Criteria for determining the amount of compensation for moral damage
In most cases, the grounds for filing lawsuits were cases of: causing harm by a source of increased danger; unlawful criminal prosecution, unlawful conviction, unlawful application of a preventive measure, etc.; causing harm to life and health while performing work duties; causing harm as a result of committing criminally punishable acts or committing an administrative offense; causing harm in the field of rendering services; causing harm due to labor relations; protecting honor and dignity; causing harm as a result of a medical error.
In accordance with article 951 of the Civil Code, moral harm is the violation, diminution or deprivation of personal non–property benefits and rights of individuals and legal entities, including moral or physical suffering (humiliation, irritation, depression, anger, shame, despair, physical pain, inferiority, discomfort, etc.) experienced (endured, experienced) by the victim as a result of the offense committed against him.
Moral harm may consist of: moral feelings related to the loss of relatives; inability to continue active social life; loss of work; dissemination of false information discrediting the honor, dignity or business reputation of a citizen; temporary restriction or deprivation of any rights; physical pain associated with injury, other damage to health or illness suffered as a result of moral suffering, and others.
Paragraph 3 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of legislation on compensation for moral harm" clarifies that moral harm should be understood as moral or physical suffering experienced by a citizen as a result of unlawful violation, diminution or deprivation of personal non-property rights and benefits belonging to him.
Personal non-property rights and benefits, the violation, deprivation or diminution of which may result in moral harm to the victim, should be understood as benefits belonging to a citizen from birth or by virtue of law rights that are inextricably linked to his personality. Moral suffering as an emotional and volitional experience of a person should be understood as feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, discomfort, etc. These feelings may be caused, for example, by unlawful encroachment on the life and health of both the victim and his close relatives; unlawful deprivation or restriction of freedom or the right to free movement; harm to health, including disfiguring open parts of the human body with scars and scars; disclosure of family, personal or medical secrets; violation of the secrecy of correspondence, telephone or telegraphic messages; dissemination of untrue information discrediting the honor and dignity of a citizen; violation of the right to a name, to an image; violation of his copyright and related rights, etc.
In cases and in accordance with the procedure provided for by law, personal non-property rights and other intangible assets belonging to the deceased may be exercised and protected by other persons, including the heirs of the rightholder. All these benefits relate to the fundamental rights and freedoms of citizens guaranteed by the Constitution of the Republic of Kazakhstan.
According to the explanation of paragraph 7 of the Regulatory Resolution, when determining the amount of compensation for moral damage in monetary terms, it is necessary to take into account both the subjective assessment by a citizen of the severity of the moral or physical suffering caused to him, and objective data indicating this.
That is, the amount of compensation depends on the nature and extent of the moral or physical suffering inflicted on the citizen, the degree of guilt of the causer and other circumstances.
The specific amount of compensation for moral damage is determined by the court at its discretion, depending on the nature of the physical and moral suffering inflicted on this person, taking into account the requirements of reasonableness, fairness and sufficiency, regardless of the existence of property damage.
Paragraph 2 of Article 952 of the Civil Code provides that the nature of physical and moral suffering is assessed by the court taking into account the actual circumstances in which moral harm was caused, as well as the individual characteristics of the victim.
According to the clarification of the Regulatory Decree "On the application by courts of legislation on compensation for moral damage", the amount of compensation for moral damage in monetary terms should be considered fair and sufficient if, when determining its amount, the court takes into account all the specific circumstances related to the violation of personal non-property rights of a citizen, and the amount of compensation established by the court allows a reasonable conclusion to be drawn about the reasonable satisfaction of the plaintiff's claims. requirements.
In each specific case, the court, when determining the amount of compensation to be satisfied, must take into account: the vital importance of personal non-property rights and benefits (life, health, freedom, inviolability of the home, personal and family secrets, honor and dignity, etc.); the degree of guilt of the harm; its form; the nature and extent of moral or moral damage caused to the plaintiff. physical suffering; its degree; that the amount of compensation for moral damage and the amount of compensation to be recovered in connection with material damage should not be made dependent; requirements of reasonableness and fairness; that there may be other circumstances that deserve attention.
All these circumstances must be proved in court. Of significant importance is the question of who has the duty to prove the facts included in the subject of evidence in the case. As you know, according to art. 917 Part 3 of the Civil Code in civil law there is a presumption of guilt of the harm-doer. Therefore, the plaintiff must prove only the fact of the illegal act committed, as well as the degree of physical and moral suffering.
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