delinquent's debt to another (third) person should be recognized as possible and admissible. As in all other cases of debt transfer, in the situation under consideration, such a transfer is carried out only with the consent of the creditor (clause 1, article 391 of the Civil Code of the Russian Federation), which ensures that the interests of the victim are observed and the influence of the debtor's personality is taken into account. As for the possibility of fulfilling such a tortious obligation by a third party according to the rules of Art. 313 of the Civil Code of the Russian Federation, it should be borne in mind that in tort relations the identity of the debtor may be of significant importance to the victim, which is also reflected in the performance of this obligation.

For example, the law allows for the possibility of taking into account the property status of the tortfeasor when determining the amount of compensation (Article 1083 of the Civil Code of the Russian Federation), if the harm was caused by a citizen through negligence. In the above, as well as in other cases when the identity of the delinquent may be of significant importance in terms of the peculiarities of imposing tort liability on him and its implementation, the fulfillment of the obligation that constitutes the content of such liability by a third party should be recognized as unacceptable. The basis for such a conclusion can also serve as paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, according to which "the fulfillment of an obligation may be assigned by the debtor to a third party, unless the obligation of the debtor to fulfill the obligation personally follows from the law, other legal acts, the terms of the obligation or its essence." Thus, the possibility of fulfilling the obligation to compensate for harm within the framework of a tort obligation by a third party must be assessed in each specific case and taking into account the specifics of causing harm and the essence of the said obligation.

Finally, another important issue related to the problem of the correlation of tort liability and tort obligation is the question of how to compensate for the harm caused (about the specific form of implementation of tort liability), which has already been partially touched upon above. In the current legislation, unfortunately, there are no unambiguous answers to the questions of whether the delinquent, as a general rule, should compensate for the harm in kind or do it by compensating for the losses caused (in monetary form), and also whether the harm tortfeasor himself has the right to determine the specific method of his reparation or it can only be done with the consent of the victim.

In our opinion, the obligation to cause harm in this respect meets the sign of alternativeness and therefore should be subject to the general regulation of the performance of an alternative obligation. So, according to Art. 320 of the Civil Code of the Russian Federation "a debtor who is obliged to transfer one or another property to the creditor or to perform one of two or more actions has the right to choose, unless otherwise follows from the law, other legal acts or conditions of the obligation." The application of this rule to tort obligations means that the tortfeasor, who voluntarily compensates for the harm caused, has the right to do this by any of the named methods permitted by law, and the victim, in turn, is obliged to accept such execution from the delinquent as proper. In other words, if the obligation of the delinquent to respond in a certain specific way is not enshrined directly in the agreement of the parties to the obligation and is not established by a court decision, the victim is not entitled to demand compensation for harm in kind if the harm is compensated by the delinquent in cash and vice versa, and also to refer to improper compensation for the harm caused .

Controversial issues of the basis and conditions of tort liability

Basis for tort liability.

Speaking about the basis of tort liability, it must be taken into account that the very concept of "ground" is characteristic of the theory of civil relations and is defined as a legal fact that generates, changes or terminates civil rights and obligations. Therefore, it seems that the basis of tort liability, given the above on the relationship between the latter and the tort obligation, is a legal fact that gives rise to such an obligation and, as its key element, the delinquent's obligation to compensate for harm, which serves as the content of tort liability. Therefore, the basis of a tort obligation and tort liability is the same - an offense or a tort.

The delict is one of the most ambiguous and underdeveloped concepts in the science of civil law today. The legal antiquity of the named legal phenomenon and its apparent simplicity ensured, unfortunately, the almost complete absence of a theoretical analysis of the concept of "delict", determining the place and role of the tort in non-contractual obligations, identifying certain types of torts, as well as constructing their system in modern civil law. At the same time, it is known that any knowledge that is not based on a thorough analysis of the cornerstone concepts and is devoid of a coherent system cannot be sufficiently theoretically complete and practically significant.

The delict is one of those legal phenomena that belong to the deepest legal past of mankind. It is extremely widely believed that obligations in general, in all their current diversity, arose precisely from the tort. As noted on this occasion by the outstanding Russian civilist and researcher of Roman law I.A. Pokrovsky, "the oldest germ of obligations lies in the area that we currently call civil offenses or torts; the contract as an independent source of obligations appears much later ..."<1>. With all the controversy of the indicated, "tort" theory of the origin of obligations<2>the importance of the tort itself for the formation and development of civil law is difficult to deny.

<1>Pokrovsky I.A. The main problems of civil law. M.: Statut, 1998. S. 236.
<2>See, for example: Civil Law: Actual Problems of Theory and Practice / Ed. ed. V.A. Belova. M.: Yurayt-Izdat, 2007. S. 654 - 655.

Delict - from the Latin delictum, which literally means "error", "mistake", "lawlessness", "sin", "crime" or "offence". The authors of one of the most popular textbooks on Roman law, edited by I.B. Novitsky and I.S. Peretersky, along with the concept of "delicta", the term "maleficia" is also mentioned, which was probably used along with the first and is translated as "enchantment", in the meaning of various damages or disturbances suffered by people, animals or property. Thus, in Roman law, "a delict is an unlawful act, an offense"<1>.

<1>Roman private law: Textbook / Ed. I.B. Novitsky and I.S. Peretersky. M.: Yurist, 2004. S. 327.

The noted is also supported by other authors, for example, M.Kh. Khutyz<1>. Some scholars of Roman law define a tort as "arbitrary transgression of the law"<2>. M. Bartoszek characterizes the concept under consideration as follows: from the point of view of Roman law, a tort is an offense, causing harm to an individual, his family or property by violating a legal establishment or prohibition, as a result of which, regardless of the will of the offender, new rights and legal obligations arise<3>.

<1>Khutyz M.Kh. Roman private law: a course of lectures. M.: Bylina, 1994. S. 137.
<2>See, for example: Mackenzie A. Roman law compared with the laws of France, England and Scotland / Per. from English. M.: Type. L.I. Stepanova, 1864, p. 256.
<3>Bartoszek M. Roman law: concepts, terms, definitions / Per. from Czech. M.: Yurid. lit., 1989. S. 92.

Torts in Roman law were divided into delicta publica (public torts) and delicta privata (private torts). The former "were recognized as violating the interests of the state as a whole and entailed corporal punishment, and sometimes the death penalty - crimina capitalia - or a property penalty, which, as a general rule, came to the state's income"<1>. Private torts, which are of interest to us, included an infringement exclusively on the interests of individuals, despite the fact that their consequences could be both fines or compensation for harm (property consequences) and corporal punishment.<2>.

<1>Roman private law: Textbook / Ed. I.B. Novitsky and I.S. Peretersky. S. 327.
<2>See: Kosarev A.I. Roman law. M.: Yurid. lit., 1986. S. 32.

There was no general generic concept of a tort in Roman law. From the point of view of law enforcement, only certain types of torts were of interest, of which there were a fairly large number. These are, in particular: injuria (translated from Latin - violence, insult, damage, damage: included all forms of encroachment on a person, on her life and health, other non-material benefits, as well as personal non-property rights); furtum (in translation from Latin - robbery, deceit, fraud: a tort against the property rights of the victim); damnum injuria datum (in translation from Latin - loss created by causing damage: concerned the infliction of property damage, which, however, was not associated with enrichment for the delinquent); rapina (translated from Latin - robbery: it was separated from the composition of furtum mainly in connection with the peculiarities of the responsibility of the delinquent); metus and dolus (translated from Latin - threat and deceit: a delict involving the infliction of property damage as a result of the named actions of the delinquent); fraus creditorum (translated from Latin - fraud against creditors: a special delict committed in order to hide the debtor's property from his creditors). In fact, there was no coherent system of torts, and even more so general criteria for classifying this or that act as torts, in Roman law, although in the process of development public torts finally separated from private torts and completely moved into the sphere of regulation of criminal and criminal law. administrative law, and private torts were formed as an independent and unified group of phenomena of an exclusively civilistic nature.

The history of the development of ideas about the tort in the Middle Ages, and in the future, was determined by the active reception of Roman law, with the corresponding adaptation of local laws, customs and precedents.<1>. But, in essence, neither the progress of legislation nor the evolution of scientific thought has added almost anything to the solution of the problem of the concept of a tort, its criteria, or the system of torts.

<1>For more on this, see: Vinogradov P.G. Roman Law in Medieval Europe. M.: Ed. A.A. Kartseva, 1910. S. 99.

Today, the tort is defined in the scientific literature and practice in the same way as in the days of Roman law - as a harmful offense or the very fact of causing harm.<1>. In the practice of arbitration courts, in the vast majority of cases, the delict is regarded as an "offense"<2>, in some cases - as "unlawful infliction of harm"<3>. This emphasizes the legal result of the tort in the form of harm and specifically indicates its wrongfulness. However, such a meager definition, of course, does not give an idea of either the actual content of the evaluated concept, or the potential of its practical application.

<1>See, for example: Civil Law: Textbook. Part two / Rev. ed. V.P. Mozolin. S. 355; Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E.A. Sukhanov. 2005. S. 437.
<2>See, in particular: Decisions of the Federal Antimonopoly Service of the Urals District of July 3, 2000 in case No. F09-873/2000-GK; FAS of the Northwestern District of June 21, 2006 in case N A56-43996 / 2005.
<3>See: Decree of the Federal Antimonopoly Service of the West Siberian District of July 7, 1999 in case No. F04 / 1376-290 / A75-99.

First of all, it should be noted that a delict is an act, i.e. an action or omission committed by a delinquent (harm-doer). Thus, from the point of view of the theory of obligations, a delict is a legal fact, i.e. a specific, definite life circumstance, a fact of reality, with which the current laws and other legal acts associate the emergence, change or termination of civil rights and obligations, i.e. civil relations<1>. Therefore, from the point of view of the analysis of such a concept as "delict", it is fundamentally important, first of all, to decide on the question of what exactly the assessed institution is as a legal fact.

<1>See, for example: Civil Law: Textbook: In 2 vols. T. 1 / Resp. ed. E.A. Sukhanov. M.: BEK, 1998. S. 324.

The fact that a delict is a legal fact can be characterized as an action, no doubt. At the same time, the inaction of a person can also be, if all the necessary signs are present, assessed as a tort.

Thus, in one of the cases, satisfying the claim for damages in connection with the provision of payment benefits natural gas certain categories of citizens, the arbitration court indicated that the civil offense in this case was expressed in the illegal inaction of the Ministry of Finance of the Republic, which did not properly fulfill its obligations to compensate gas suppliers for losses incurred in connection with the provision of the above benefits<1>.

<1>See: Decree of the Federal Antimonopoly Service of the Urals District of December 4, 2003 in case No. F09-444/2003-GK.

By the way, the question of the will and its expression is one of the most difficult in tort theory. It is important to take into account that the designated obligatory presence of the will and its manifestation in the tort has one essential feature - the definition of what exactly such a will should be directed to. The will of the delinquent is actually focused primarily on the occurrence of that legal fact (event or action), which is further characterized by us as a delict, and secondly, depending on the assessment of the guilt of the delinquent, on the onset of certain legal consequences in the form of harm, but never to the creation of the most tortious non-contractual obligation to indemnify. As M. Bartoszek rightly points out in this regard, the obligation to compensate for harm always arises regardless of the will of the offender<1>.

<1>Bartoszek M. Decree. op. S. 92.

However, the event quite often takes place in tort obligations. In support of what has been said, here are a few examples from arbitration practice.

The plaintiff applied to the arbitration court with a claim for damages in the amount of the value of the burnt property. As it was established by the court, between the plaintiff and the defendant was concluded a contract for the sale of property. After the delivery and unloading of the goods, a fire broke out in the plaintiff's warehouse (an event - from the point of view of the theory of legal facts). According to the results of the examination, it was revealed that the cause of the fire was spontaneous combustion of the delivered goods due to the presence of an oxidizing agent (oil stains) on the floor of the container in which the goods were transported by railway. The court found that the ignition of the goods did not occur due to its natural properties, but in connection with violations committed by the defendant when loading the goods<1>.

<1>Decree of the FAS of the East Siberian District of September 20, 2000 N A19-11829 / 99-22-Ф02-1668 / 00-С2.

Another example is the infliction of harm as a result of snow or ice falling from the roof of a house (an event) that occurred as a result of the defendant's improper performance of his duties to maintain a residential building<1>.

In all these cases, the legal circumstance associated with the occurrence of harm is an event, although the latter in each of these situations has a relative character, i.e. direct, and decisively depends on the will of the respective subject of civil law.

It seems that in the situation under consideration, in fact, the action (inaction) that caused the occurrence of the event should be recognized as a tort (which is why we can only talk about relative events). The foregoing must also be taken into account when characterizing the causal relationship between the delict and the harm that has occurred: in this case, there will be no necessary sign of immediacy between the act that causes harm and its harmful consequences. The matter is that in the specified chain one more legal fact appears in such circumstances - relative event.

In view of the above, in the analyzed situation, it is necessary to proceed from the fact that the basis of tort liability, and hence the corresponding obligation to compensate for harm, is a complex legal structure, including not only the tort itself, expressed in this case in the form of an action or inaction, but also due to it a relative event that, although it exists as an independent legal fact, acts as a basis for tort liability only as an element of a complex legal structure.

Another issue that needs to be discussed in relation to the problem of analyzing a tort as a basis for tort liability is the question of general and special tort. Of course, in this case we are not talking about any special types of tort, but rather about the principles of assessing the tort in general and in each case. separate case.

The principle of general tort, which is the basis of tort law, is formulated in the literature in relation to tort liability as follows: "... according to this principle, harm caused by one person to another is in itself the basis for the emergence of an obligation to compensate for the harm caused." Consequently, the victim does not have to prove either the unlawfulness of the actions of the tortfeasor, or his guilt. Their presence is presumed. In this regard, the tortfeasor can be released from liability only by proving their absence. It is believed that the principle of general tort received its most complete expression in Art. 1382 of the French Civil Code, according to which "any act of a person that caused damage to another obliges the person through whose fault the damage occurred to compensate for the damage"<1>.

<1>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E.A. Sukhanov. S. 442.

The obligation to prove when considering a claim for compensation for harm should be redistributed accordingly: the victim is obliged to prove, first of all, the fact of causing harm to him and the existence of a causal relationship between the actions (inaction) of the tortfeasor and the harm that has occurred, but is free from the need to prove the wrongfulness and guilt of the delinquent ; the duty to prove their absence lies with the latter.

Thus, the principle of general tort means only that any harm is unlawful and accordingly characterizes the action (inaction) or event as a tort and is subject to compensation.

At the same time, today, both in theory and in judicial practice, it is generally accepted that the scope of the concept of "general delict" includes, as its mandatory elements, the wrongfulness of the behavior of the tortfeasor, the causal relationship between his unlawful behavior and harm, as well as the guilt of the tortfeasor<1>.

<1>See, for example: Decree of the FAS of the East Siberian District of October 25, 2005 N A19-6173 / 04-7-Ф02-5227 / 05-С2.

In our opinion, this point of view is fundamentally erroneous. The fact is that the listed signs constitute the conditions of tort liability, i.e. conditions for fulfilling the obligation of a delinquent (harm-doer) to suffer the adverse consequences of his unlawful behavior, resulting in harm to the victim. In other words, they do not at all constitute the content of the general tort, but determine those additional conditions, the presence of which, by virtue of the law, is mandatory for the onset of tort liability: the harm caused, according to the rule of the general tort, must always be compensated - this is precisely the principle that follows from the need for unconditional protection the rights and legitimate interests of participants in civil circulation and maintaining its stability. However, a specific person may be both obliged to such compensation and exempted from it due to the presence or absence of the above conditions of tort liability.

By the way, based on the foregoing, it can be argued that the concept of "special delict" does not and cannot exist at all.

The fact is that a delict as an action (inaction) or an event that results in harm cannot have either a general or a special character. It would be more correct in this case to speak of "special conditions of tort liability", under which there may be no separate General terms responsibility for causing harm (for example, guilt in case of causing harm by a source of increased danger; Art. 1079 of the Civil Code of the Russian Federation) or additional ones (special conditions characterizing the guilt of the victim or his property status; Art. 1078, 1083 of the Civil Code of the Russian Federation). The harm caused itself may be subject to compensation even in the case when the delinquent (the tortfeasor) is not responsible for it due to the absence of the necessary conditions for such liability (for example, delinquency): this can best be demonstrated in cases where the harm was caused to a minor or disabled citizen. Given the above, the following, for example, interpretation of the terms of tort law looks incorrect: "... the specified rule of law contains a special tort in the form of innocent liability of the plaintiff ..."<1>.

<1>Resolution of the FAS of the East Siberian District of June 14, 2000 in case N A19-12484 / 99-14-Ф02-1020 / 00-С2.

Illegality of actions to cause harm as a condition of tort liability

It is known that actions as legal facts can also be subjected to a dichotomous division and, on the basis of their compliance with the norms of objective law, are classified into lawful and unlawful.

The general opinion is that a tort is always a wrongful act. Moreover, "the wrongfulness of the conduct of the tortfeasor"<1>is considered in judicial practice as a mandatory and integral property of a tort and tort liability. As a general rule, based on a literal understanding of paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation, harm caused by lawful actions is not subject to compensation. Relevant examples are quite numerous in judicial practice. So, in one of the cases, the court directly stated that “the harm caused by lawful actions is not subject to compensation. The case materials established that ... the customs (the tortfeasor. - L.K.) acted in accordance with the current ... legislation ..."<2>.

<1>Determination of the Supreme Arbitration Court of the Russian Federation of March 19, 2008 N 2962/08.
<2>Decree of the Federal Antimonopoly Service of the Moscow District of February 18, 2002 in case No. KG-A40 / 448-02.

Thus, the harm caused by the delinquent, while complying with the latter norms and requirements of objective law, is not recognized by the current legislation as subject to compensation.

There are many cases of establishing the obligation to compensate for harm caused by lawful actions. First of all, we should mention the compensation for losses caused by securing a claim, which is quite common in practice. Article 98 of the Arbitration Procedure Code of the Russian Federation provides that the defendant and other persons who have suffered losses by securing the claim, after the entry into force of the judicial act of the arbitration court on the refusal to satisfy the claim, have the right to demand from the person applying for securing the claim, compensation for losses by filing an appropriate claim. Thus, in one of the cases, the Supreme Arbitration Court of the Russian Federation indicated that it follows from the materials of the case and the courts established that as a result of taking measures to secure a claim at the request of the defendant in another case, the plaintiff and his creditors suffered losses. With reference to paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation and Art. 98 Arbitration Procedure Code of the Russian Federation this reason claim for damages granted<1>.

Further, in a number of examples of torts that do not have signs of illegality, one can also mention the Law of the Russian Federation of May 14, 1993 N 4979-1 "On Veterinary Medicine"<1>(as amended on July 21, 2007). According to Art. 19 of the said Law when eliminating foci of especially dangerous animal diseases by decisions of higher executive bodies state power subjects Russian Federation Animals and (or) livestock products may be confiscated with payment to the owner of the animals and (or) livestock products of the cost of animals and (or) livestock products at the expense of the budget of the relevant subject of the Russian Federation and issuance to this owner of the appropriate document on such seizure.

<1>Gazette of the SND and the Armed Forces of the Russian Federation. 1993. N 24. Art. 857.

The delict, consisting in the commission of lawful acts, is also mentioned in Art. 242 of the Civil Code of the Russian Federation ("Requisition"), according to which in cases of natural disasters, accidents, epidemics, epizootics and under other circumstances of an emergency nature, property in the interests of society, by decision of state bodies, can be withdrawn from the owner in the manner and on conditions that established by law, with the payment to him of the value of this property.

Another example: the case under Art. 57 of the Land Code of the Russian Federation<1>, according to which owners, land users, landowners and tenants of land plots are compensated for losses, including lost profits, caused by the lawful seizure of land plots for state or municipal needs.

<1>SZ RF. 2001. N 44. Art. 4147.

All of the above allows us to argue that tort liability can also arise as a result of an unlawful action (inaction), which was originally determined by the legal nature tort, and actions (inaction) lawful, i.e. conforming to the requirements and regulations of the law and other legal acts.

Any harm is a priori unlawful and subject to compensation, since it represents a violation (destruction, termination or derogation) of the subjective rights and legitimate interests of other persons, which, from the point of view of the basic principles of civil law, is unacceptable, with the exception of the possible restriction of civil rights on the basis of federal law and only to the extent that this is necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state (Article 1 of the Civil Code of the Russian Federation). The theoretical expression of this rule is the so-called principle of general tort. In other words, any legal fact, the result of which is the infliction of harm, is presumed to be unlawful and should be recognized as a tort. Therefore, the circumstance that in the event of a lawful infliction of harm (in the case of a lawful tort) no tort liability arises and the harm is not subject to compensation is an exception and it is precisely as such an exception that it is enshrined in paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation.

In other words, as an exception, one should consider not those cases in which the harm caused by lawful actions is subject to compensation, but those in which such harm is not subject to compensation.

It seems that from the point of view of the tort theory, "wrongfulness" should be understood broadly, as a concept that covers the violation of not only the norms of objective law, but also any subjective civil rights and legitimate interests of participants in the turnover. And the delict itself, being, in view of what has been said above, is always unlawful, from the point of view of violation of the norms of objective law, can be characterized both as corresponding to such norms and as an act (action or inaction) contrary to them.

In support of the foregoing, the provisions of Art. 1067 of the Civil Code of the Russian Federation ("Infliction of harm in a state of emergency"). According to the said article, harm caused in a state of extreme necessity, i.e. to eliminate the danger that threatens the inflictor of harm himself or other persons, if this danger could not be eliminated by other means under the given circumstances, must be compensated by the person who caused the harm.

Thus, the legislator, in fact, recognized that the delict (infliction of harm) in this case is unlawful, and therefore the harm is subject to compensation, despite the fact that by virtue of the direct assumption of Art. 14 of the Civil Code of the Russian Federation, self-defense of civil rights is allowed, provided that the methods of self-defense must be proportionate to the violation and not go beyond the limits of the actions necessary to suppress it. The reason for such a normative decision can only be that in reality any delict is illegal, since the harm itself is also illegal, in any case violating the subjective civil rights and (or) legitimate interests of the victim.

Harm as a condition of tort liability (concept and characteristics)

The significance of harm from the point of view of tort liability is so great that it is very often erroneously characterized even as its basis. As a rule, “harm as the basis of tort liability is understood as property or non-property consequences that are unfavorable for a subject of civil law, resulting from damage or destruction of property belonging to him, as well as as a result of causing injury or death to a citizen ( to an individual)" <1>. At the same time, the concept of "damage" is assessed as a synonym for the word "harm", and loss is understood as a monetary value of property damage, i.e. the same harm, only expressed in money<2>.

<1>
<2>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E.A. Sukhanov. M.: Volters Kluver, 2004. S. 439.

The above traditional point of view seems to us not quite consistent with both the tort theory and the established practice of applying the current legislation.

First of all, despite the apparent simplicity of the concept of "harm", its current interpretation in the theory of civil law is completely ambiguous. In particular, the noted is manifested in the issue of property damage. On the one hand, property damage refers only to the consequences that have arisen as a result of damage or destruction of the property of the victim, on the other hand, any negative consequences that occur when a property right or benefit of a person is violated, which can be expressed not only in damage or loss of a thing, but and, for example, in "not receiving the income that the victim would have received if there had not been a harmful act"<1>.

<1>Civil law. Part two: Textbook / Otv. ed. V.P. Mozolin. S. 358.

The characteristic of property damage in judicial practice is also of interest. Most often, property damage is assessed as the expenses actually incurred by the victim, regardless of how the actual damage caused to property is assessed, i.e. regardless of how much the value of the damaged property has decreased.

For example, in one of the cases considered by the Supreme Arbitration Court of the Russian Federation, the defendant in the case compensated the plaintiff for the damage caused to the plaintiff's car, taking into account the wear and tear of the affected vehicle, i.e. based on how much the value of the damaged property has decreased. The Supreme Arbitration Court of the Russian Federation, pointing out the correctness of recovering from the defendant the amount of the plaintiff's actual expenses, which turned out to be higher than the amount of the reduction in the value of the damaged property, noted that there was no need to take into account the state "in which the property was at the time of the damage. Such a restriction would be contrary to the provision of civil law for full damages"<1>.

<1>Determination of the Supreme Arbitration Court of the Russian Federation of February 28, 2008 N 17730/07 "On the refusal to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation."

Thus, a municipal enterprise applied to the arbitration court of the Russian Federation, represented by the Ministry of Finance of the Russian Federation, with a claim for reimbursement of expenses for the transportation of certain categories of citizens at reduced rates. The court of first instance dismissed the claim. The courts of appeal and cassation upheld the decision of the court. At the same time, refusing to satisfy the claim, the courts proceeded from the following: "... the company did not document the amount of actually incurred expenses for the transportation of the preferential category of passengers, since according to paragraph 5 of Article 790 of the Civil Code of the Russian Federation, it is the carrier's expenses that are subject to reimbursement, and not the cost (price) of discounted tickets, on the basis of which the amount of the claim was actually calculated ... the amount of the claim was calculated based on the maximum fare (cost) of the ticket for the carriage of passengers, and not on the actual costs incurred"<1>.

The Supreme Arbitration Court of the Russian Federation considered the judicial acts held in the case to be canceled and, in particular, indicated: "... organizations that directly provided services to consumers free of charge or at a reduced price have the right to receive compensation from a proper public legal entity in the form of fees not received from consumers ... The Russian Federation, having established by law ... benefits in the form of free travel, assumed the obligation of the transport company to fully reimburse the costs of providing these benefits at the expense of the federal budget"<1>. Thus, in the case under consideration, the court found it necessary to assess the damage not on the basis of the actual costs incurred by the carrier in connection with the transportation of passengers entitled to reduced fares, but on the basis of the ticket sales price not received by the carrier in full. However, such damage cannot be regarded as a lost profit - this is real damage, since the violation of the plaintiff's right is not related to the transportation of passengers at reduced rates, but to the fact that the amount of the fare not received by the carrier was not properly reimbursed from the treasury due to the illegal inaction of the competent state body .

The concept of "damage" can probably be recognized as a complete synonym for the concept of "harm", with the same content indicated above. Thus, in one of the cases of the Supreme Arbitration Court of the Russian Federation, it was directly indicated that "the concept of "damage" ... covers both damage determined according to the rules of Article 15 of the Civil Code of the Russian Federation, and adverse consequences associated with infringement of honor, dignity and business reputation"<1>, i.e. may have both property and non-property content.

<1>Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83 "On some issues related to the application of part 3 of article 199 of the Arbitration Procedure Code of the Russian Federation".

At the same time, it is certainly impossible to regard losses as a simple designation of the monetary value of property damage or damage, since losses are, of course, a broader concept. And the main thing that you need to pay attention to in the question of the concept of "losses" in its relationship with the concept of "property damage" is the fact that losses, in addition to the actual damage in its valuation, also include income not received by the victim, in other words , lost profits. The inadmissibility of covering the concept of "harm" also with lost profits is explained by the fact that harm in any case is expressed in the termination or derogation of the property or personal non-property subjective civil rights of a person or his intangible benefits. The existence of a subjective civil right to receive income, which is possible in itself, means that its violation will entail the infliction of real damage to the victim; lost profit - a consequence of a violation of the legitimate interest of a participant in the turnover, not secured by a counter subjective obligation, which can be most clearly seen, in particular, on the example of an abstract lost profit<1>.

<1>On this occasion, see, for example: Egorov A.V. Lost Profits: Problems of Theory and Contradictions of Practice // Losses and the practice of their compensation: Collection of articles / Ed. ed. M.A. Rozhkov. M.: Statut, 2006. S. 78.

Finally, another issue that we believe is important to discuss in the framework of the analysis of tort liability is the question of the relationship between such concepts as "delict" and "debt". The term itself ("debt") is extremely widely used by civil law in relation to a variety of relations. In general, it is understood as any obligation of the debtor (to transfer property, perform work, pay money, etc., or refrain from a certain action), although most often debt in civil law is a monetary obligation.

The concept of "duty" also has a general philosophical meaning, within which "duty" is an ethical category that expresses the moral task of a certain individual or group of persons (community) in specific social conditions, which becomes an internally accepted obligation for them. It is also interesting that the original meaning of the Latin "culpa" (in translation from Latin - guilt, which is one of the key concepts of tort law) was precisely "debt (expressed in monetary or other material equivalent)" (= aes alienum), whence the appearance of the meanings "(objective) need to repay borrowed" > "consciousness of the need to repay the debt, (internal) state of the debtor" should be assumed; surviving texts record the history of the word...: "responsibility (for doing something wrong)..." > "guilt"... > "guilt"<1>.

<1>Solopov A.I. Etymology and original meaning of the Latin culpa // Ancient law. IVS ANTIQVVM. N 1(3). 1998. M.: Spark, 1998. S. 83.

Interestingly, based, for example, on the general meaning of paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, rights may arise for participants in the turnover, including regardless of their will, as is the case, in particular, in the case of a tort and the emergence of an obligation as a result of causing harm, and hence the corresponding right of claim on the part of the victim. However, the emergence of an obligation against the will, as a general rule, is impossible. The delict is characterized by the peculiarity that when it is committed, the obligation to compensate for harm (debt) arises by virtue of the law, regardless and even against the will of the delinquent. It is precisely this feature that characterizes debt within the framework of tort legal relations: it is a consequence of a tort, having the character of a civil law obligation that arises on the side of the delinquent and regardless of the will of the latter, i.e. tort liability.

In addition to debt (in the form of an obligation to compensate for harm, which is the content of tort liability), the consequence of a delict for a delinquent may also be property enrichment arising on his side. As correctly noted in the literature, "the law does not in any way imply the impossibility of imposing liability on a person under the rules of torts, if he has derived a property benefit for himself, causing harm to another for this. All our long-term judicial practice contradicts this understanding of obligations from causing harm"<1>. However, for a correct assessment of the rights and obligations in this case, the orientation of the will of the participants in the relationship is important first of all - the latter consists precisely in causing harm, even if for the purpose of enriching the delinquent, but not vice versa.

<1>Commentary on the Civil Code of the Russian Federation (Part Two) / Ed. O.M. Kozyr, A.L. Makovsky, S.A. Khokhlova. M.: MTsFER, 1996. S. 236.

For the most complete analysis of the concept of "harm" and the assessment of its place and role as a condition of tort liability, it is necessary, in our opinion, to discuss the question of, we will say, the depth of the property tort, i.e. not about the nature, but about the degree of the harm caused, determined as the ratio of the cost of the damage caused to the total value of the property. An analysis of this issue can also be of great practical importance, since the specifics of compensation for harm often depend on the depth of the tort.

A property tort can be expressed in the destruction of property, i.e. in the complete cessation of its material existence, in damage to property, which excludes the possibility of further use of such property for its intended purpose and, consequently, the extraction of useful properties and qualities from it, as well as in such damage that its further use does not exclude. At the same time, it should be taken into account that in the event that property is completely lost as a result of damage, a claim cannot be made for the recovery of the cost of restoring it.

Thus, an individual entrepreneur filed a lawsuit against the company with an arbitration court for compensation for damage caused to the property (car) of the plaintiff as a result of a traffic accident that occurred through the fault of the driver of the defendant's car. The claim was granted, however, the amount recovered for repairs damaged car, turned out to be twice the full cost of a car of the same brand and the same quality. This circumstance gave rise to an appeal against the decision of the court of first instance.

The Court of Appeal, after evaluating all the materials and arguments of the parties available in the case, came to the conclusion that the disputed car was lost (disposaled) by the plaintiff, and therefore its restoration is impossible. Considering that the plaintiff made claims for the recovery of costs for the repair of property that was actually lost, and not for reimbursement of the cost of this property, the court considered the stated claim unfounded and dismissed it.

The court of cassation, canceling the decision of the appellate instance, indicated that by virtue of Art. 15 of the Civil Code of the Russian Federation, the plaintiff rightfully demanded damages in the amount of expenses that he would have to make to restore the violated right. Since the plaintiff, in accordance with the requirements of Art. 1064, 1079 of the Civil Code of the Russian Federation, proved the infliction of harm to his property, the unlawfulness of the behavior of the tortfeasor and the causal relationship between such behavior and the harm that occurred, and the defendant did not provide evidence of the absence of his guilt, the refusal to satisfy the stated claim, according to the court of cassation, was made unlawfully. At the same time, the court of appeal did not give a proper legal assessment to the conclusions of the court of appeal that the damaged car was disposed of by the plaintiff and the alleged costs of its repair have no real basis.

The Supreme Arbitration Court of the Russian Federation, canceling the judicial acts that took place in the case, in particular, indicated that the plaintiff had to prove that the alleged costs of repairing the property were real, i.e. there is a thing for the restoration of which they will incur such expenses: "In the event of a complete loss of property that has been damaged, the claim for compensation for the costs of its restoration cannot be considered as having a legal basis"<1>.

Let us give another example illustrating the named problem of the depth of the tort with reverse side. So, the plaintiff recovered from the defendant in the order of compensation for damage the cost of damaged property. When considering the case, the court found that the property remained in the possession of the plaintiff and the latter continues to actually use it for its intended purpose. Considering these circumstances, the court dismissed the claim and drew attention to the following: "... in such a situation, the damage is compensated in the amount by which the value of the property has decreased. In the amount of the value of the property, the damage is compensated in case of its loss or unsuitability for its intended use from determination of the legal fate of damaged property in order to prevent unjust enrichment of the victim"<1>.

The legislator does not offer a solution to the problem, but the need for it today is obvious. The only means currently available to the participants in the turnover in resolving this issue is the contract, in particular, the inclusion of relevant conditions in the insurance contract. However, contractual regulation is not always possible. In any case, in our opinion, when determining the legal fate of damaged property (in the case of compensation to the victim of its full value), one should proceed from the inadmissibility of unjust enrichment of the victim and therefore, if the property cannot be used for its intended purpose as a result of damage, but is not completely destroyed and by virtue of this, continues to represent some value, the person obliged to compensate for the damage has the right either to demand the transfer of such property to him, or to reduce the amount of compensation by the estimated value of such damaged property or its corresponding part.

These are some of the controversial issues related to the basis and conditions of tort liability.

Controversial issues of the subject composition of the tort obligation

When causing damage to property in these situations, the question arises as to who actually acquires the right to compensation for damage in this case: the direct owner of the property or its owner (a person endowed with respect to this property by another right in rem)?

Let's take an example. OAO "Altai Tire Company" filed a lawsuit against CJSC "Barnaulmetallurgmontazh" in the Arbitration Court for the recovery of the amount of money previously paid by the plaintiff in favor of OAO "Altai Tire Plant" by way of recourse. As it was established by the case materials, a lease agreement was concluded between the plaintiff and Altai Tire Plant OJSC, under the terms of which an industrial water pipeline owned by the plaintiff was transferred to the temporary possession and use of Altai Tire Plant OJSC. In the course of excavation by the defendant and as a result of a gross violation of the rules for their implementation, the specified water supply was damaged.

In connection with these events and guided by the norms of civil law on lease, JSC "Altai Tire Plant" filed a lawsuit against JSC "Altai Tire Company" to the arbitration court for compensation for losses (including lost profits) associated with the restoration of leased property, downtime of personnel . The plaintiff recognized these requirements, and later filed a lawsuit against the direct tortfeasor - CJSC Barnaulmetallurgmontazh, determining the amount of damage caused based on the costs incurred by the plaintiff in connection with payments to the lessee (JSC Altai Tire Plant).

By the decision of the court of first instance, left unchanged and by the court of appeal, the claim was satisfied. However, the court of cassation dismissed the claim on the following grounds: “As can be seen from the case file, the water supply system owned by OJSC Altai Tire Company was transferred by right of ownership to OJSC Altai Tire Plant under a lease agreement ... Damage was caused to OJSC Altai Tire Plant” (to the tenant. - L.K.) due to damage to the water supply by the defendant. By virtue of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation, damage caused to the property of a legal entity is subject to compensation in full by the person who caused the damage. By law, the obligation to compensate for damage may be assigned to the person , which is not the cause of harm ... Relationships of JSC "Altai Tire Plant" and JSC "Altai Tire Company", arising from the lease agreement, are not related to obligations due to causing harm ... The court found that the person who suffered the harm is JSC "Altai Tire Plant" <1>(highlighted by me. - L.K.).

<1>

From these positions, the logic of the court is quite understandable and justified. However, in this case, the tenant is also protected by contractual mechanisms, since, firstly, he has the right to lease property in a condition that meets the terms of the contract and the purpose of the property (Article 611 of the Civil Code of the Russian Federation), and, in continuation of this general right, is endowed the right to demand the elimination of deficiencies, reduction of rent, termination of the contract, and also the right to withhold the amount of expenses incurred by him in connection with the elimination of deficiencies from the rent (Article 612 of the Civil Code of the Russian Federation), and secondly, the tenant is also protected by the obligation established by law the lessor to make major repairs in relation to the leased property (clause 1, article 616 of the Civil Code of the Russian Federation).

In other words, on the one hand, the owner, who is certainly interested in the safety of his property, is protected by the tenant's obligation to return the property upon termination of the contract in good condition, on the other hand, the tenant, who is also interested in ensuring the safety of the same property located in his direct ownership is also protected by liability instruments, i.e. statutory obligations of the lessor (owner) for the maintenance of the leased property and the elimination of deficiencies.

Of course, in the situation we are considering, both participants in the lease relationship are interested in preserving property: both the landlord and the tenant. The first - since the property belongs to him by right of ownership and is one of the components of his property sphere, the second - since he is most often the direct owner, carries out use of the property and is interested in continuing to extract from such property useful properties and qualities. And, in our opinion, it would not be right to pose the question in such a way that the decision determines which of the participants in the legal relations being assessed is more interested in preserving such property and, accordingly, who has the right to compensation for damage caused to property.

It seems that from the point of view of assessing the economic interests of the participants in the turnover, in this case, both the lessee and the lessor should be recognized as victims, since both of them, although to a different extent, experience certain inconveniences in connection with damage to property belonging to them on the right of lease or ownership. . However, the law does not provide an unambiguous solution to the question of who exactly - the tenant or the landlord - should bear the property consequences of causing harm in this case.

In our opinion, the solution of this issue directly depends on who exactly the law entrusts with the risk of accidental loss or damage to property. Risk as a danger of adverse consequences of a property or personal nature, regarding which it is not known whether they will occur or not, is characterized in contractual relations as "the probability of losses or other expenses that are not subject to compensation at the expense of the other party to the obligation, the condition for the occurrence of which is not the fault of the person, on whose property sphere they will be assigned by law or contract"<1>. In other words, when deciding who exactly should be recognized as the victim of damage to property leased, it is necessary to rely on whose property area (lessor or tenant) the adverse consequences of such damage relate to, in other words, which of the two carries the risk of accidental loss or damage to property.

<1>Arkhipov D.A. Experience of the theory of risk in a contractual obligation // Actual problems of civil law. Issue. 9. M.: Norma, 2005. S. 399.

The indicated problem is solved in different ways in relation to different lease relations. So, according to Art. 669 of the Civil Code of the Russian Federation, which regulates financial lease (leasing) relations, the risk of accidental loss or accidental damage to the leased property passes to the tenant at the time of transfer of the leased property to him, unless otherwise provided by the financial lease agreement. In contrast to the general rule noted, the risk of accidental loss or damage to property is borne by the lessor<1>.

<1>Civil Law: Textbook: In 2 vols. T. 2. Polutom I / Ed. E.A. Sukhanov. M.: Wolters Kluver, 2004. S. 478.

Thus, as a general rule, the lessor bears the risk of accidental loss or damage to property; he, based on the logic adopted above, should be recognized as a victim in tort legal relations. In other words, in the case cited above, the court incorrectly concluded that if damage is caused to the leased property, the damage is considered to be caused to the tenant; damage in such a situation should be considered caused to the lessor as the owner of the property.

Based on the foregoing, we can draw two conclusions that are significant from the point of view of characterizing tort liability. Firstly, the landlord, not the tenant, should be recognized as the victim of damage to the leased property. Secondly, when determining the amount of harm caused, and hence the property equivalent of tort liability, only adverse consequences for the property sphere of the owner of the property should be taken into account, but not the impact of harm on the property status of the tenant.

However, in this state of affairs, the lessee may also suffer property non-contractual damage, primarily due to the impossibility of using the leased property and extracting useful qualities and properties from such property. In addition, when damage is caused to the leased property, damage may be caused to the property of the tenant itself (for example, separable improvements to the leased property or property located in the leased premises).

Thus, in one of the cases, the court recognized the tenant's claims for compensation for damage caused to the tenant's own property as a result of flooding of the leased premises as justified and subject to satisfaction.<1>. In the above cases, the harm expressed in the loss of profit of the tenant or in real damage caused to property owned by the tenant by right of ownership is subject to compensation by delinquent in favor of the tenant himself. Accordingly, claims for compensation for such damage can only be made by the tenant.

<1>Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of May 25, 2007 in case N A28-2558 / 2006-146 / 9.

The answer to this question should generally be positive. After all, the lessor is bound by the need to transfer to the tenant property suitable for the use established by the contract, due to the existing obligation, and the obligation to carry out major repairs in relation to this property, if the actual need so requires (Article 616 of the Civil Code of the Russian Federation). However, the lessor has no obligation to compensate for damage in the form of lost profits of the lessee or the damage caused to the lessee's own property, since these losses are not related to the lessor's failure to perform (improper performance) of its obligations under the lease agreement.

Thus, in the litigation we are considering at the very beginning of this section, the landlord should have been denied only part of his claims, namely those based on compensation for the tenant’s losses, expressed in downtime of his staff and the formation of lost profits, but not those that associated with the restoration by the tenant of the most damaged property (water supply). Accordingly, in this last part, the landlord had the right to turn to the delinquent with a claim for damages.

Based on the foregoing, it can be argued that the same actions of a delinquent can give rise to obligations to compensate for harm to various persons, while the subject composition of such obligations will be determined not only by the property of the damaged property belonging to one or another person, but also by the nature of the harm caused to the victim, and in particular, whether such harm is expressed in real damage or in lost profits.

The question of the right of the landlord in the situation under consideration to compensate the tenant for the damage caused in full and file a claim in recourse against the direct tortfeasor is not unambiguously resolved.

Thus, in the court dispute considered above, the court refused the lessor, who compensated the lessee for the damage caused in full (including the part determined by the costs of restoring the damaged property), referring to the fact that the lessor is not a person who is assigned by law obligation to pay damages. At the same time, the court indicated, in particular, that “by law, the obligation to compensate for harm may be imposed on a person who is not the tortfeasor (paragraph 2 of clause 1 of Article 1064 of the Civil Code of the Russian Federation). Relations of JSC Altai Tire Plant (tenant - L. K.) and OJSC "Altai Tire Company" (lessor. - L.K.), arising from the lease agreement, are not related to obligations due to damage. "Altai Tire Company"), which is not the tortfeasor, was not cited by the plaintiff. The court found that the person who was harmed was Altai Tire Plant OJSC. Considering the foregoing, the arbitration court reasonably concluded that the plaintiff did not prove which has the right of recourse (recourse) ... "<1>.

<1>Resolution of the Federal Antimonopoly Service of the West Siberian District of September 18, 2008 in case N F04-3012 / 2008 (9548-A03-16).

In our opinion, the decision of the court, which denies the landlord in the situation under consideration the right of a retroactive claim (recourse) against the delinquent, is fundamentally erroneous.

Firstly, when compensating the lessee for the harm caused, the lessor acted within the legal framework defined by the contractual relations of the lease, being guided by the obligations arising from such relations to carry out, as necessary, major repairs of the leased property and ensure the lessee the opportunity to use such property freely and in the manner established by the contract. .

Secondly, paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation does not directly establish such restrictions as the need to establish by law an obligation to compensate for harm in relation to a person who has actually compensated for harm and is not its causer (delinquent). According to the literal text of this norm, "a person who has compensated for the harm caused by another person (an employee in the performance of official, official or other labor duties, a person driving a vehicle, etc.) has the right to claim back (recourse) against this person in the amount of the compensation paid, unless another amount is established by law. Some doubts, however, may be raised by the specific examples given in the article and by the indication that all other cases covered by the norm being assessed must be "similar". We believe that the legislator, of course, could not proceed from the fact that any person, without any established legal grounds, has the right to compensate for the harm caused by a third party, and then apply to this latter in the manner of recourse. At the same time, the provision that the obligation of a person to compensate for the harm caused to the victim should follow only from the norms of the law governing obligations from causing harm is clearly not justified in any way. Such an obligation can equally follow from other norms of the law, and even from a contract. It is important that such a duty must have the necessary legal basis. Specific requirements for the characteristics of such a legal basis are not established by the legislator. In other words, in the situation we are considering with causing damage to leased property, as a general rule (unless otherwise provided by law or contract), the obligation of the landlord to compensate for the damage caused to the tenant (in terms of the costs of restoring damaged leased property) follows from Art. 612, 616 of the Civil Code of the Russian Federation, and therefore the lessor, who compensated for the harm caused in this part, should be recognized the right of a retroactive claim (recourse) against the delinquent.

In support of what has been said, we will give an example from another contractual area - a storage agreement.

It is known that, as a general rule, the custodian is liable to the bailor for the loss or damage to the property transferred for storage (Articles 891, 902 of the Civil Code of the Russian Federation). Despite the fact that the obligation of the custodian to compensate for the harm caused follows from contractual relations, judicial practice proceeds from the fact that in this case the custodian is endowed with the right to demand a return claim against the tortfeasor (delinquent).

In one of the cases, the judicial acts on which were subsequently canceled on a different basis, the court made precisely such conclusions. Thus, LLC "Master" filed a lawsuit against OAO "Metallopttorg" with a claim to the Arbitration Court for the recovery of a sum of money in accordance with paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation. LLC "Stroydom" was involved in the case as a third party. As it was established by the court, Metalloptorg OJSC (lessor) and Master LLC (tenant) signed a lease agreement for non-residential premises used by the tenant as warehouses, including for storage of property of Stroydom LLC. By virtue of the terms of the storage agreement, the custodian (LLC "Master") was responsible for the loss, shortage or damage of the goods accepted for storage, unless he proves that such loss, shortage or damage occurred due to force majeure circumstances or as a result of intent or gross negligence of the bailor. A fire broke out in the specified warehouse, as a result of which part of the goods stored in it was destroyed, the other part was damaged. LLC "Master", guided by the terms of the storage agreement, assumed the obligation to compensate for the damage caused to the bailor - LLC "Stroydom", after which, referring to the occurrence of a fire due to the fault of the lessor (JSC "Metallopttorg"), LLC "Master" went to court with a claim for damages by way of recourse on the basis of paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation. The courts of all instances, resolving this dispute, proceeded from the fact that the right of a retrospective claim for compensation for harm to the delinquent in the situation under consideration, undoubtedly, should be recognized by the custodian<1>.

<1>Resolution of the FAS of the Central District of October 5, 2006 in case N A14-23079/2005/726/9.

Thus, an authorized person in a tort obligation should be recognized as a subject endowed with a property interest in preserving damaged property.

These are some of the controversial issues of the institution of tort liability, regarding which there are no clear and unambiguous solutions in the practice and theory of civil law, the need for which nevertheless exists.

(Kuznetsova L. V.) (“Statute”, 2010)

DISPUTE ISSUES OF TORT LIABILITY

L. V. KUZNETSOVA

Kuznetsova Lyubov Viktorovna Ph.D. in Law, Deputy General Director for Legal Affairs of CJSC Slavimpex. She was born on December 27, 1976 in Samara. Graduated from the Faculty of Law of Samara State University. In 2003, she defended her dissertation at Kazan State University for the degree of candidate of legal sciences. Specialist in corporate and contract law. The main range of scientific interests: issues of implementation and protection of civil rights, corporate law, law of obligations. Author of more than 20 scientific publications in leading legal publications, including the monograph “Priority Rights in the Civil Law of Russia” (2007), articles “Protection of Preferential Rights in Civil Law: Problems of Theory and Law Enforcement” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2005), “Foreclosure on securities” (Law. 2006), “Exclusion of a participant from a limited liability company” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006), “Controversial issues of termination of an obligation by the coincidence of the debtor and creditor in one person” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008).

Liability for a tort, that is, non-contractual liability for an offense expressed in causing harm, is one of the types of civil liability along with, for example, contractual or conditional. At the same time, tort liability has the most pronounced universal character and serves as one of the most effective components of the mechanism for protecting absolute rights, primarily property rights. Despite the importance of such liability in the system of protection of civil rights, as well as the very detailed legislative regulation of the relations caused by it, to date, the institution of tort liability remains associated with a number of controversial and controversial problems and issues, the resolution of which is extremely important both for judicial practice and for a correct understanding of both tort and civil liability in general.

Tort Liability and Tort Liabilities: Controversial Correlation Issues

One of the complex issues of the topic under consideration so far remains the problem of the correlation of tort liability with obligations from causing harm, or, in other words, with tort obligations. In the literature and judicial practice, the concepts of "tort obligation" and "tort liability" are often confused, used as identical or interchangeable.<1>. In addition, tort liability is assessed by the courts as an element of the content of a tort obligation.<2>or, on the contrary, the obligation itself is considered as the content of liability for causing harm<3>. ——————————— <1>See, for example: Decisions of the Federal Antimonopoly Service of the North-Western District of July 22, 2003 in case No. F04 / 3371-629 / A70-2003; FAS of the East Siberian District of October 25, 2005 in case N A19-6173 / 04-7-F02-5227 / 05-C2 and others.<2>See, for example: Decrees of the Federal Antimonopoly Service of the Volga District of October 4, 2007 in case N A12-6718 / 06-C62; FAS of the North-Western District of June 24, 2008 in case N A56-21029 / 2007 and others.<3>Decree of the Federal Antimonopoly Service of the West Siberian District of October 6, 2003 in case N F04 / 5142-864 / A75-2003.

The basis of such uncertainty is the law itself. Within the framework of Ch. 59 of the Civil Code of the Russian Federation "Obligations as a result of causing harm" we are talking only about tort liability. It is generally accepted that the noted use of the concepts under consideration does not contain a contradiction, since it is due to their close relationship.<1>. As noted, the latter is due to the fact that it is tort liability that constitutes the content of the obligation from causing harm, since “in this case, liability does not supplement, does not “accompany” some other obligation (as in contractual liability), it constitutes the content of the offender’s obligation in obligation arising from the infliction of harm "<2>. ——————————— <1>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. M.: Wolters Kluver, 2005. S. 561.<2>There.

Without disputing the fact of an unconditional relationship that exists between tort liability and obligations from causing harm, one should, however, pay attention to the need to place emphasis in a different way on the issue of characterizing the correlation of these legal institutions. It is known that tort obligations (obligations from causing harm) are a kind of civil law obligations, by virtue of which one party (the tortfeasor, delinquent) is obliged to compensate the property damage caused by it to the other party (victim) (in kind or by compensation for losses), as well as in cases provided for by law, compensate for non-property (moral) damage, suspend or terminate production activities, and the victim has the right to demand from the harm-doer the fulfillment of this obligation<1>. ——————————— <1>See, for example: Civil Law: Textbook. Part two / Rev. ed. V. P. Mozolin. M.: Yurist, 2004. S. 312.

In such an obligation, the victim acts as a creditor, and the tortfeasor (delinquent) acts as a debtor. The basis for the emergence of a tort obligation, namely the civil obligation of the tortfeasor to compensate for the latter and the counter subjective right of the victim to demand appropriate compensation from the delinquent, by virtue of the provisions of subpara. 6 p. 1 art. 8 of the Civil Code of the Russian Federation, is the legal fact of causing harm or, otherwise, a tort. In turn, liability under civil law, including tort as its particular manifestation, is the application of coercive measures defined by law to the offender - sanctions or measures of responsibility, which are characterized exclusively by property content and are expressed in the imposition on the offender of additional obligations that have, from the point of view of view of the property sphere of the latter negative value. Thus, like civil liability in general, tort liability has as its actual content a property obligation, namely, the obligation of the delinquent to compensate the harm caused to the victim. In this case, the specified obligation acts as an integral element of the legal relationship for compensation for harm and arises, like the legal relationship as a whole, from the legal fact of its infliction (from the tort). In other words, it is more correct to say that property liability does not act as the content of an obligation from causing harm, but, on the contrary, it is necessary to characterize the obligation of the delinquent to compensate for harm, which is an element of the content of the corresponding tort obligation, as a tort liability imposed on the offender and, as a result, evaluate the latter precisely through the specified obligation, and not vice versa. The analyzed obligation to compensate for the harm caused cannot always be regarded as liability. So, the obligation to compensate for harm caused as a result of lawful actions (see paragraph 3 of Article 1064 of the Civil Code of the Russian Federation), as well as compensation for harm caused in a state of necessary defense or extreme necessity, cannot be assessed in the named capacity. In these cases, the legislator either completely refuses to compensate for the harm caused, or, by establishing an appropriate obligation, pursues the goal of compensating the victim for the losses he has suffered.<1>. ——————————— <1>Civil Law: Textbook. T. 2 / Ed. O. N. Sadikova. M.: INFRA-M, 2007. S. 451.

Thus, the concept of "tort liability" in its content is a characteristic (from the point of view of the institution of civil rights protection) of the obligation of the delinquent to compensate for the harm caused to him, which exists within the framework of the obligation to compensate for harm (tort obligation). Such a characteristic is characteristic of the named obligation throughout the development of the obligation, despite the fact that the obligation legal relationship itself, arising as a result of harm, may be subject to change, for example, when a right (claim) is assigned or a debt is transferred. In other words, the considered obligation of the delinquent should be characterized as a tort liability, regardless of the person to whom the corresponding obligation exists. Such a conclusion is conditioned by the content of the very concept of responsibility, defined as the imposition on the offender of additional obligations that have a negative property value for the tortfeasor. A tort obligation, as noted above, always develops as a consequence of the occurrence of a legal fact of causing harm. And from the very beginning of the existence of the obligation, the obligation of the delinquent to compensate for harm, which is the content of such an obligation, arises and is characterized in the future as the property liability of the tortfeasor for the offense committed by him. This duty can be performed by the delinquent voluntarily, otherwise the victim has the right to apply to the court with a claim for compensation for the damage caused. The possibility of such state coercion to fulfill the obligation is a quality inherent in almost any legal relationship of obligations, and is not related to the characterization of the obligation in question as a liability. The peculiarity is that the responsibility itself in this case acts as the essence and meaning of the obligation, which means that the judicial protection of the rights of the victim is carried out not in the form of bringing the delinquent to responsibility, but as coercion to fulfill the obligation in kind. However, the issue of liability for failure to fulfill a tort obligation can also be raised and resolved positively. However, unlike another type of non-contractual obligations, for example, obligations due to unjust enrichment (Chapter 60 of the Civil Code of the Russian Federation), in tort obligations, liability for the delinquent's failure to fulfill the obligation to compensate for harm (i.e., failure to implement the mechanism of property tort liability) is not directly established by law. So, according to, for example, paragraphs 1 and 2 of Art. 1107 of the Civil Code of the Russian Federation, a person who has unjustly received or saved property is obliged not only to return the latter to the victim, but also to reimburse him for all the income that he has derived, or to pay the victim interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) in the amount of unjust monetary enrichment from the time when the acquirer knew or should have known about his unjust enrichment. At the same time, the absence of a direct legislative fixation of the rule on the liability of the tortfeasor for failure to fulfill his obligation to compensate him does not cancel the possibility of applying such liability to him on the basis of the general provisions of civil law on compensation for losses (Article 15, 393 of the Civil Code of the Russian Federation) or the payment of interest for the use other people's money (Article 395 of the Civil Code of the Russian Federation). Thus, the damage caused can be compensated in kind (by providing a thing of the same kind and quality, correcting a damaged thing, etc.) or by compensating for the losses caused according to the rules of Art. 15 of the Civil Code of the Russian Federation. The problem is that, based on the meaning of Art. 1082 of the Civil Code of the Russian Federation, the question of in what form the harm caused should be compensated is decided solely at the discretion of the court in accordance with the specific circumstances of the case. This feature, of course, does not mean that the obligation to compensate for harm arises only by virtue of a court decision and as a result of its adoption (it is known that a court decision is recognized as an independent legal fact that can give rise to civil rights and obligations) (see subparagraph 3 of paragraph 1 article 8 of the Civil Code of the Russian Federation). The tort serves as the basis of the analyzed legal relationship. However, the specific form of compensation for harm, and hence the expression of the obligation that serves as the content of tort liability, is determined only by agreement (oral or written) of the participants in the obligation from causing harm.<1>or based on a court order. This, on the one hand, creates a theoretical problem of assessing such a form of “clarification” of the obligation of the delinquent, on the other hand, it causes insufficiently effective application of liability measures for violation of the obligation of the harm tortfeasor to compensate for it, which, of course, does not contribute to the implementation of the mechanism of tort liability. ———————————<1>Despite the wording of Art. 1082 of the Civil Code of the Russian Federation, which directly establishes that the question of the method of compensation for harm is decided by the court, it seems unacceptable to limit the ability of participants in civil legal relations to resolve this issue on the basis of a free agreement between the tortfeasor and the victim. This conclusion is all the more true because the law does not contain a direct or indirect prohibition on such a resolution of the named issue.

With regard to the first of the identified problems, it should be recognized that the obligation to compensate for harm, which is the content of tort liability, in itself arises directly from the tort as a fact of causing harm to another person (victim), but finds a change and (or) addition on the basis of other legal facts (transactions or court decisions). Such a change does not affect the essence and content of the obligation to compensate for harm, and hence tort liability, and, moreover, does not entail the emergence of a new obligation, however, it directly affects the form of implementation of responsibility (the way the obligation is fulfilled). With regard to the problem of liability for non-fulfillment of a tort obligation, it should be noted that the agreement of the parties to such an obligation or a court decision on the method of compensation for the harm caused determines not only whether the harm will be compensated in kind or by collecting damages, but also, importantly, the point in time from which the participants in the relevant legal relations have the right to count the emergence of the right of the victim to bring the delinquent to responsibility for failure to fulfill the obligation to compensate for harm and, of course, the emergence of the corresponding obligation of the tortfeasor. Thus, JSC "Penzadieselmash" (plaintiff) filed a claim with the arbitration court for the recovery of interest from JSC "Russian Railways" (defendant) for the use of other people's money on the basis of Art. 395 of the Civil Code of the Russian Federation. As follows from the materials of the case, the amount of damage caused by the shortage of cargo transported by the defendant was recovered from the defendant in favor of the plaintiff. The decision of the court to compensate for the harm caused came into force, but was not properly executed by the defendant. For the period of delay in the execution of the said court decision, the plaintiff filed a claim for the collection of interest for the use of other people's money. The court of cassation, canceling the judicial acts held in the case and satisfying the claims of the plaintiff, pointed out the fallacy of the conclusions of the lower courts. The courts of the first and appellate instances concluded that the decision to recover the damage caused to the plaintiff by the shortage was not the basis for the emergence of the obligation for the defendant to pay the cost of the shortage to the plaintiff, since they only established a circumstance confirming that the defendant's obligation to pay the cost of the shortage really takes place , while the obligation to pay the defendant the cost of the shortage arose, according to sub. 6 p. 1 art. 8 of the Civil Code of the Russian Federation, as a result of the defendant causing harm to the plaintiff. In connection with the above, the court of cassation, satisfying the plaintiff's requirements, referred to the provisions of Art. 395 of the Civil Code of the Russian Federation, as well as on paragraph 23 of the joint Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 13/14, according to which “when resolving disputes by courts related to the application of liability for causing harm, it must be taken into account that, on the basis of Article 1082 of the Code, upon satisfaction claims for compensation for damage, the court has the right to oblige the person responsible for causing the damage to compensate for the damage in kind (provide a thing of the same kind and quality, repair the damaged thing, etc.) or compensate for the losses caused (paragraph 2 of Article 15 of the Code). In the event that the court imposes on the party the obligation to compensate for the harm in money, a monetary obligation arises on the side of the tortfeasor to pay the amounts determined by the court. From the moment when the court decision entered into legal force, unless otherwise specified in the law, the creditor has the right to charge interest on the amount determined in the decision in case of delay in paying it by the debtor on the basis of paragraph 1 of Article 395 of the Code. Interest is also accrued in the event that the obligation to pay monetary compensation is established by agreement of the parties.<1>. ——————————— <1>Decree of the Federal Antimonopoly Service of the Volga District of February 26, 2008 in case N A55-5065 / 2007.

It seems that the conclusions of the courts of first instance and appellate instances in the above case are generally correct, with the exception that the court decision on compensation for the harm caused to the victim in terms of the possibility of applying certain statutory measures of responsibility for failure to fulfill the obligation to compensate it really has a right-establishing role , with the above content. As for the conclusions made in the judicial acts of the courts of higher judicial instances, in our opinion, it cannot be argued that in the case when the court imposes on the party the obligation to compensate for the harm in money, a new monetary obligation arises on the side of the tortfeasor to pay the amounts determined by the court. In this situation, the obligation of the delinquent to compensate for harm, of course, remains, acquiring a specific form of its expression and execution. No new obligation arises in this case, since this would require raising the question of the termination of the previously formed tort obligation or of its existence in parallel with a new obligation (monetary or obligation to provide certain property, perform certain work designed to eliminate the harm caused), which, definitely not happening. It has already been noted above that in the obligation due to the infliction of harm, the parties are the victim - the person who suffered the harm (creditor), and the debtor - the direct tortfeasor or the person responsible for the actions of the direct tortfeasor. For the debtor, the obligation imposed on him by law to compensate for the harm caused to the victim, being an integral element of the corresponding obligation, is at the same time a tort liability, i.e. property liability imposed on the tortfeasor for the offense committed by him. Such a description of the named obligation does not change, in essence, either its content or the features of its execution. However, given the fact that this obligation is also the content of property liability, it is necessary to answer the question of whether, for example, the rules of civil law on the transfer of debt (Article 391 of the Civil Code of the Russian Federation) apply to cases of its execution or whether the obligation can be fulfilled by a third party (Article 313 of the Civil Code of the Russian Federation). The transfer of the delinquent's debt to another (third) person should be recognized as possible and admissible. As in all other cases of debt transfer, in the situation under consideration such a transfer is carried out only with the consent of the creditor. 1 st. 391 of the Civil Code of the Russian Federation), which ensures the observance of the interests of the victim and taking into account the influence of the personality of the debtor. As for the possibility of fulfilling such a tortious obligation by a third party according to the rules of Art. 313 of the Civil Code of the Russian Federation, it should be borne in mind that in tort relations the identity of the debtor may be of significant importance to the victim, which is also reflected in the performance of this obligation. For example, the law allows for the possibility of taking into account the property status of the tortfeasor when determining the amount of compensation (Article 1083 of the Civil Code of the Russian Federation), if the harm was caused by a citizen through negligence. In the above, as well as in other cases when the identity of the delinquent may be of significant importance in terms of the peculiarities of imposing tort liability on him and its implementation, the fulfillment of the obligation that constitutes the content of such liability by a third party should be recognized as unacceptable. The basis for such a conclusion can also serve as paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, according to which "the fulfillment of an obligation may be entrusted by the debtor to a third party, if the obligation of the debtor to fulfill the obligation personally does not follow from the law, other legal acts, the terms of the obligation or its essence." Thus, the possibility of fulfilling the obligation to compensate for harm within the framework of a tort obligation by a third party must be assessed in each specific case and taking into account the specifics of causing harm and the essence of the said obligation. Finally, another important issue related to the problem of the correlation of tort liability and tort obligation is the question of how to compensate for the harm caused (about the specific form of implementation of tort liability), which has already been partially touched upon above. In the current legislation, unfortunately, there are no unambiguous answers to the questions of whether the delinquent, as a general rule, should compensate for the harm in kind or do it by compensating for the losses caused (in monetary form), and also whether the harm tortfeasor himself has the right to determine the specific method of his reparation or it can only be done with the consent of the victim. In our opinion, the obligation to cause harm in this respect meets the sign of alternativeness and therefore should be subject to the general regulation of the performance of an alternative obligation. So, according to Art. 320 of the Civil Code of the Russian Federation "a debtor who is obliged to transfer one or another property to the creditor or to perform one of two or more actions has the right to choose, unless otherwise follows from the law, other legal acts or conditions of the obligation." The application of this rule to tort obligations means that the tortfeasor, who voluntarily compensates for the harm caused, has the right to do this by any of the named methods permitted by law, and the victim, in turn, is obliged to accept such execution from the delinquent as proper. In other words, if the obligation of the delinquent to respond in a certain specific way is not enshrined directly in the agreement of the parties to the obligation and is not established by a court decision, the victim is not entitled to demand compensation for harm in kind if the harm is compensated by the delinquent in cash and vice versa, and also to refer to improper compensation for the harm caused .

Controversial issues of the basis and conditions of tort liability

Basis for tort liability. Speaking about the basis of tort liability, it must be taken into account that the very concept of “ground” is characteristic of the theory of civil relations and is defined as a legal fact that generates, changes or terminates civil rights and obligations. Therefore, it seems that the basis of tort liability, given the above on the relationship between the latter and the tort obligation, is a legal fact that gives rise to such an obligation and, as its key element, the delinquent's obligation to compensate for harm, which serves as the content of tort liability. Therefore, the basis of a tort obligation and tort liability is the same - an offense or a delict. The delict is one of the most ambiguous and underdeveloped concepts in the science of civil law today. The legal antiquity of the named legal phenomenon and its apparent simplicity ensured, unfortunately, the almost complete absence of a theoretical analysis of the concept of "delict", determining the place and role of the tort in non-contractual obligations, identifying certain types of torts, as well as constructing their system in modern civil law. At the same time, it is known that any knowledge that is not based on a thorough analysis of the cornerstone concepts and is devoid of a coherent system cannot be sufficiently theoretically complete and practically significant. The delict is one of those legal phenomena that belong to the deepest legal past of mankind. It is extremely widely believed that obligations in general, in all their current diversity, arose precisely from the tort. As noted on this occasion by the outstanding Russian civilist and researcher of Roman law I. A. Pokrovsky, “the oldest embryo of obligations lies in the area that we currently call civil offenses or torts; the contract as an independent source of obligations appears much later ... "<1>. With all the controversy of the specified, "tort" theory of the origin of obligations<2>the importance of the tort itself for the formation and development of civil law is difficult to deny. ———————————<1>Pokrovsky I. A. Main problems of civil law. M.: Statut, 1998. S. 236.<2>See, for example: Civil Law: Actual Problems of Theory and Practice / Ed. ed. V. A. Belova. M.: Yurayt-Izdat, 2007. S. 654 - 655.

Delict - from the Latin delictum, which literally means "error", "mistake", "lawlessness", "sin", "crime" or "misdemeanor". The authors of one of the most popular textbooks on Roman law, edited by I. B. Novitsky and I. S. Peretersky, along with the concept of “delicta”, also mention the term “maleficia”, which was probably used along with the first and is translated as “charm”, in meaning of various injuries or disturbances suffered by people, animals or property. Thus, in Roman law, "a delict is an unlawful act, an offense"<1>. ——————————— <1>Roman private law: Textbook / Ed. I. B. Novitsky and I. S. Peretersky. M.: Yurist, 2004. S. 327.

The noted is supported by other authors, for example, M. Kh. Khutyz<1>. Some scholars of Roman law define a tort as "arbitrary transgression of the law"<2>. M. Bartoszek characterizes the concept under consideration as follows: from the point of view of Roman law, a tort is an offense, causing harm to an individual, his family or property by violating a legal establishment or prohibition, as a result of which, regardless of the will of the offender, new rights and legal obligations arise<3>. ——————————— <1>Khutyz M.Kh. Roman private law: a course of lectures. M.: Bylina, 1994. S. 137.<2>See, for example: Mackenzie A. Roman law compared with the laws of France, England and Scotland / Per. from English. M.: Type. L. I. Stepanova, 1864. S. 256.<3>Bartoszek M. Roman law: concepts, terms, definitions / Per. from Czech. M.: Yurid. lit., 1989. S. 92.

Torts in Roman law were divided into delicta publica (public torts) and delicta privata (private torts). The former "were recognized as violating the interests of the state as a whole and entailed corporal punishment, and sometimes the death penalty - crimina capitalia - or a property penalty, which, as a general rule, came to the income of the state"<1>. Private torts, which are of interest to us, included an infringement exclusively on the interests of individuals, despite the fact that their consequences could be both fines or compensation for harm (property consequences) and corporal punishment.<2>. ——————————— <1>Roman private law: Textbook / Ed. I. B. Novitsky and I. S. Peretersky. S. 327.<2>See: Kosarev A.I. Roman law. M.: Yurid. lit., 1986. S. 32.

There was no general generic concept of a tort in Roman law. From the point of view of law enforcement, only certain types of torts were of interest, of which there were a fairly large number. These are, in particular: injuria (in translation from Latin - violence, insult, damage, damage: included all forms of encroachment on a person, on her life and health, other non-material benefits, as well as personal non-property rights); furtum (translated from Latin - robbery, deceit, fraud: a tort against the property rights of the victim); damnum injuria datum (in translation from Latin - loss created by causing damage: concerned the infliction of property damage, which, however, was not associated with enrichment for the delinquent); rapina (in translation from Latin - robbery: it was separated from furtum mainly in connection with the peculiarities of the responsibility of the delinquent); metus and dolus (translated from Latin - threat and deceit: a delict involving the infliction of property damage as a result of the named actions of the delinquent); fraus creditorum (translated from Latin - fraud against creditors: a special delict committed in order to hide the debtor's property from his creditors). In fact, there was no coherent system of torts, and even more so general criteria for classifying this or that act as torts in Roman law, although in the process of development public torts finally separated from private torts and completely moved into the sphere of regulation of criminal and administrative law, and private torts were formed as an independent and unified group of phenomena of an exclusively civilistic nature. The history of the development of ideas about the tort in the Middle Ages, and in the future, was determined by the active reception of Roman law, with the corresponding adaptation of local laws, customs and precedents.<1>. But, in essence, neither the progress of legislation nor the evolution of scientific thought has added almost anything to the solution of the problem of the concept of a tort, its criteria, or the system of torts. ———————————<1>For more on this, see: Vinogradov PG Roman Law in Medieval Europe. M.: Ed. A. A. Kartseva, 1910. S. 99.

It seems that we are forced to observe a similar situation to this day. Despite the intensive development of civil science and civil law, the doctrine of delict has not gone far forward since the days of Roman law. And first of all, we are talking about the lack of a single, universal and, to the necessary extent, a deep understanding of such a definition as “delict”. Today, the tort is defined in the scientific literature and practice in the same way as in the days of Roman law - as a harmful offense or the very fact of causing harm.<1>. In the practice of arbitration courts, in the vast majority of cases, the delict is regarded as an "offense"<2>, in some cases - as "unlawful infliction of harm"<3>. This emphasizes the legal result of the tort in the form of harm and specifically indicates its wrongfulness. However, such a meager definition, of course, does not give an idea of either the actual content of the evaluated concept, or the potential of its practical application. ———————————<1>See, for example: Civil Law: Textbook. Part two / Rev. ed. V. P. Mozolin. S. 355; Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. 2005. S. 437.<2>See, in particular: Decisions of the Federal Antimonopoly Service of the Urals District of July 3, 2000 in case No. F09-873/2000-GK; FAS of the Northwestern District of June 21, 2006 in case N A56-43996 / 2005.<3>See: Decree of the Federal Antimonopoly Service of the West Siberian District of July 7, 1999 in case No. F04 / 1376-290 / A75-99.

First of all, it should be noted that a delict is an act, i.e., an action or inaction committed by a delinquent (harm-doer). Thus, from the point of view of the theory of obligations, a delict is a legal fact, i.e. a specific, specific life circumstance, a fact of reality, with which the current laws and other legal acts associate the emergence, change or termination of civil rights and obligations, i.e. .civil relations<1>. Therefore, from the point of view of the analysis of such a concept as a "delict", it is fundamentally important to first of all decide on the question of what exactly the assessed institution is as a legal fact. ———————————<1>See, for example: Civil Law: Textbook: In 2 vols. T. 1 / Resp. ed. E. A. Sukhanov. M.: BEK, 1998. S. 324.

The fact that a delict is a legal fact can be characterized as an action, no doubt. At the same time, the inaction of a person can also be, if all the necessary signs are present, assessed as a tort. So, in one of the cases, satisfying the claim for damages in connection with the provision of benefits for paying for natural gas to certain categories of citizens, the arbitration court indicated that a civil offense was expressed in the case under consideration in the illegal inaction of the Ministry of Finance of the Republic, which did not properly fulfill its obligations to compensate gas suppliers of losses incurred in connection with the provision of the above benefits<1>. ——————————— <1>See: Decree of the Federal Antimonopoly Service of the Urals District of December 4, 2003 in case No. F09-444/2003-GK.

An event as a kind of legal fact, of course, in itself cannot act as a tort and thus be the basis of tort liability. A delict as a legal phenomenon matters only as a legal fact that can give rise to a legal connection between the delinquent and the victim, outside this ability there is no place for the delict itself. If we are talking about an event, i.e., a circumstance that does not depend on the will of people, in such relations there is not and cannot be a subject (delinquent), and therefore such an event itself, even if it is capable of giving rise to any other legal relations , cannot be assessed as a tort. Consequently, only an action (inaction) and its consequence, a relative event, can act as a tort - a legal fact. By the way, the question of the will and its expression is one of the most difficult in tort theory. It is important to take into account that the designated obligatory presence of will and its manifestation in a tort has one essential feature - the definition of what exactly such a will should be directed to. The will of the delinquent is actually focused primarily on the occurrence of that legal fact (event or action), which is further characterized by us as a delict, and secondly, depending on the assessment of the guilt of the delinquent, on the onset of certain legal consequences in the form of harm, but never to the creation of the most tortious non-contractual obligation to indemnify. As M. Bartoszek rightly points out in this regard, the obligation to compensate for harm always arises regardless of the will of the offender<1>. ——————————— <1>Bartoszek M. Decree. op. S. 92.

However, the event quite often takes place in tort obligations. In support of what has been said, here are a few examples from arbitration practice. The plaintiff applied to the arbitration court with a claim for damages in the amount of the value of the burnt property. As it was established by the court, between the plaintiff and the defendant was concluded a contract for the sale of property. After the delivery and unloading of the goods, a fire broke out in the plaintiff's warehouse (an event from the point of view of the theory of legal facts). According to the results of the examination, it was revealed that the cause of the fire was spontaneous combustion of the delivered goods due to the presence of an oxidizing agent (oil stains) on the floor of the container in which the goods were transported by rail. The court found that the ignition of the goods did not occur due to its natural properties, but in connection with violations committed by the defendant when loading the goods<1>. ——————————— <1>Decree of the FAS of the East Siberian District of September 20, 2000 N A19-11829 / 99-22-Ф02-1668 / 00-С2.

In another case, the court recognized as lawful and justified the claim addressed to the owner of the leased building for compensation for damages caused by water flooding (event) of the premises occupied by the plaintiff's tenant's enterprise, and regarded such a claim as a claim from a tort<1>. ——————————— <1>Resolution of the Federal Antimonopoly Service of the Urals District of July 3, 2000 in case No. F09-873/2000-GK.

In all these cases, the legal circumstance with which the occurrence of harm is associated is an event, although the latter in each of these situations has a relative, i.e. direct, character, and decisively depends on the will of the relevant subject of civil law. It seems that in the situation under consideration, in fact, the action (inaction) that caused the occurrence of the event should be recognized as a tort (which is why we can only talk about relative events). The foregoing must also be taken into account when characterizing the causal relationship between the delict and the harm that has occurred: in this case, there will be no necessary sign of immediacy between the act that causes harm and its harmful consequences. The fact is that in this chain, in such circumstances, one more legal fact appears - a relative event. In view of the above, in the analyzed situation, it is necessary to proceed from the fact that the basis of tort liability, and hence the corresponding obligation to compensate for harm, is a complex legal structure, including not only the tort itself, expressed in this case in the form of an action or inaction, but also due to it a relative event that, although it exists as an independent legal fact, acts as a basis for tort liability only as an element of a complex legal structure. Another issue that needs to be discussed in relation to the problem of analyzing a tort as a basis for tort liability is the question of general and special tort. Of course, in this case we are not talking about any special types of tort, but rather about the principles of assessing the tort as a whole and in each individual case. The principle of general tort, which is the basis of tort law, is formulated in the literature in relation to tort liability as follows: "... according to this principle, harm caused by one person to another is in itself the basis for the emergence of an obligation to compensate for the harm caused." Consequently, the victim does not have to prove either the unlawfulness of the actions of the tortfeasor, or his guilt. Their presence is presumed. In this regard, the tortfeasor can be released from liability only by proving their absence. It is believed that the principle of general tort received its most complete expression in Art. 1382 of the French Civil Code, according to which “any act of a person that caused damage to another obliges the person through whose fault the damage occurred to compensate for the damage”<1>. ——————————— <1>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. S. 442.

In other words, this principle expresses the fact that any harm is assumed to be unlawful and subject to compensation. For us, it is important that from the principle under consideration it directly follows that the very fact of causing harm characterizes the action (inaction) or event, as a result of which the harm occurred, as a tort. This circumstance determines the presumption of the wrongfulness of the tort, but, of course, does not prejudge the question of the guilt of the tortfeasor or the existence of a causal relationship between the actions (inaction) of the tortfeasor and the harm itself. The obligation to prove when considering a claim for compensation for harm should be redistributed accordingly: the victim is obliged to prove, first of all, the fact of causing harm to him and the existence of a causal relationship between the actions (inaction) of the tortfeasor and the harm that has occurred, but is free from the need to prove the wrongfulness and guilt of the delinquent ; the duty to prove their absence lies with the latter. Thus, the principle of general tort means only that any harm is unlawful and accordingly characterizes the action (inaction) or event as a tort and is subject to compensation. At the same time, today, both in theory and in judicial practice, it is generally accepted that the scope of the concept of “general delict” includes, as its mandatory elements, the wrongfulness of the behavior of the tortfeasor, the causal relationship between his unlawful behavior and harm, as well as the guilt of the tortfeasor<1>. ——————————— <1>See, for example: Decree of the FAS of the East Siberian District of October 25, 2005 N A19-6173 / 04-7-Ф02-5227 / 05-С2.

In our opinion, this point of view is fundamentally erroneous. The fact is that the listed signs constitute the conditions of tort liability, i.e., the conditions for fulfilling the obligation of the delinquent (the tortfeasor) to endure the adverse consequences of his unlawful behavior, resulting in harm to the victim. In other words, they do not at all constitute the content of the general tort, but determine those additional conditions, the presence of which, by virtue of the law, is mandatory for the onset of tort liability: the harm caused, according to the rule of the general tort, must always be compensated - this is precisely the principle that follows from the need for unconditional protection the rights and legitimate interests of participants in civil circulation and maintaining its stability. However, a specific person may be both obliged to such compensation and exempted from it due to the presence or absence of the above conditions of tort liability. By the way, based on the foregoing, it can be argued that the concept of "special delict" does not and cannot exist at all. The fact is that a delict as an action (inaction) or an event that results in harm cannot have either a general or a special character. It is more correct in this case to speak of “special conditions of tort liability”, under which there may be no separate general conditions of liability for causing harm (for example, guilt in case of causing harm by a source of increased danger; Article 1079 of the Civil Code of the Russian Federation) or there may be additional (special conditions characterizing guilt of the victim or his property status; Articles 1078, 1083 of the Civil Code of the Russian Federation). The harm caused itself may be subject to compensation even in the case when the delinquent (the tortfeasor) is not responsible for it due to the absence of the necessary conditions for such liability (for example, delinquency): this can best be demonstrated in cases where the harm was caused to a minor or disabled citizen. Taking into account the above, the following, for example, interpretation of the terms of tort law looks incorrect: “... the specified rule of law contains a special tort in the form of innocent liability of the plaintiff ...”<1>. ——————————— <1>Resolution of the FAS of the East Siberian District of June 14, 2000 in case N A19-12484 / 99-14-Ф02-1020 / 00-С2.

Illegality of actions to cause harm as a condition of tort liability

It is known that actions as legal facts can also be subjected to a dichotomous division and, on the basis of their compliance with the norms of objective law, are classified into lawful and unlawful. The general opinion is that a tort is always a wrongful act. Moreover, "the wrongfulness of the conduct of the tortfeasor"<1>is considered in judicial practice as a mandatory and integral property of a tort and tort liability. As a general rule, based on a literal understanding of paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation, harm caused by lawful actions is not subject to compensation. Relevant examples are quite numerous in judicial practice. Thus, in one of the cases, the court directly stated that “harm caused by lawful actions is not subject to compensation. The materials of the case established that ... the customs (the tortfeasor. - L.K.) acted in accordance with the current ... legislation ... "<2>. ——————————— <1>Determination of the Supreme Arbitration Court of the Russian Federation of March 19, 2008 N 2962/08.<2>Decree of the Federal Antimonopoly Service of the Moscow District of February 18, 2002 in case No. KG-A40 / 448-02.

Thus, the harm caused by the delinquent, while complying with the latter norms and requirements of objective law, is not recognized by the current legislation as subject to compensation. There are many cases of establishing the obligation to compensate for harm caused by lawful actions. First of all, we should mention the compensation for losses caused by securing a claim, which is quite common in practice. Article 98 of the Arbitration Procedure Code of the Russian Federation provides that the defendant and other persons who have suffered losses by securing the claim, after the entry into force of the judicial act of the arbitration court on the refusal to satisfy the claim, have the right to demand from the person applying for securing the claim, compensation for losses by filing an appropriate claim. Thus, in one of the cases, the Supreme Arbitration Court of the Russian Federation indicated that it follows from the materials of the case and the courts established that as a result of taking measures to secure a claim at the request of the defendant in another case, the plaintiff and his creditors suffered losses. With reference to paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation and Art. 98 of the Arbitration Procedure Code of the Russian Federation, on this basis, the court satisfied the claim for damages<1>. ——————————— <1>Determination of the Supreme Arbitration Court of the Russian Federation of October 12, 2007 N 12724/07.

The same category of compensation for damages caused by lawful actions should also include cases of reimbursement of court costs (Chapter 9 of the Arbitration Procedure Code of the Russian Federation). Further, in a number of examples of torts that do not have signs of illegality, one can also mention the Law of the Russian Federation of May 14, 1993 N 4979-1 “On Veterinary Medicine”<1>(as amended on July 21, 2007). According to Art. 19 of the said Law, when eliminating foci of especially dangerous animal diseases, by decisions of the highest executive bodies of state power of the constituent entities of the Russian Federation, animals and (or) animal products may be seized with payment to the owner of the animals and (or) animal products of the cost of animals and (or) animal products at the expense of funds from the budget of the corresponding subject of the Russian Federation and issuance to this owner of the relevant document on such withdrawal. ———————————<1>Gazette of the SND and the Armed Forces of the Russian Federation. 1993. N 24. Art. 857.

The delict, consisting in the commission of lawful acts, is also mentioned in Art. 242 of the Civil Code of the Russian Federation (“Requisition”), according to which in cases of natural disasters, accidents, epidemics, epizootics and under other circumstances of an emergency nature, property in the interests of society, by decision of state bodies, can be withdrawn from the owner in the manner and on conditions that established by law, with the payment to him of the value of this property. Another example: the case under Art. 57 of the Land Code of the Russian Federation<1>, according to which owners, land users, landowners and tenants of land plots are compensated for losses, including lost profits, caused by the lawful seizure of land plots for state or municipal needs. ———————————<1>SZ RF. 2001. N 44. Art. 4147.

All of the above allows us to argue that tort liability can also arise as a result of an unlawful action (inaction), which was originally determined by the very legal nature of the tort, and a lawful action (inaction), i.e., corresponding to the requirements and regulations of the law and other legal acts . Any harm is a priori unlawful and subject to compensation, since it represents a violation (destruction, termination or derogation) of the subjective rights and legitimate interests of other persons, which, from the point of view of the basic principles of civil law, is unacceptable, with the exception of the possible restriction of civil rights on the basis of federal law and only to the extent that this is necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state (Article 1 of the Civil Code of the Russian Federation). The theoretical expression of this rule is the so-called principle of general tort. In other words, any legal fact, the result of which is the infliction of harm, is presumed to be unlawful and should be recognized as a tort. Therefore, the circumstance that in the event of a lawful infliction of harm (in the case of a lawful tort) no tort liability arises and the harm is not subject to compensation is an exception and it is precisely as such an exception that it is enshrined in paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation. In other words, as an exception, one should consider not those cases in which the harm caused by lawful actions is subject to compensation, but those in which such harm is not subject to compensation. It seems that from the point of view of the tort theory, "wrongfulness" should be understood broadly, as a concept that covers the violation of not only the norms of objective law, but also any subjective civil rights and legitimate interests of participants in the turnover. And the delict itself, being, in view of what has been said above, is always unlawful, from the point of view of violation of the norms of objective law, can be characterized both as corresponding to such norms and as an act (action or inaction) contrary to them. In support of the foregoing, the provisions of Art. 1067 of the Civil Code of the Russian Federation (“Infliction of harm in a state of emergency”). According to the said article, harm caused in a state of emergency, i.e., to eliminate the danger that threatens the harm-doer himself or other persons, if this danger under the circumstances could not be eliminated by other means, must be compensated by the person who caused the harm. Thus, the legislator, in fact, recognized that the delict (infliction of harm) in this case is unlawful, and therefore the harm is subject to compensation, despite the fact that by virtue of the direct assumption of Art. 14 of the Civil Code of the Russian Federation, self-defense of civil rights is allowed, provided that the methods of self-defense must be proportionate to the violation and not go beyond the limits of the actions necessary to suppress it. The reason for such a normative decision can only be that in reality any delict is illegal, since the harm itself is also illegal, in any case violating the subjective civil rights and (or) legitimate interests of the victim.

Harm as a condition of tort liability (concept and characteristics)

The significance of harm from the point of view of tort liability is so great that it is very often erroneously characterized even as its basis. As a rule, “harm as the basis of tort liability is understood as property or non-property consequences that are unfavorable for a subject of civil law, resulting from damage or destruction of property belonging to him, as well as from causing injury or death to a citizen (individual)”<1>. At the same time, the concept of "damage" is evaluated as a synonym for the word "harm", and the loss is understood as a monetary assessment of property damage, i.e. the same harm, only expressed in money<2>. ——————————— <1> <2>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. M.: Volters Kluver, 2004. S. 439.

The above traditional point of view seems to us not quite consistent with both the tort theory and the established practice of applying the current legislation. First of all, despite the apparent simplicity of the concept of “harm”, its current interpretation in the theory of civil law is completely ambiguous. In particular, the noted is manifested in the issue of property damage. On the one hand, property damage refers only to the consequences that have arisen as a result of damage or destruction of the property of the victim, on the other hand, any negative consequences that occur when a property right or benefit of a person is violated, which can be expressed not only in damage or loss of a thing, but and, for example, in "not receiving the income that the victim would have received if there had not been a harmful act"<1>. ——————————— <1>Civil law. Part two: Textbook / Otv. ed. V. P. Mozolin. S. 358.

In our opinion, the need to cover the estimated concept not only the consequences in the form of destruction or damage to someone else's property, but also the income not received by the victim is very doubtful. On the one hand, property damage in the literal sense of the word is damage in one form or another to the property sphere of the victim or, otherwise, a violation of the existing property status of the latter, without taking into account the income he has not received. On the other hand, it is unacceptable to understand harm only in a narrow sense, as the destruction or damage to someone else's property. After all, harm can be caused not only in connection with the indicated circumstances, but also, for example, due to a violation of the order of repayment of creditors' claims during the liquidation of a legal entity: such harm is not “physical”, but exclusively “economic” in nature. The characteristic of property damage in judicial practice is also of interest. Most often, property damage is assessed as the expenses actually incurred by the victim, regardless of how the actual damage caused to property is assessed, i.e., regardless of how much the value of the damaged property has decreased. For example, in one of the cases considered by the Supreme Arbitration Court of the Russian Federation, the defendant in the case compensated the plaintiff for the damage caused to the plaintiff's car, taking into account the wear and tear of the damaged vehicle, i.e., based on how much the value of the damaged property decreased. The Supreme Arbitration Court of the Russian Federation, pointing out the correctness of recovering from the defendant the amount of the plaintiff's actual expenses, which turned out to be higher than the amount of the reduction in the value of the damaged property, noted that there was no need to take into account the state “in which the property was at the time of the damage. Such a limitation would be contrary to the provision of civil law on full compensation for damages.<1>. ——————————— <1>Determination of the Supreme Arbitration Court of the Russian Federation of February 28, 2008 N 17730/07 "On the refusal to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation."

In other cases, when determining damages, the court, on the contrary, points out the inadmissibility of proceeding from the expenses actually incurred by the plaintiff and, when making a decision, starts from those incomes that were not received by the plaintiff. Thus, a municipal enterprise applied to the arbitration court of the Russian Federation, represented by the Ministry of Finance of the Russian Federation, with a claim for reimbursement of expenses for the transportation of certain categories of citizens at reduced rates. The court of first instance dismissed the claim. The courts of appeal and cassation upheld the decision of the court. At the same time, refusing to satisfy the claim, the courts proceeded from the following: “... the company did not document the amount of actually incurred expenses for the transportation of the preferential category of passengers, since, according to paragraph 5 of Article 790 of the Civil Code of the Russian Federation, it is the carrier’s expenses that are subject to reimbursement, and not the cost (price ) discount tickets, on the basis of which the amount of the claim was actually calculated ... the amount of the claim was calculated based on the maximum fare (cost) of the ticket for the carriage of passengers, and not on the actual costs incurred”<1>. ——————————— <1>

The Supreme Arbitration Court of the Russian Federation considered the judicial acts held in the case to be canceled and, in particular, indicated: “... organizations that directly provided services to consumers free of charge or at a reduced price have the right to receive compensation from an appropriate public legal entity in the form of fees not received from consumers ... Russian The Federation, having established by law ... benefits in the form of free travel, assumed the obligation of the transport company to fully reimburse the costs of providing these benefits at the expense of the federal budget "<1>. Thus, in the case under consideration, the court found it necessary to assess the damage not on the basis of the actual costs incurred by the carrier in connection with the transportation of passengers entitled to reduced fares, but on the basis of the ticket sales price not received by the carrier in full. However, such damage cannot be regarded as a loss of profit - this is real damage, since the violation of the plaintiff's right is not connected with the transportation of passengers at reduced rates, but with the fact that the amount of the fare not received by the carrier was not properly reimbursed from the treasury due to the illegal inaction of the competent state body . ———————————<1>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 5, 2008 N 16069/07.

All of the above allows us to argue that harm is the adverse consequences expressed in the termination or derogation of the property or personal non-property subjective civil rights of a person or his intangible benefits. Harm is a consequence of the tort, its actual (material) and legal result. The concept of "damage" can probably be recognized as a complete synonym for the concept of "harm", with the same content indicated above. So, in one of the cases, the Supreme Arbitration Court of the Russian Federation directly stated that “the concept of “damage” ... covers both damage determined according to the rules of Article 15 of the Civil Code of the Russian Federation, and adverse consequences associated with infringement of honor, dignity and business reputation”<1>, i.e., it can have both property and non-property content. ———————————<1>Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83 “On some issues related to the application of part 3 of article 199 of the Arbitration Procedure Code of the Russian Federation”.

Thus, a tort as its consequences can have not only harm, but also lost profits. What has been said gives us, in particular, grounds for asserting that the title of Ch. 59 of the Civil Code of the Russian Federation - "Obligations as a result of causing harm" - does not fully reflect the features of the named category of obligations arising not only in connection with compensation for harm, but also as a result of the loss of profit for the victim. Finally, another issue that we consider important to discuss in the framework of the analysis of tort liability is the question of the relationship between such concepts as “delict” and “debt”. The term itself (“debt”) is extremely widely used by civil law in relation to a variety of relations. In general, it is understood as any obligation of the debtor (to transfer property, perform work, pay money, etc., or refrain from a certain action), although most often a debt in civil law is a monetary obligation. The concept of "duty" also has a general philosophical meaning, within which "duty" is an ethical category that expresses the moral task of a certain individual or group of persons (community) in specific social conditions, which becomes an internally accepted obligation for them. It is also interesting that the original meaning of the Latin "culpa" (translated from Latin - guilt, which is one of the key concepts of tort law) was precisely "debt (expressed in monetary or other material equivalent)" (= aes alienum), whence the appearance of the meanings “(objective) need to repay the borrowed” > “consciousness of the need to repay the debt, (internal) state of the debtor” should be assumed; surviving texts record the history of the word…: “responsibility (for doing something wrong)…” > “guilt”… > “guilt”<1>. ——————————— <1>Solopov AI Etymology and the original meaning of the Latin culpa // Ancient law. IVS ANTIQVVM. N 1(3). 1998. M.: Spark, 1998. S. 83.

Analyzing the concept of "delict" in its relationship with the concept of "debt", it can be argued that the debt, along with harm (damage) or loss, is one of the legal consequences of the tort. Debt as an obligation to compensate for harm is a consequence of a tort, which has the distinctive feature that it arises on the side of the delinquent (the tortfeasor), while harm (damage or loss) characterizes the consequences of the tort on the part of the victim (creditor). At the same time, it should be borne in mind that it is debt that characterizes tort liability as a special institution of civil law, in which the imposition of a duty (debt) on a person occurs outside the will of the said person (the delinquent): as noted above, the will of the delinquent is never directed to the emergence of an obligation to compensate for harm, and always, with some exceptions, only to cause this latter. Interestingly, based, for example, on the general meaning of paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, rights may arise for participants in the turnover, including regardless of their will, as is the case, in particular, in the case of a tort and the emergence of an obligation as a result of causing harm, and hence the corresponding right of claim on the part of the victim. However, the emergence of an obligation against the will, as a general rule, is impossible. The delict is characterized by the peculiarity that when it is committed, the obligation to compensate for harm (debt) arises by virtue of the law, regardless and even against the will of the delinquent. It is this feature that characterizes the debt within the framework of tort legal relations: it is a consequence of the tort, which has the character of a civil law obligation that arises on the side of the delinquent and regardless of the will of the latter, i.e., tort liability. In addition to debt (in the form of an obligation to compensate for harm, which is the content of tort liability), the consequence of a delict for a delinquent may also be property enrichment arising on his side. As the literature correctly notes, “the law does not in any way imply the impossibility of imposing liability on a person under the rules of torts if he has derived a property benefit for himself by causing harm to another. All our many years of judicial practice contradicts this understanding of obligations from causing harm.<1>. However, for a correct assessment of the rights and obligations in this case, the direction of the will of the participants in the relationship is important first of all - the latter consists precisely in causing harm, even with the aim of enriching the delinquent, but not vice versa. ———————————<1>Commentary on the Civil Code of the Russian Federation (Part Two) / Ed. O. M. Kozyr, A. L. Makovsky, S. A. Khokhlov. M.: MTsFER, 1996. S. 236.

For the most complete analysis of the concept of "harm" and the assessment of its place and role as a condition for tort liability, it is necessary, in our opinion, to discuss the question of, we will say, the depth of the property tort, that is, not about the nature, but about the degree of harm caused , defined as the ratio of the value of the damage caused to the total value of the property. An analysis of this issue can also be of great practical importance, since the specifics of compensation for harm often depend on the depth of the tort. A property delict can be expressed in the destruction of property, i.e., in the complete cessation of its material existence, in damage to property, which excludes the possibility of further use of such property for its intended purpose and, consequently, the extraction of useful properties and qualities from it, as well as in such damage that its further use does not preclude. At the same time, it should be taken into account that in the event that property is completely lost as a result of damage, a claim cannot be made for the recovery of the cost of restoring it. Thus, an individual entrepreneur filed a lawsuit against the company with an arbitration court for compensation for damage caused to the property (car) of the plaintiff as a result of a traffic accident that occurred through the fault of the driver of the defendant's car. The claim was granted, but the amount recovered for the repair of the damaged car turned out to be twice the full cost of a car of the same brand and the same quality. This circumstance gave rise to an appeal against the decision of the court of first instance. The Court of Appeal, after evaluating all the materials and arguments of the parties available in the case, came to the conclusion that the disputed car was lost (disposaled) by the plaintiff, and therefore its restoration is impossible. Considering that the plaintiff made claims for the recovery of costs for the repair of property that was actually lost, and not for reimbursement of the cost of this property, the court considered the stated claim unfounded and dismissed it. The court of cassation, canceling the decision of the appellate instance, indicated that by virtue of Art. 15 of the Civil Code of the Russian Federation, the plaintiff rightfully demanded damages in the amount of expenses that he would have to make to restore the violated right. Since the plaintiff, in accordance with the requirements of Art. 1064, 1079 of the Civil Code of the Russian Federation, proved the infliction of harm to his property, the unlawfulness of the behavior of the tortfeasor and the causal relationship between such behavior and the harm that occurred, and the defendant did not provide evidence of the absence of his guilt, the refusal to satisfy the stated claim, according to the court of cassation, was made unlawfully. At the same time, the court of appeal did not give a proper legal assessment to the conclusions of the court of appeal that the damaged car was disposed of by the plaintiff and the alleged costs of its repair have no real basis. The Supreme Arbitration Court of the Russian Federation, canceling the judicial acts held in the case, in particular, indicated that the plaintiff had to prove that the alleged costs of repairing property are real, i.e. there is a thing for the restoration of which they will incur such costs: “In the event of a complete loss of property who has suffered damage, the claim for reimbursement of the costs of its restoration cannot be considered as having a legal basis”<1>. ——————————— <1>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 13, 2000 N 8904/99.

Thus, if the harm caused as a result of the commission of a tort entails the complete destruction of property, then compensation for harm by claiming the amount of expenses for its restoration is impossible. In this case, damage can be compensated either in kind (by providing property of the same kind and quality) or in cash (by paying the cost of such property). Here is another example illustrating the named problem of the depth of the tort from the reverse side. So, the plaintiff recovered from the defendant in the order of compensation for damage the cost of damaged property. When considering the case, the court found that the property remained in the possession of the plaintiff and the latter continues to actually use it for its intended purpose. Given these circumstances, the court dismissed the claim and drew attention to the following: “... in such a situation, the damage is compensated in the amount by which the value of the property has decreased. In the amount of the value of the property, damage is compensated in case of its loss or unsuitability for its intended use, with the determination of the legal fate of the damaged property in order to prevent unjust enrichment of the victim.<1>. ——————————— <1>Decree of the Federal Antimonopoly Service of the Urals District of July 3, 2000 N F09-873/2000-GK.

Considering the indicated problem, we are faced with another issue that requires attention - with the question of the legal fate of the property that was damaged, but not completely lost, although it cannot be used for its intended purpose. The corresponding problem often arises, for example, in the practice of insurance. So, when an insured event occurs as a result of causing harm, the insured often, after compensating for the damage, requires the insurer to transfer the damaged property or the corresponding part of the property (for example, parts of a damaged car) to him. The legislator does not offer a solution to the problem, but the need for it today is obvious. The only means currently available to the participants in the turnover in resolving this issue is the contract, in particular, the inclusion of relevant conditions in the insurance contract. However, contractual regulation is not always possible. In any case, in our opinion, when determining the legal fate of damaged property (in the case of compensation to the victim of its full value), one should proceed from the inadmissibility of unjust enrichment of the victim and therefore, if the property cannot be used for its intended purpose as a result of damage, but is not completely destroyed and by virtue of this, continues to represent some value, the person obliged to compensate for the damage has the right either to demand the transfer of such property to him, or to reduce the amount of compensation by the estimated value of such damaged property or its corresponding part. These are some of the controversial issues related to the basis and conditions of tort liability.

Controversial issues of the subject composition of the tort obligation

One of the most complex and ambiguous issues related to tort liability is the problem of determining the victim in a situation where the damage subject to compensation is caused to property, the interest in which several persons have an interest in preserving at once. Such a situation occurs, for example, when damage is caused to leased property, property held in trust or gratuitous use, property transferred under a storage agreement, when property is pledged and in other similar cases. When causing damage to property in these situations, the question arises as to who actually acquires the right to compensation for damage in this case: the direct owner of the property or its owner (a person endowed with respect to this property by another right in rem)? Let's take an example. Altai Tire Company OJSC filed a lawsuit against Barnaulmetallurgmontazh CJSC with an arbitration court to recover, by recourse, the amount of money previously paid by the plaintiff in favor of Altai Tire Plant OJSC. As it was established by the case materials, a lease agreement was concluded between the plaintiff and Altai Tire Plant OJSC, under the terms of which an industrial water pipeline owned by the plaintiff was transferred to the temporary possession and use of Altai Tire Plant OJSC. In the course of excavation by the defendant and as a result of a gross violation of the rules for their implementation, the specified water supply was damaged. In connection with these events and guided by the norms of civil law on lease, Altai Tire Plant OJSC filed a lawsuit against Altai Tire Company OJSC for compensation for losses (including lost profits) related to the restoration of leased property, staff downtime . The plaintiff acknowledged these requirements, and later filed a lawsuit against the direct tortfeasor, CJSC Barnaulmetallurgmontazh, determining the amount of damage caused based on the costs incurred by the plaintiff in connection with payments to the lessee (JSC Altai Tire Plant). By the decision of the court of first instance, left unchanged and by the court of appeal, the claim was satisfied. However, the court of cassation dismissed the claim on the following grounds: “As can be seen from the materials of the case, the water supply system owned by OJSC Altai Tire Company was transferred by right of ownership to OJSC Altai Tire Plant under a lease agreement ... Damage was caused to OJSC Altai Tire Plant (the lessee . - L.K.) due to damage to the water supply by the defendant. By virtue of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation, damage caused to the property of a legal entity is subject to compensation in full by the person who caused the damage. By law, the obligation to compensate for harm may be assigned to a person who is not the tortfeasor... The relationship between Altai Tire Plant OJSC and Altai Tire Company OJSC, arising from the lease agreement, is not related to obligations due to the infliction of harm... The court found that the person, which has been harmed is OJSC "Altai Tire Plant"<1>(highlighted by me. - L.K.). ———————————<1>

Thus, the court recognized that the tenant should be considered the victim in the situation under consideration. The owner of the damaged property was, in fact, denied the right to satisfy the claim for damages. In other words, the court apparently considered that the owner did not suffer from the fact of damage to the leased property, since in any case he has the right to return the property upon termination of the lease agreement in the condition in which he received it, taking into account normal wear and tear or in condition stipulated by the contract (clause 1, article 622 of the Civil Code of the Russian Federation). From these positions, the logic of the court is quite understandable and justified. However, in this case, the tenant is also protected by contractual mechanisms, since, firstly, he has the right to lease property in a condition that meets the terms of the contract and the purpose of the property (Article 611 of the Civil Code of the Russian Federation), and, in continuation of this general right, is endowed the right to demand the elimination of deficiencies, reduction of rent, termination of the contract, and also the right to withhold the amount of expenses incurred by him in connection with the elimination of deficiencies from the rent (Article 612 of the Civil Code of the Russian Federation), and secondly, the tenant is also protected by the obligation established by law the lessor to make major repairs in relation to the leased property (clause 1, article 616 of the Civil Code of the Russian Federation). In other words, on the one hand, the owner, who is certainly interested in the safety of his property, is protected by the tenant's obligation to return the property in good condition upon termination of the contract, on the other hand, the lessee, who also has an interest in ensuring the safety of the same property located in his direct ownership is also protected by liability instruments, i.e. the statutory obligations of the lessor (owner) to maintain the leased property and eliminate deficiencies. Of course, in the situation we are considering, both participants in the lease relationship are interested in preserving property: both the landlord and the tenant. The first - since the property belongs to him by right of ownership and is one of the components of his property sphere, the second - since most often he is the direct owner, carries out use of the property and is interested in continuing to extract useful properties and qualities from such property. And, in our opinion, it would not be right to pose the question in such a way that the decision determines which of the participants in the legal relations being assessed is more interested in preserving such property and, accordingly, who has the right to compensation for damage caused to property. It seems that from the point of view of assessing the economic interests of the participants in the turnover, in this case, both the lessee and the lessor should be recognized as victims, since both of them, although to a different extent, experience certain inconveniences in connection with damage to property belonging to them on the right of lease or ownership. . However, the law does not provide an unambiguous solution to the question of who exactly - the tenant or the landlord - should bear the property consequences of causing harm in this case. In our opinion, the solution of this issue directly depends on who exactly the law entrusts with the risk of accidental loss or damage to property. Risk as a danger of adverse consequences of a property or personal nature, regarding which it is not known whether they will occur or not, is characterized in contractual relations as “the probability of losses or other expenses that are not subject to compensation at the expense of the other party to the obligation, the condition for the occurrence of which is not the fault of the person, on whose property sphere they will be assigned by virtue of law or contract”<1>. In other words, when deciding who exactly should be recognized as the victim of damage to property leased, it is necessary to rely on whose property area (lessor or tenant) the adverse consequences of such damage relate to, in other words, which of the two carries the risk of accidental loss or damage to property. ———————————<1>Arkhipov D. A. Experience in the theory of risk in a contractual obligation // Actual problems of civil law. Issue. 9. M.: Norma, 2005. S. 399.

Based on the foregoing, it is necessary to recognize the lessor as the victim of damage to property leased, except in cases of financial lease, in which, by direct indication of the law, the risk of accidental loss or damage to property is borne by the lessee. The correctness of the formulated thesis is also confirmed by the fact that, in accordance with Art. 639 of the Civil Code of the Russian Federation, which regulates relations related to the rental of a vehicle with a crew, in the event of the death or damage to the leased vehicle, the lessee is obliged to compensate the lessor for the losses caused only if the latter proves that the death or damage to the vehicle occurred due to circumstances for which the tenant is liable in accordance with the law or the lease agreement. Thus, as a general rule, the lessor bears the risk of accidental loss or damage to property; he, based on the logic adopted above, should be recognized as a victim in tort legal relations. In other words, in the case cited above, the court incorrectly concluded that if damage is caused to the leased property, the damage is considered to be caused to the tenant; damage in such a situation should be considered caused to the lessor as the owner of the property. Based on the foregoing, we can draw two conclusions that are significant from the point of view of characterizing tort liability. Firstly, the landlord, not the tenant, should be recognized as the victim of damage to the leased property. Secondly, when determining the amount of harm caused, and hence the property equivalent of tort liability, only adverse consequences for the property sphere of the owner of the property should be taken into account, but not the impact of harm on the property status of the tenant. However, in this state of affairs, the lessee may also suffer property non-contractual damage, primarily due to the impossibility of using the leased property and extracting useful qualities and properties from such property. In addition, when damage is caused to the leased property, damage may be caused to the property of the tenant itself (for example, separable improvements to the leased property or property located in the leased premises). Thus, in one of the cases, the court recognized the tenant's claims for compensation for damage caused to the tenant's own property as a result of flooding of the leased premises as justified and subject to satisfaction.<1>. In the above cases, the harm expressed in the loss of profit of the tenant or in real damage caused to property owned by the tenant by right of ownership is subject to compensation by delinquent in favor of the tenant himself. Accordingly, claims for compensation for such damage can only be made by the tenant. ———————————<1>Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of May 25, 2007 in case N A28-2558 / 2006-146 / 9.

Is the landlord entitled to compensate the tenant in the situation under consideration, guided by Art. 612 of the Civil Code of the Russian Federation and the consideration that the shortcomings resulting from the damage prevent the use of property? The answer to this question should generally be positive. After all, the lessor is bound by the need to transfer to the tenant property suitable for the use established by the contract, due to the existing obligation, and the obligation to carry out major repairs in relation to this property, if the actual need so requires (Article 616 of the Civil Code of the Russian Federation). However, the lessor has no obligation to compensate for damage in the form of lost profits of the lessee or the damage caused to the lessee's own property, since these losses are not related to the lessor's failure to perform (improper performance) of its obligations under the lease agreement. Thus, in the litigation we are considering at the very beginning of this section, the landlord should have been denied only part of his claims, namely those based on compensation for the tenant’s losses, expressed in downtime of his staff and the formation of lost profits, but not those that associated with the restoration by the tenant of the most damaged property (water supply). Accordingly, in this last part, the landlord had the right to turn to the delinquent with a claim for damages. Based on the foregoing, it can be argued that the same actions of a delinquent can give rise to obligations to compensate for harm to various persons, while the subject composition of such obligations will be determined not only by the property of the damaged property belonging to one or another person, but also by the nature of the harm caused to the victim, and in particular, whether such harm is expressed in real damage or in lost profits. The question of the right of the landlord in the situation under consideration to compensate the tenant for the damage caused in full and file a claim in recourse against the direct tortfeasor is not unambiguously resolved. Thus, in the court dispute considered above, the court refused the lessor, who compensated the lessee for the damage caused in full (including the part determined by the costs of restoring the damaged property), referring to the fact that the lessor is not a person who is assigned by law obligation to pay damages. At the same time, the court pointed out, in particular, that “by law, the obligation to compensate for harm can be assigned to a person who is not the tortfeasor (paragraph 2 of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation). The relations of Altai Tire Plant JSC (tenant. - L.K.) and Altai Tire Company JSC (lessor. - L.K.), arising from the lease agreement, are not related to obligations due to damage. No other law, on the basis of which the obligation to compensate for harm should be assigned to a person (JSC Altai Tire Company), who is not the tortfeasor, was not cited by the plaintiff. The court found that the person who was harmed was OJSC Altai Tire Plant. Considering the foregoing, the arbitral tribunal reasonably concluded that the plaintiff did not prove that he had the right of a retroactive claim (recourse) ... "<1>. ——————————— <1>Resolution of the Federal Antimonopoly Service of the West Siberian District of September 18, 2008 in case N F04-3012 / 2008 (9548-A03-16).

In other words, the court considered that the person who compensated the harm caused to the victim has the right of a retroactive claim (recourse) to the direct inflictor of the assessed harm only if the law directly imposes on the specified person the obligation to compensate for the harm caused to the victim, and such an obligation exists outside contractual relationship between the parties. Otherwise, in the opinion of the court, the person who compensated for the harm is deprived of the right to claim back (recourse) against the tortfeasor. Unfortunately, in the dispute being assessed, the court did not give a legal assessment of the relations that have developed between the tenant and the landlord as a result of compensation by the latter to the former for the damage caused. Probably, given that the landlord was neither the tortfeasor nor the person legally obliged to compensate for the damage, according to the above logic of the court, the funds received by the tenant in compensation should probably be regarded as his unjust enrichment (Article 1102 of the Civil Code of the Russian Federation). In our opinion, the decision of the court, which denies the landlord in the situation under consideration the right of a retroactive claim (recourse) against the delinquent, is fundamentally erroneous. Firstly, when compensating the lessee for the harm caused, the lessor acted within the legal framework defined by the contractual relations of the lease, being guided by the obligations arising from such relations to carry out, as necessary, major repairs of the leased property and ensure the lessee the opportunity to use such property freely and in the manner established by the contract. . Secondly, paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation does not directly establish such restrictions as the need to establish by law an obligation to compensate for harm in relation to a person who has actually compensated for harm and is not its causer (delinquent). According to the literal text of this norm, “a person who has compensated for the harm caused by another person (an employee in the performance of official, official or other labor duties, a person driving a vehicle, etc.) has the right to claim back (recourse) against this person in the amount of the compensation paid, unless a different amount is established by law. Some doubts, however, may be caused by the specific examples given in the article and by the indication that all other cases covered by the rule being assessed must be “similar”. We believe that the legislator, of course, could not proceed from the fact that any person, without any established legal grounds, has the right to compensate for the harm caused by a third party, and then apply to this latter in the manner of recourse. At the same time, the provision that the obligation of a person to compensate for the harm caused to the victim should follow only from the norms of the law governing obligations from causing harm is clearly not justified in any way. Such an obligation can equally follow from other norms of the law, and even from a contract. It is important that such a duty must have the necessary legal basis. Specific requirements for the characteristics of such a legal basis are not established by the legislator. In other words, in the situation we are considering with causing damage to leased property, as a general rule (unless otherwise provided by law or contract), the obligation of the landlord to compensate for the damage caused to the tenant (in terms of the costs of restoring damaged leased property) follows from Art. 612, 616 of the Civil Code of the Russian Federation, and therefore the lessor, who compensated for the harm caused in this part, should be recognized the right of a retroactive claim (recourse) against the delinquent. In support of what has been said, we will give an example from another contractual area - a storage agreement. It is known that, as a general rule, the custodian is liable to the bailor for the loss or damage to the property transferred for storage (Articles 891, 902 of the Civil Code of the Russian Federation). Despite the fact that the obligation of the custodian to compensate for the harm caused follows from contractual relations, judicial practice proceeds from the fact that in this case the custodian is endowed with the right to demand a return claim against the tortfeasor (delinquent). In one of the cases, the judicial acts on which were subsequently canceled on a different basis, the court made precisely such conclusions. Thus, LLC "Master" filed a lawsuit against OAO "Metallopttorg" with a claim to the Arbitration Court for the recovery of a sum of money in accordance with paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation. Stroydom LLC was involved in the case as a third party. As it was established by the court, Metalloptorg OJSC (lessor) and Master LLC (tenant) signed a lease agreement for non-residential premises used by the tenant as warehouses, including for storage of property of Stroydom LLC. By virtue of the terms of the storage agreement, the custodian (LLC "Master") was responsible for the loss, shortage or damage of the goods accepted for storage, unless he proves that such loss, shortage or damage occurred due to force majeure circumstances or as a result of intent or gross negligence of the bailor. A fire broke out in the specified warehouse, as a result of which part of the goods stored in it was destroyed, the other part was damaged. LLC "Master", guided by the terms of the storage agreement, assumed the obligation to compensate for the damage caused to the bailor - LLC "Stroydom", after which, referring to the occurrence of a fire due to the fault of the lessor (JSC "Metallopttorg"), LLC "Master" went to court with a claim for damages by way of recourse on the basis of paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation. The courts of all instances, resolving this dispute, proceeded from the fact that the right of a retrospective claim for compensation for harm to the delinquent in the situation under consideration, undoubtedly, should be recognized by the custodian<1>. ——————————— <1>Resolution of the FAS of the Central District of October 5, 2006 in case N A14-23079/2005/726/9.

Thus, an authorized person in a tort obligation should be recognized as a subject endowed with a property interest in preserving damaged property. These are some of the controversial issues of the institution of tort liability, regarding which there are no clear and unambiguous solutions in the practice and theory of civil law, the need for which nevertheless exists.

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The question of the relationship between tort and contractual liability is of great importance not only for determining the scope of each of them, but also for understanding the content and features of both types of civil liability.

Contractual and tort liability have a number of common features. Their similarity is predetermined by the fact that by establishing one or another responsibility, the general task of protecting the rights of citizens and legal entities, ensuring law and order in society is solved. The similarity is manifested in the principles and concepts common to these types of liability, in some cases in the same legal regulation of relations (conditions of liability, grounds for exemption from liability, etc.).

At the same time, tort liability has certain features. The differences between contractual and tort liability are based on socio-economic factors. Contractual liability is intended to ensure the normal course of production and exchange, to encourage accuracy and clarity in relations governed by law. Tort liability is aimed at creating economic balance in cases of violation of the subjective rights of citizens and legal entities. The different socio-economic conditionality of contractual and tort liability predetermines the differences in legal facts that give rise to these types of liability. Contractual liability is based on the relative legal relationship that exists between the debtor and the creditor. This is always a responsibility to the authorized participant in an already existing legal relationship. On the contrary, tort liability is not preceded by any obligation of a particular person. It is based on the fact of a committed illegal act that encroaches on absolute rights: on the life and health of citizens, the right to property.

That is why tort liability is established before any person, while contractual liability is established only before the party in the contract.

The tasks facing each of these types of liability also determine the nature of the legal norms established for the respective cases.

The rules governing contractual liability are predominantly dispositive; the norms establishing liability for a tort are imperative. Harm obligations are statutory obligations and therefore cannot be subject to any contractual modification. In contractual relations, the terms of liability, its grounds and limits are usually established by agreement of the parties.

The list of conditions under which liability arises for breach of contract and causing harm is the same. However, the combination of these conditions and the interpretation of their content do not always coincide. Contractual liability is also established in the absence of losses for the creditor. In this case, it can be expressed in the payment of a penalty (fine, fine). At the same time, harm is an indispensable condition for tort liability. In the absence of harm, the question of it is not raised.

Wrongfulness is more widely interpreted in the field of relations arising from the contract. Within the framework of the contract, it is illegal to violate not only legal norms, as is typical for torts, but also any valid agreement of the parties that does not contradict the law.

Responsibility for the actions of third parties is provided for both by the norms on contracts (ST.403 of the Civil Code of the Russian Federation) and on torts (Articles 1073, 1074,1076 of the Civil Code of the Russian Federation). But if contractual liability to the creditor arises for the guilty action of a third party and in the absence of the debtor's fault, then liability for the tort of the third party is established only if there is fault in the actions of the subject of responsibility. This difference between contractual and tort liability is explained by the fact that in obligations from a contract, the creditor is always associated with a certain debtor, who either must fulfill the obligation himself, or, when this obligation is imposed on a third party, is responsible for the actions of the latter.

From the standpoint of the relationship between the debtor and the creditor in a relative legal relationship, it is also explained that parents (adoptive parents), trustees who agreed to conclude an agreement by a minor who has reached the age of 14 (Article 26 of the Civil Code of the Russian Federation), for non-performance or improper performance of this agreement by a minor do not answer. The consent (written) of these persons gives the contract of the minor the legitimacy it needs, but does not serve as a basis for bringing parents or persons replacing them to liability under the contract.

"The contract establishes a connection between the persons who have concluded it. The legal connection between the tortfeasor and the victim is established by the very fact of inflicting harm" Belyakova AM Civil liability for causing harm. M. 1987, p.27.

The principle of full compensation for harm, reflecting the beginning of the equivalence of civil law property relations, due to the use of a commodity-money form, operates both in contractual and tort relations (Article 393 of the Civil Code of the Russian Federation and Articles 1064, 1082 of the Civil Code of the Russian Federation).

However, this principle is implemented differently in these cases. In contractual relations, in particular, it is permissible to exceed the amount of liability over the losses incurred by the creditor (when the penalty is greater than the amount of losses and has not been reduced in accordance with Article 333 of the Civil Code of the Russian Federation).

Changing the amount of liability may be subject to agreement by the parties in the contract. The parties may provide for liability for the performance of such duties for which liability is not provided for by law.

Extra-contractual damage shall be compensated in the amount of its infliction. Exceptions to this rule are allowed only on the direct instructions of the law (Article 1083 of the Civil Code of the Russian Federation - taking into account the guilt of the victim).

The fulfillment of the obligation from the contract in kind ensures the normal course of economic activity. In this regard, legal means have been developed that force the debtor to actually fulfill the obligation. They may also be provided by agreement of the parties. There is, however, no legal means of providing compensation in kind for the harm caused by the tort.

In accordance with Art. 1082 of the Civil Code of the Russian Federation, the choice of the method of compensation for harm is left to the law enforcement body (court, arbitration court), although the victim's interest would be protected more effectively if such a choice were given to the victim.

This would also correspond to the principle of discretion in civil proceedings, according to which the subject of the claim is determined by the plaintiff, and not by the law enforcement agency.

The law (Article 1083 of the Civil Code of the Russian Federation) allows for the possibility of reducing the amount of compensation for harm caused by a citizen, depending on his property status. Such a rule is not provided for by the rules on contracts. This is explained by the fact that the debtor in the obligation from the contract calculates in advance its economic opportunities, plans activities.

Failure to perform the contract, unless it is caused by circumstances beyond the control of the debtor, cannot be unexpected for him.

On the contrary, for a citizen who has caused harm, its size may turn out to be not only unexpected, but also inconsistent with his economic capabilities, and therefore extremely burdensome. Tarakhov V.A. Responsibility under Soviet civil law. Saratov, 1973, p.23.

Responsibility for breach of an obligation from the contract with a plurality of persons on the side of the debtor is assumed to be shared due to the fact that from the moment the obligation arises, the co-debtors determine the degree of their participation in it. The responsibility of the co-inflictors of harm is joint and several (Article 1080 of the Civil Code of the Russian Federation). Debtors-co-inflictors of harm enter into legal relations with the victim (creditor) only from the moment of causing harm. Until that time, no relationship between these persons exists. Taking into account the interests of the victim, he is given the right to choose the debtor (defendant).

In tort and contractual obligations, the fault of the victim (creditor) is taken into account differently. If in the first case only the gross negligence of the victim affects the amount of compensation for harm (Article 1083 of the Civil Code of the Russian Federation), then in the second case any fault of the creditor is taken into account (Article 404 of the Civil Code of the Russian Federation). In view of the fact that the creditor is bound by an agreement with the debtor, he expects the latter to fulfill the obligation and organizes his activities accordingly.

Therefore, the amount of damages caused to him by the debtor is influenced by any degree of his own fault.

The infliction of harm is a surprise for the victim in a tort obligation, as a result of which only his gross negligence is taken into account.

The liability of the debtor in an obligation from the contract, if the creditor is at fault, can only be reduced (Article 404 of the Civil Code of the Russian Federation), while in a tort obligation not only reduction, but also the addition of liability from the debtor is allowed (Article 1083 of the Civil Code of the Russian Federation). In Art. 404 of the Civil Code of the Russian Federation provides for the right of the court to reduce the amount of the debtor's liability if the creditor intentionally or through negligence contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them. This rule is designed for relations arising from the contract. However, it should also apply to cases of liability for causing harm. The behavior of the victim, when he can reduce the amount of damage caused to him, but does not do this, should not be ignored by law.

The harm caused to the life of a citizen is a consequence of the unlawful behavior of the tortfeasor, expressed in death (deprivation of life). Harm to the health of a citizen is a consequence of the unlawful behavior of the tortfeasor, which is expressed in the appearance of painful changes, physical defects (injuries, occupational diseases, etc.).

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INTRODUCTION

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

The relevant relationships are also regulated federal laws and other regulations.

In the context of scientific and technological progress, the emergence of more sources of increased danger, the expansion of the scope of human activity and other modern factors, in particular, the deterioration of the environmental situation that can harm people's life and health, it is obvious that the study of the problem of compensation for harm in the Russian Federation with each becomes more and more relevant every year.

At present, cases of violation of civil rights are very frequent, in connection with which the most important task remains to ensure the most fair, quick and effective restoration of the violated right and compensation for the harm caused. One of the main types of harm that can be caused to a person is harm to life or health.

Human rights and freedoms, since they are subject to protection and protection, are realized, first of all, in protective legal relations that arise in all branches of law.

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

As noted in the Civil Code of the Russian Federation, life and health are personal non-property benefits that do not have a monetary value.

The purpose of this term paper consideration of the problem of compensation for harm caused to life.

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

Consideration of the essence, meaning of obligations due to harm;

Consideration of certain types of obligations due to harm;

Consideration of the problem of compensation for harm caused to the life of a citizen.

CHAPTER I GENERAL PROVISIONS ON LIABILITIES

DUE TO HARM

1.1 Essence, meaning and subjects of obligations due to harm

An obligation is a civil legal relationship in which one person (debtor) is obliged to perform certain actions in favor of another person (creditor) (transfer a thing, perform work, provide services, etc.), and the creditor has the right to demand from the debtor the performance of his obligation.

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

Depending on the grounds for the emergence of the obligation to compensate for the harm caused, a distinction is made between contractual and non-contractual or tort (from the Latin delictum violation) liability.

The definition of the concept of obligations arising from the infliction of harm, the law does not give. However, the main idea that characterizes it is contained in paragraph 1 of Art. 1064 of the Civil Code of the Russian Federation, according to which: Obligations due to infliction of harm (tort obligations) consist in the obligation of the person who caused harm to the person or property of a citizen or property of a legal entity, to compensate for the harm caused in full 1 .

The main thing that is stated in this norm is to establish the obligation of the person who caused the harm to compensate for the harm caused. The right of the other party is not explicitly mentioned. But the law, of course, also has in mind the right of the victim to demand compensation for harm, because the obligation can exist only in relation to the subject who has the right to demand its execution.

Therefore, there is an obligation legal relationship here, which can be defined as follows: by virtue of an obligation as a result of causing harm, the person who caused harm to the person or property of another person (natural or legal) is obliged to compensate for the harm inflicted in full, and the victim has the right to demand that the damage he had suffered was compensated.

Part 1 Art. 20, part 1, art. 41) 2 , and is one of the fundamental inalienable rights and freedoms.

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

Alekseev S.S. notes that obligations due to harm (tort obligations) are non-contractual obligations. The tortfeasor in this obligation acts as a debtor, and the injured person - as a creditor. From the essence of the obligation, it is obvious that its parties were not bound by contractual relations, or the harm did not follow from the existing contract. The content of tort obligations is civil liability, i.e., enduring, bearing certain hardships, an additional burden, acting as a legal consequence for the offense committed. The essence of a tort obligation is also due to its main functions - compensatory (restorative) and protective 3 .

The basis for the emergence of a tort obligation and at the same time a legal fact that gives rise to the corresponding legal relationship is the harm caused to the person or property of a citizen or the property of a legal entity. Harm is understood as unfavorable property and non-property consequences for the victim.

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

The basic principle of the obligation due to the infliction of harm is the full compensation for the harm by the person who caused it. In the literature, this principle is called a general tort, according to which the wrongfulness of the action and the guilt of the tortfeasor are presumed.

As a general rule, citizens, legal entities, the Russian Federation, constituent entities of the Russian Federation, and municipalities may act as parties to obligations as a result of causing harm. The person obliged to compensate for the harm caused is the debtor in this obligation. A person whose property or non-property rights have been harmed is a victim and, in a tort obligation, a creditor.

1.2 Certain types of obligations due to harm

Zenin I.A. notes that the totality of these obligations (Articles 1064-1101 of the Civil Code), as well as another type of non-contractual obligations obligations due to unjust enrichment (Articles 1102-1109 of the Civil Code), forms an independent sub-institution within such an institution as certain types of obligations 5 .

Moreover, the specificity of individual groups of obligations due to the infliction of harm led to their isolation within the framework of Chapter 59 of the Civil Code and the allocation of general provisions on compensation for harm (Articles 1064-1083), on the basis of which the Civil Code regulates compensation for harm caused to the life or health of a citizen (Art. 1084-1094), compensation for damage caused due to defects in goods, works or services (Art. 1095-1098), and compensation for moral damage (Art. 1093-1101).

Formulating the general grounds for liability for causing harm, the Civil Code establishes the principle of full compensation for harm caused to the person or property of a citizen, or to the property of a legal entity, as a rule, by the person who caused the harm (paragraph 1 of article 1064).

Liabilities resulting from harm can be classified according to various criteria, including:

(a) the nature of the perpetrator,

B) the nature of the harm;

C) the nature of the illegal actions.

Depending on the identity of the perpetrator, notes Alekseev S.S. damage caused by:

Minors under the age of fourteen (minors);

Minors between the ages of fourteen and eighteen;

incapacitated;

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

State bodies, local self-government bodies, as well as their officials;

Bodies of inquiry, preliminary investigation, prosecutor's office and court;

Legal entity or citizen for harm caused by its employee.

By the nature of the damage:

Damage caused to property;

Harm caused to life and health;

Moral injury.

Depending on the nature of the illegal activity, there are:

Damage caused by a source of increased danger;

Harm due to defects in goods, works or services 6 .

Responsibility for harm caused by minors and incompetent citizens. General feature This group of legal relations consists in the fact that for the harm caused by such citizens, liability (direct or subsidiary) is borne not by the direct tortfeasors, but by other persons named in the law. The obligations of these persons as a result of causing harm are independent in nature, form their own set of conditions (harm, illegal actions, guilt, causation) of civil liability. The fault of parents (adoptive parents, guardians, trustees) lies in the failure to supervise minors, irresponsible attitude to their upbringing, misuse of their rights in relation to children (connivance or encouragement of mischief, hooligan actions, neglect of children, lack of attention to them, etc.) .), which resulted in misconduct that resulted in harm. Parents (adoptive parents, guardians, custodians, institutions and organizations that carry out education or supervision) shall be released from liability for harm caused by minors or incapacitated citizens if they prove their absence of guilt.

Illegal acts thus include both improper upbringing and improper supervision of the perpetrators of harm. The resident parent has the same responsibility as the parent who lives with the child. If a parent, due to the fault of the other parent, was deprived of the opportunity to participate in the upbringing of his child, the court may release him from liability.

A parent deprived of parental rights may be held liable by the court for harm caused to him/her minor child within three years after depriving the parent of parental rights, if the child's behavior that caused harm was the result of improper performance of parental duties.

Responsibility for harm caused by a minor under the age of fourteen (minor) shall be borne by:

a) his parents (adoptive parents) or guardians;

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

c) an educational, medical or other organization obliged to supervise him;

d) a person exercising supervision on the basis of an agreement.

In addition, the court may, taking into account the property status

the victim and the tortfeasor, as well as other circumstances, make a decision on compensation for harm in whole or in part at the expense of the tortfeasor under a combination of conditions:

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

The tortfeasor has become fully capable;

The perpetrator has the necessary means.

The obligation of parents (adoptive parents), guardians, educational, medical and other organizations to compensate for harm caused to minors does not stop when the minor reaches the age of majority or receives property sufficient to compensate for the harm.

As a general rule, minors between the ages of fourteen and eighteen are independently liable for harm caused on a general basis. In the event that a minor between the ages of fourteen and eighteen does not have income or other property sufficient to compensate for harm, the harm must be compensated in full or in the missing part.

Let us consider in more detail the problem of compensation for harm caused to life.

CHAPTER II GROUNDS AND CONDITIONS OF TORT LIABILITY

2.1 Harm as a basis for tort liability

Harm (presence of harm) is an indispensable, mandatory basis for tort liability 7 .

In the absence of harm, the question of tort liability cannot arise.

Harm as the basis of tort liability is understood as property or non-property consequences that are unfavorable for a subject of civil law, resulting from damage or destruction of property belonging to him, as well as from causing injury or death to a citizen (individual).

As indicated in paragraph 1 of Art. 1064 of the Civil Code, harm may be caused to "person" or "property" 8 .

Causing damage to property (property damage) means a violation of the property sphere of a person in the form of a decrease in his property benefits or a decrease in their value. Sometimes property damage is defined as the difference between the financial situation of the victim before and after harm.

In case of causing harm to a person, the object of the offense is non-material benefits human life and health. But when an obligation arises from causing such harm, mainly property consequences are taken into account, i.e. property damage is subject to compensation. Only in cases provided for by law, compensation for moral damage is also allowed (paragraph 1 of article 151, paragraph 2 of article 1099 of the Civil Code). For example, if the health of a citizen is damaged, the harm is expressed in the loss of earnings for the injured, in the cost of treatment, care, etc. But along with this, i.e. regardless of compensation for property damage, compensation for moral damage is also possible (paragraph 3 of article 1099 of the Civil Code).

Property damage is often referred to as damage. For example, the Constitution of the Russian Federation enshrines the right of a citizen to compensation for damages. The Civil Code consistently uses the term "harm". However, the word "damage" is sometimes used. For example, in Art. 1088 provides for compensation to persons who have suffered damage as a result of the death of the breadwinner.

The grounds for liability for causing harm can be divided into factual and legal. The factual basis is the infliction of harm by one person to another. The legal basis is the law that protects the property status of the victim and orders the tortfeasor to compensate for the harm caused. However, this is not enough to create a liability. Certain conditions are also required.

The conditions in all cases, as Gatin A.M. notes, are:

1) the presence of harm;

2) unlawfulness of the behavior of the tortfeasor;

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

In most cases, the condition of liability is also the fault of the tortfeasor, but the law also provides for cases where the obligation arises regardless of the presence or absence of the fault of the tortfeasor.

The indicated grounds are general, since the listed composition is necessary, unless otherwise provided by law (for example, liability for harm caused by a source of increased danger occurs regardless of the fault of the harm toler).

Harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm. By law, the obligation to compensate for harm may be assigned to a person who is not the tortfeasor.

The law establishes the presumption of guilt of the tortfeasor.

By virtue of this, the person who caused harm is exempted from compensation for harm if he proves that the harm was caused through no fault of his.

Damage caused by lawful actions is subject to compensation in cases provided for by law. Compensation for harm may be denied if the harm was caused at the request or with the consent of the victim, and the actions of the tortfeasor do not violate the moral principles of society.

It is also possible to cause harm by lawful actions, which include actions committed in a state of necessary defense and extreme necessity. However, the issue of liability for harm caused by such actions is resolved in the Civil Code of the Russian Federation in a different way for each of them: harm caused in a state of necessary defense is not subject to compensation if its limits were not exceeded; at the same time, harm caused in a state of extreme necessity, i.e. to eliminate the danger that threatens the inflictor of harm himself or other persons, if this danger could not be eliminated by other means under the circumstances, must be compensated by the person who caused the harm (Articles 1066, 1067 of the Civil Code of the Russian Federation) 10 .

The presence of guilt in the behavior of the victim entails the full or partial release from liability of the tortfeasor.

Damage caused by the intent of the victim is not subject to compensation.

2.2 The problem of compensation for harm caused to the life of a citizen

Mikhailova I.A. notes that the Russian legislation governing relations arising from the infliction of harm has been actively and dynamically developing all last years, but in the process of its application often arise difficult questions, which are resolved in different ways not only in modern doctrine, but also in judicial practice. This is due, first of all, to the uncertainty, the conflict of certain provisions of the law, as well as the unsettledness of some issues, which negatively affects the provision of effective judicial protection of the rights and freedoms of citizens. The complexity of interpreting and applying the legislation governing these obligations is also explained by the fact that when considering civil cases of this category, the court must find out and give a legal assessment to a number of factors, including: circumstances of harm; the presence or absence of guilt in the actions of the tortfeasor; peculiarities of the civil-legal status of the tortfeasor, as well as those third parties who are obliged to compensate him; the nature of the harm caused, its consequences and their severity, etc. 11 .

Such losses of the victim or persons close to him are subject to compensation by the tortfeasors within the framework of tort obligations. On the same grounds, the victim, in addition, is compensated for the moral damage caused. Therefore, the law considers the infliction of harm to the life or health of a citizen as one of the types of tort obligations (an independent, special delict).

Compensation for harm caused to the life or health of a citizen is regulated by general (Art. 1064-1083), as well as special norms of the Civil Code (Art. 1084-1094). However, as Zenin I.A. notes, harm to the life or health of a citizen can also be caused in the performance of contractual obligations, as well as in the performance of duties military service¸ militia service and other related duties. Such damage is compensated according to the rules of Chapter 59 of the Civil Code (Art. 1064-1101), unless a higher amount of liability is provided for by law or contract 12 .

Harm caused to the life and health of a citizen is subject to compensation within the framework of non-contractual obligations and in cases where it is the result of improper performance of the contract 13 . For example, harm caused to the life and health of a passenger or tourist is compensated according to the rules on tort obligations, and not on obligations arising from a contract for passenger transportation or tourist and excursion services. The same applies to cases of causing the specified harm to a citizen in the performance of his duties of military service, service in the police and other similar duties, including those arising by virtue of an employment contract (Article 1084 of the Civil Code). In particular, according to these rules, damages incurred by an employee due to an occupational disease caused by difficult, unsafe working conditions (for example, pneumoconiosis and silicosis in miners, damage to the auditory nerve in professional radio operators, etc.) are also compensated.

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

These individuals include:

1) disabled persons who were dependents of the deceased or had the right to receive maintenance from him by the day of his death;

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

3) one of the parents, spouse or other family member, regardless of his ability to work, who does not work and is busy caring for the dependent children of the deceased, his grandchildren, brothers and sisters who have not reached fourteen years of age or, although they have reached the specified age, but according to the conclusion medical bodies in need of outside care for health reasons;

4) persons who were dependents of the deceased and became disabled within five years after his death 14 .

One of the parents, spouse or other family member who is not working and is engaged in caring for the children, grandchildren, brothers and sisters of the deceased and who became disabled during the period of care, retains the right to compensation for harm after the end of care for these persons.

Damage is compensated:

1) minors - up to the age of eighteen years;

2) students over eighteen years of age - until graduation from educational institutions according to full-time education, but not more than twenty-three years;

3) women over fifty-five years old and men over sixty years old - for life;

4) disabled people - for the period of disability;

5) to one of the parents, spouse or other family member involved in caring for the dependent children, grandchildren, brothers and sisters of the deceased - until they reach the age of fourteen or change their health status ( Art. 1088 of the Civil Code of the Russian Federation).

Persons entitled to compensation for harm in connection with the death of the breadwinner shall be compensated for the harm in the amount of the share of the earnings (income) of the deceased, which they received or had the right to receive for their maintenance during his lifetime. The amount of wages (income) to be compensated for by the injured person is determined as a percentage of his average monthly earnings (income) before injury or other damage to health or until he loses his ability to work, corresponding to the degree of loss of the victim's professional ability to work, and in the absence of professional ability to work - the degree of loss of general ability to work. The composition of the lost earnings (income) of the victim includes all types of payment for his labor under labor and civil law contracts, both at the place of the main job and part-time, subject to income tax. Lump-sum payments are not taken into account, in particular, compensation for unused vacation and severance pay upon dismissal. For a period of temporary incapacity for work or maternity leave, the benefit paid is taken into account. Income from entrepreneurial activities, as well as royalties, are included in lost earnings, while income from entrepreneurial activities is included on the basis of data from the tax inspectorate. All types of earnings (income) are taken into account in amounts accrued before taxes. The average monthly earnings (income) of the victim is calculated by dividing the total amount of his earnings (income) for the twelve months of work preceding the damage to health by twelve. In the case when the victim worked for less than twelve months at the time of the injury, the average monthly earnings (income) are calculated by dividing the total amount of earnings (income) for the actually worked number of months preceding the damage to health by the number of these months.

If in the earnings (income) of the victim, before the infliction of injury or other damage to health, stable changes occurred that improve his financial situation (increased wage according to his position, he was transferred to a higher-paid job, went to work after graduating from an educational institution full-time, and in other cases when the stability of the change or the possibility of changing the remuneration of the victim is proved), when determining his average monthly earnings (income), only earnings are taken into account (income) that he received or should have received after the corresponding change.

When determining compensation for harm to these persons, the composition of the income of the deceased, along with earnings (income), includes the pension, life support and other similar payments received by him during his lifetime. When determining the amount of compensation for harm, pensions assigned to persons in connection with the death of the breadwinner, as well as other types of pensions assigned both before and after the death of the breadwinner, as well as earnings (income) and stipends received by these persons, on account of compensation for harm, do not are counted.

The amount of compensation established for each of those entitled to compensation in connection with the death of the breadwinner is not subject to further recalculation, except in cases:

Birth of a child after the death of the breadwinner;

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

The amount of compensation may be increased by law or contract ( Art. 1089 of the Civil Code of the Russian Federation).

In the event of the death of a citizen responsible for causing harm, the obligation to compensate for it passes to his heirs within the limits of the value of hereditary property.

Isaicheva E.A. notes that article 3 Federal Law of July 24, 1998 N 125-FZ "On Compulsory Social Insurance against Accidents at Work and occupational diseases» defines an accident at work as an event as a result of which the insured received an injury or other damage to health in the performance of duties under an employment contract (contract) and in other cases established by the specified Federal Law, both on the territory of the insured and outside it or in the time of going to the place of work or returning from the place of work on the transport provided by the insured, and which entailed the need to transfer the insured to another job, temporary or permanent loss of his professional ability to work or his death 15 .

According to Art. 184 of the Labor Code of the Russian Federation 16 in the event of damage to health or in the event of death of an employee due to an accident at work or an occupational disease, the employee (his family) is compensated for his lost earnings (income), as well as additional expenses related to damage to health for medical, social and professional rehabilitation or appropriate expenses in connection with the death of an employee.

Article 23. Compensation for harm caused to the life or health of a member of the Federation Council, a deputy State Duma Federal Law No. 3-FZ of May 8, 1994 “On the Status of a Member of the Federation Council and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation”states: In the event that a member of the Federation Council, a deputy of the State Duma is injured or otherwise damaged in health, resulting in a loss of ability to work, they are paid monthly compensation in the amount of the difference between the monthly monetary remuneration of a deputy of the State Duma on the date of payment of the compensation and the assigned pension without offsetting the payments of insurance sums according to the state insurance.

In the event of the death of a member of the Federation Council, a deputy of the State Duma, material support for the family members of the deceased member of the Federation Council, a deputy of the State Duma is carried out in the manner established by the federal law on the material support of family members of a deceased member of the Federation Council, deputy of the State Duma 17 .

Mikhailova I.A. notes that the fact that the application of civil law to obligations due to harm to life or health, firstly, is much more complex than other civil obligations and, secondly, directly affects the most important subjective rights and legitimate interests of thousands of Russian citizens and society as a whole, determines the unprecedented importance that the adoption on January 26, 2010 of the Decrees Plenum of the Supreme Court of the Russian Federation N 1 "On the application by the courts of civil legislation governing relations on obligations due to infliction of harm to life or health" 18 .

The value of the provisions contained in this Decree , due to the fact that they were the result of a long and large-scale work on the study, analysis and generalization of the practice of considering Russian courts cases of this category, on the basis of which the most important issues and problems that arise for the courts in the process of applying and interpreting the legal norms governing the relevant obligations were identified and resolved. The clarifications formulated by the Supreme Court of the Russian Federation will significantly increase the level of law enforcement practice in this category of civil cases, will contribute to its unification and uniformity, and thereby create conditions that significantly strengthen guarantees for the proper and timely protection of the violated rights and legitimate interests of Russian citizens.

Mikhailova I.A. highlights among the many provisions that are an important contribution to the development and improvement of the institution of compensation for harm, also separate gaps and some inaccuracies. In his article, the author gives many examples of judicial practice. Let's take a look at some of them.

Thus, for example, the applicant applied to the court for compensation for non-pecuniary damage caused to her by the death of her only daughter at work in the amount of 100,000 rubles. By the decision of the district court, the claims of the plaintiff were partially satisfied: in her favor, the defendant was awarded the amount of compensation in the amount of 15 thousand rubles.

Regarding this decision, the Supreme Court of the Russian Federation emphasized that it was impossible to agree with the conclusion of the court on the establishment of compensation in this amount, especially since the decision rightly stated: "... the court believes that the plaintiff experienced enormous moral suffering in connection with the loss of her only daughter; the pain of losing a loved one is indelible; for a mother, the death of her daughter at any age is a huge grief, "therefore, the amount of 15 thousand rubles recovered by the court is clearly disproportionate to the moral suffering experienced by the plaintiff.

The indisputable nature of the suffering arising from the death of a close relative was also emphasized in one of the criminal cases initiated on the fact of driving cadet Zh to suicide. This case was dismissed due to the absence of a crime event, the basis for which was the conclusion of the investigator that the death of cadet Zh., found in the toilet of the barracks, was due to his suicide, committed in a state of neurotic depression.

By a decision of the judge of the garrison court of January 17, 2008, the complaint of the mother of the deceased Zh., in which she asked for the annulment of the investigator's decision, was dismissed.

However, as explained by the Military Collegium of the Supreme Court of the Russian Federation, according to Art. 42 Code of Criminal Procedure of the Russian Federation on criminal cases of crimes, the consequence of which was the death of a person, the rights of the victim, provided for by this norm, are transferred to one of his close relatives. In these circumstances, Zh.'s mother reasonably raised the issue of recognizing her as a victim in the case, but during the entire preliminary investigation she was not recognized as a victim. Non-recognition of the mother of the deceased as a victim is the basis for canceling the judge's decision and for sending the materials of the court proceedings to the same court to consider the applicant's complaint 19 .

Malsagov A.T. In his article, he touched on an equally topical topic in recent years - compensation for harm caused to the life and health of persons in connection with their participation in the fight against terrorism.

As Malsagov A.T. determination of the volume, nature and amount of compensation for harm to victims of terrorist acts remains at present one of the most unresolved problems. Thus, payments to the families of those killed in the Theater Center on Dubrovka amounted to 100,000 rubles, while the relatives of those killed in the Central Market in Vladikavkaz received only 10,000 rubles. to the family of the deceased. As practice has shown, during major terrorist attacks, as a rule, the Government of the Russian Federation and the authorities of the constituent entities of the Russian Federation voluntarily allocate some funds from the reserve funds to pay compensation to the relatives of the dead and injured. For example, by order of the Moscow Government, compensations were paid to the victims of the terrorist attack on the Tushino field in the following amounts: 100 thousand rubles. - families of those killed and those who died in hospitals; 50 thousand rubles - victims sent for hospitalization, and 3 thousand rubles. - those who received outpatient care. The Moscow government has pledged to pay monthly pensions to children who have lost their parents in the amount of 1.5 thousand rubles. until they reach the age of 18, and for full-time students - up to 23 years. For the loss of property, compensation was paid up to 10 thousand rubles. In addition, the city authorities assumed the cost of burying those killed in the attack. When compensating, the state relies only on those funds that were “free” at the time of payments 20 .

To date, the legislation has most fully settled the issue of compensation for harm to persons participating in the fight against terrorism in Art. 21 Federal Law No. 35-FZ of 06.03.2006 "On countering terrorism".

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

But compensation payments, as noted by A.T. Malsagov, as well as lump sums paid in accordance with law on combating terrorism, are essentially lump-sum, fixed, paid upon the occurrence of harm to the life and health of persons who took part in the fight against terrorism.

The amount of compensation for property damage caused by damage to health is defined in paragraph 1 of Art. 1085 The Civil Code of the Russian Federation, according to which, if a citizen is injured or otherwise damaged in his health, the lost earnings (income) that he had or could definitely have, as well as additional expenses incurred due to damage to health, including the costs of treatment, additional food, are subject to compensation , purchase of medicines, prosthetics, outside care, sanatorium treatment, purchase of special vehicles, training for another profession, if it is established that the victim needs these types of assistance and care and is not entitled to receive them free of charge.

When determining the lost earnings (income), the disability pension granted to the victim in connection with injury or other damage to health, as well as other pensions, allowances and other similar payments, which, in our opinion, should include payments made in accordance with law on combating terrorism and other special legal acts, appointed both before and after causing harm to health, are not taken into account and do not entail a reduction in the amount of compensation for harm (they are not counted towards compensation for harm).

So far, the issue of compensation for harm caused to the life and health of persons affected by the implementation of measures to combat terrorism has not been properly regulated in the legislation.

Thus, A.T. Malsagov notes, a comprehensive, systematic approach is needed, starting from determining the source of funding to legislative regulation of the mechanism for compensating damage caused to citizens.

Determination of the volume, nature and amount of compensation for harm caused to the life and health of persons in connection with their participation in the fight against terrorism remains one of the most controversial problems at the present time. There are a lot of issues arising in connection with compensation for harm caused as a result of the implementation of measures to combat terrorism, and proposals for their resolution, and this topic needs to be further developed. legal regulation, as well as in theoretical development.

CONCLUSION

Having studied the topic “Problems of compensation for harm caused to life”, the following conclusions can be drawn.

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

By virtue of the obligation as a result of causing harm, a person who caused harm to the person or property of another person (natural or legal) is obliged to compensate for the harm inflicted in full, and the victim has the right to demand that the harm suffered by him be compensated.

Harm caused to the life or health of a citizen is expressed in the death of a person or in causing injury or injury to him. Such harm in all cases cannot be compensated in kind, nor compensated in money. However, in this case, the victim usually suffers property losses, because, as a result of injuries or injuries, he is temporarily or permanently deprived of the opportunity to receive his previous earnings or other income, is forced to bear additional expenses for treatment, etc. In the event of the death of a citizen, such losses may be incurred by persons close to him, who as a result of this lose a source of income or maintenance.

Thus, despite the fact that the general approach excludes the application of the rules of tort to cases where the parties are in a contractual relationship, but the peculiarities of causing harm to the life and health of a citizen make it possible to make an exception from it. The obligation to compensate for such harm also arises when it is caused to a citizen in the performance of duties arising from the contract, or in the performance of other official duties. In this case, a special composition arises, which includes all the conditions provided for in general provisions Civil Code of the Russian Federation on torts, as well as the fact of causing harm in the performance of labor duties.

Russian legislation, regulating relations arising from the infliction of harm, has been actively and dynamically developing in recent years, but in the process of its application, complex issues often arise that are resolved differently not only in modern doctrine, but also in judicial practice.

LIST OF USED LITERATURE

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

2. Civil Code of the Russian Federation (Part Two) of January 26, 1996 N 14-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on December 22, 1995) (as amended on February 7, 2011))Consultant Plus;

Labor Code of the Russian Federation of December 30, 2001 N 197-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on December 21, 2001)) (as amended on December 29, 2010) ConsultantPlus;

3. Consultant Plus;

4. Federal Law of July 24, 1998 N 125-FZ (as amended on December 9, 2010) “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases” ConsultantPlus;

5. Federal Law No. 35-FZ of 06.03.2006 “On Combating Terrorism” ConsultantPlus;

6. Decree Plenum of the Supreme Court of the Russian Federation N 1 "On the application by the courts of civil legislation governing relations on obligations resulting from harm to life or health" dated January 26, 2010 / / Bulletin of the Supreme Court of the Russian Federation. 2010. No. 3. S. 2 12;

7. Gatin A.M. Civil Law: Textbook. - M.: Dashkov i K, 2009.- 127p.;

8. Civil law: textbook / under the total. ed. corresponding member RAS S. S. Alekseev. - 2nd ed., revised. and additional M.: Prospect; Ekaterinburg; Institute of Private Law, 2009. - 528 p.;

9.Civil law: In 4 volumes. Volume 4: Law of obligations: textbook. for university students / otv. ed. E.A. Sukhanov. 3rd ed., revised. and additional M.: Wolters Kluver, 2006. 816 p. (Series "Classical University Textbook" / Moscow State University named after M.V. Lomonosov);

10. Ershov V.A. and others. Article-by-article commentary to the Civil Code of the Russian Federation (Prepared for the ConsultantPlus system, 2009) 651 pp.;

11.Zenin I.A. Civil law: a textbook for universities. - 2nd ed., Revised. and additional - M .: Yurayt Publishing House; ID Yurayt, 2010.- 616s. (Fundamentals of Sciences);

12. Isaycheva E.A. Encyclopedia of labor relations. - 2nd ed., Revised. and additional .- M .: "Alfa-Press, 2007.- 410s.;

13.Commentary to the Civil Code of the Russian Federation (educational and practical). Parts one, two, three, four (item-by-article) -2nd ed., revised. and additional / ed. S.A. Stepanova.- M.: Prospect, Institute of Private Law, 2009.- 422p.;

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

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

16. Obligations as a result of causing harm: Article-by-article commentary of Chapter 59 of the Civil Code of the Russian Federation / ed. P.V. Krasheninnikova.- M.: Statute, 2009.- 67p.

1 Civil Code of the Russian Federation Art. 1064

2 Constitution of the Russian Federation

3 Civil law / ed. Alekseeva S.S. - M., 2009.- P.365

4 of the Civil Code of the Russian Federation, Art. 1065

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

6 Civil law / ed. Alekseeva S.S. - M., 2009.- P.371

7 Civil law in 4 volumes. T.4 / otv. ed. E.A. Sukhanov.- M., 2006.- P.320

8 of the Civil Code of the Russian Federation, Art. 1064

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

10 of the Civil Code of the Russian Federation Art. 1066, 1067

12 Zenin I.A. Civil Law.- M., 2010.- P. 610

13 Civil law in 4 volumes. T.4 / otv. ed. E.A. Sukhanov.- M., 2006.- P.347

14 Gatin A.M. Civil Law.- M., 2009.- P.263

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

16 Labor Code of the Russian Federation

17 Federal Law No. 3-FZ of May 8, 1994 (as amended on December 28, 2010) “On the Status of a Member of the Federation Council and the Status of a Deputy of the State Duma of the Federal Assembly of the Russian Federation”

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

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

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

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