On the application by courts of legislation on compensation for moral damage

Normative resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7.

     Warning. Throughout the text, the word "RCC-NE" was replaced by the word "RCC-NE" by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

      The plenary session of the Supreme Court of the Republic of Kazakhstan decides for the purpose of correct and uniform application in judicial practice of legislation regulating issues of protection of own non-property benefits and rights belonging to citizens and compensation for moral damage caused to them:

Draw the attention of the courts to the fact that judicial protection of their own non-property benefits and rights belonging to individuals by birth or by law, as well as compensation for moral damage caused to them, is an effective guarantee of the exercise of constitutional rights and freedoms of Man and citizen.

In accordance with Articles 9 and 141 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code)and other laws of the Republic, the court shall protect its own non — property benefits and rights:

     recognition of rights;

     restoration of the situation that existed before the violation of their own non-property benefits and rights, including the recognition of acts of state bodies that do not comply with the legislation as invalid or not subject to application;

     elimination of the consequences of violation of their own non-property benefits and rights;

     conducts moral damage through compensation.

     Own non-property goods and rights are protected by the court by applying a combination of the above methods, as well as each of them separately.

     The methods of protection of their own non-property rights provided for in the AK may also be used by the court in cases where the protection of such rights is not specifically enshrined in legislative acts on Labor, on marriage and family, on the use of natural resources, on Environmental Protection and others.

Self-immaterial benefits and rights, the violation of which, deprivation or discrimination entails the infliction of moral harm to the victim, should be understood as those benefits or rights granted by law that are associated with the personality of a citizen as a whole and belong to him by birth. Life, health, honor, dignity, freedom, personal inviolability of the benefits belonging to a person by birth, and the rights of a citizen granted by law, inviolability of housing or property, secrecy of personal life or family, secrecy of telephone, telegraph messages and correspondence; use of the name; in accordance with the legislation on copyright and mixed rights, copyright and other non-property rights; the right to free movement and choice of place of residence, to receive reliable information, as well as other rights provided for by law.

     Moral damage should be understood as the suffering of the soul or body caused by a citizen as a result of unlawful violation, discrimination or deprivation of his own non-property benefits and rights belonging to him.

     Mental suffering (emotional and volitional worries of a person) should be understood as his feelings related to the humiliation, resentment, oppression, anger, shame, disappointment, damage, disadvantage, etc. Such feelings are an unlawful encroachment on the life and health of the victim himself, as well as his close relatives, spouse/spouse; illegal deprivation or restriction of liberty, or illegal deprivation of the right to free movement; harm to health, including injuries and scratches on the face of a person beyond recognition; it may be caused as a result of disclosure of family, personal or medical secrets; violation of correspondence, telephone or telegraph information; dissemination of untrue information that defames the dignity and honor of a citizen; violation of the rights to his name, his image; violation of his copyright and related rights, etc.

     Bodily pain should be understood as the pain of the body that a citizen feels due to the use of force or harm to health.

In accordance with subparagraph 1) of Article 187 of the civil code, claims for compensation for moral damage do not apply to the terms of the claim, except in cases stipulated by legislative acts. At the same time, courts should pay attention to the fact that in accordance with the law of the Republic of Kazakhstan dated April 6, 2016 No. 480-V "on legal acts", legislative acts providing for the protection of citizens ' own non-property rights apply to legal relations arising after their entry into force, unless otherwise provided by legislative acts. Paragraph 8 of the law of the Republic of Kazakhstan dated July 1, 1999 No. 410-I" on the introduction into force of the Civil Code of the Republic of Kazakhstan (special part) " establishes that non-property damage caused, referred to in articles 922 and 923 of the Civil Code, shall be compensated if it was caused before July 1, 1999, but not earlier than July 1, 1996, and

     A claim for compensation for moral damage caused before the entry into force of a legislative act providing for the victim's right to compensation for such damage is not subject to satisfaction. Such damage is not subject to satisfaction even in cases where, after the entry into force of the legislative act, The Citizen continues to inflict mental or physical suffering.

     If the unlawful act (inaction) in which moral harm was caused to the victim began before the entry into force of the legislative act and continued after its entry into force, then the moral damage caused by the unlawful act (inaction) committed after the entry into force of the legislative act is subject to compensation.

     Warning. Paragraph 4 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

Compensation for moral damage is carried out when the guilt of the perpetrator of the harm is established. In cases stipulated by the Civil Code, their own non-property benefits and rights are subject to judicial protection, regardless of the fault of the person who violated these rights.

     The plaintiff is obliged to indicate in the claim the circumstances of the violation of his Real own non-property benefits and rights, provide evidence confirming it and indicate the need for their protection, as well as the amount of compensation, which, in his opinion, ensures compensation for moral damage caused to him.

     Claims of Citizens for compensation for moral damage caused by the bodies conducting criminal proceedings are subject to consideration in the order of civil proceedings.

In accordance with paragraph 1 of Article 917 of the civil code, a person who caused moral damage by an illegal (intentional or negligent) act (omission) must compensate for it in full.

      Full compensation for moral damage is defined as the actions on the part of the Causer that he is obliged to perform in accordance with the direct requirement of the norms of his legislative acts (for example, in accordance with the law of the Republic of Kazakhstan dated July 23, 1999 No. 451-I "on mass media", the mass media is obliged to publish corrections to untrue information distributed by him; In accordance with Article 41 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), the body conducting the criminal process is obliged to take measures to eliminate the consequences of moral damage) and, upon request, to pay compensation to the victim for moral damage in the amount established by a court decision.

According to the requirements of Article 952 of the Civil Code, moral damage is compensated in monetary form. At the same time, the court determines the amount of compensation based on the criteria of common sense and fairness.

     The amount of compensation for moral damage should be considered reasonable and fair if, when determining it, circumstances related to the violation of the citizen's own non-property rights are taken into account. The amount of monetary compensation will be a measure of liability for the commission of an unlawful act and for the consequences that it has caused to the perpetrator of harm.

     The amount of compensation for moral damage collected by the court of first instance may be reviewed at higher judicial instances if this amount does not meet the above requirements.

When determining the amount of compensation for moral damage, the courts determine the severity of the suffering of the soul and body caused to The Citizen, its subjective assessment, as well as objective information testifying to these circumstances, namely:

     the vital importance of their own non-property benefits and rights (Life, Health, Freedom, inviolability of housing, personal and family secrets, honor and dignity, etc.);

     the degree of mental or physical suffering experienced by the victim (imprisonment, infliction of bodily harm, loss of close relatives, loss of ability to work or its limitation, etc.);

     it is necessary to take into account the type of guilt (intent, negligence) of the perpetrator of harm, which is necessary for compensation for moral damage.

     When determining the amount of compensation for moral damage, the court has the right to take into account other circumstances enshrined in the case materials, in particular, the family and property status of the person being held liable for moral damage caused to the victim.

In accordance with paragraph 1 of Article 917 and Paragraph 2 of Article 951 of the Civil Code, the obligation to compensate for moral damage is carried out on the following grounds:

     committed an offense (tort) directly in relation to an individual that encroaches on his own non-property rights and benefits protected by law by this person;

     there was a causal relationship between the offense and the damage caused to the victim and the violation of his own non-property rights belonging to him, which in the event of his death led to a violation of his own non-property rights belonging to his close relatives, and pain of the soul and body;

in addition to cases of compensation for innocent personal non-property damage provided for by law, the harm arises when the perpetrator is guilty.

     The absence of any of the above grounds excludes the possibility of protecting your own non-property goods and rights, since they are considered unbreakable.

In accordance with Article 22 of the law of the Republic of Kazakhstan dated April 14, 1993 No. 2143-XII "on rehabilitation of victims of mass political repressions" (hereinafter-the law "on rehabilitation of victims of mass political repressions"), the courts shall be liable for compensation of property and non — property damage to victims of mass political repressions for each month of illegal stay in places of deprivation of Liberty in the amount of three quarters of the monthly calculation index established by the legislation of the Republic of Kazakhstan from January 1, 2001 let him pay attention to what is being considered. However, the total amount of compensation for property and non-property damage should not exceed 100 monthly calculation indices.

     Compensation for moral damage is inextricably linked to the identity of the victim, and, accordingly, this compensation is not paid to the heirs of victims of mass political repression, except in cases where this compensation was calculated (collected by the court), but was not received due to the death of the rehabilitated person.

      It should be understood that the instruction of the courts in Article 26 of the law "on rehabilitation of victims of mass political repression" on the effect of articles from 18 to 24 inclusive on victims of mass political repression acquitted before the entry into force of this law gives retroactive force to the application of these articles without restricting the rights of rehabilitated persons after the adoption of the law.

     Warning. Paragraph 10 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

In accordance with paragraph 1 of Article 922, paragraphs 1 and 2 of Article 923, paragraph 3 of Article 951 of the Civil Code:

     state bodies may issue acts that do not comply with legislative acts.;

     illegal conviction;

     illegal criminal prosecution;

     illegal detention, house arrest, receipt of a restraining order as a preventive measure;

     illegal use of administrative penalties in the form of arrest;

     illegal placement in psychiatric or other medical institutions;

     moral damage caused to a citizen as a result of other circumstances provided for by legislative acts is compensated at the expense of the state treasury (funds from the Republican or local budget), regardless of the fault of the perpetrator of the harm.

The state is the defendant in claims for compensation for moral damage at the expense of the state treasury (Republican or local budget), and in this case it is advisable to determine the subject of consideration of cases under this category by the courts at the location of the representative of the state treasury.

     Representatives of the state treasury may be the Ministry of Finance of the Republic of Kazakhstan or other state bodies, legal entities or citizens who have special powers to represent the interests of the state treasury.

     When considering cases of this category, the courts must identify a specific representative of the state treasury and the administrator of the relevant budget program and involve them in the case.

When considering citizens ' claims for compensation for moral damage caused by a source of high danger, the courts should pay attention to the fact that the owner of a source of high danger is obliged to compensate for moral damage if he cannot prove that this damage was caused due to destructive force or the intent of the victim, or due to the temptation of the owner as a result of illegal actions of the

     The courts should understand the victim's actions, which contributed to causing moral harm to the victim, as evidence of knowingly intentional violation of the rules of safe work with a source of high danger (mention of dogs and other pets; mention of wild animals in zoos and other places where they are kept in custody; violation of the procedure for using fire-hazardous, explosive, ionizing and other things and substances dangerous to human health and life, etc.).

     The right to dispose of the owner of a high-risk source should be understood as the use by the owner of a high-risk source of appropriate and sufficient measures to prevent the departure of a third party from using a high-risk source of his will under normal conditions.

     In case of causing property damage to the victim by illegal actions by persons who have a source of high danger, the duties of compensation for moral damage are performed directly by the persons who have caused such damage. If a source of high danger falls out of the owner's rightful possession, but at the same time it is found that he is guilty, then the responsibility for property damage lies directly with the perpetrator of harm in equity, as well as with the owner of the source of high danger.

When considering claims for recovery of wages and compensation for moral damage, the courts should take into account that on the basis of Article 24 of the Constitution of the Republic of Kazakhstan (hereinafter referred to as the Constitution), everyone has the right to freedom of work, free choice of activity and profession, working conditions in accordance with the requirements of safety and cleanliness, remuneration for work without any discrimination. Illegal dismissal, untimely payment of wages is a violation of the constitutional right of the employee to receive remuneration for his work, which, when filing a claim for the recovery of wages, also entails a violation of the non-property rights of citizens subject to protection.

In accordance with subparagraph 13) of Paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan" on marriage (matrimony) and family " (hereinafter referred to as the code on marriage), close relatives are parents (parents), children, adoptive parents, adoptive parents, brothers and sisters (brothers and sisters), grandparents, grandchildren. The need to protect marital and family relations arises from Article 27 of the Constitution and Article 2 of the marriage code, according to which the family is under the protection of the state.

     When considering cases on claims of close relatives of the deceased, spouse/spouse for compensation for moral damage, the court must provide them with evidence of the cause of suffering, their actual kinship, family relationship with the deceased, as well as other criteria for assessing the caused moral damage. In this case, the requirements of the above persons are subject to consideration.

      In order to prevent repeated appeals of each close relative, spouse/spouse with a claim in civil cases, the courts should resolve the issue of participation of all close relatives in the case as third parties on the plaintiff's side at the stage of preparing the case for consideration and explain to them the right to file an Independent claim in accordance with the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC).

     Warning. Paragraph 15 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

To draw the attention of the courts that the issuance of an acquittal by a court on private prosecution cases, as well as the termination of a criminal case on the grounds provided for in subparagraph 5) of part one of Article 35 of the CPC, in this case cannot be grounds for assigning to a private prosecutor the obligation to compensate for moral damage to an rehabilitated person, since there is an implementation of the constitutional right to appeal to the bodies referred to the competence of considering these complaints.

     The claim of an acquitted person in a private prosecution case for the recovery of compensation for moral damage can be satisfied only if the personal complaint has no legal basis and the appeal to the court is aimed at causing harm to another person (abuse of rights). At the same time, the plaintiff must prove the fact of abuse of Rights sent by the prosecutor.

     Warning. Paragraph 16 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

In accordance with paragraph 6 of Article 143 of the civil code, if information has been disseminated against a citizen that discredits his honor, dignity or business reputation, he has the right to demand compensation for damage and moral damage caused to him by their dissemination, along with the denial of such information.

     In cases of this category, the defendant is not held liable for the assessment judgment.

     The requirement to protect the business reputation of a citizen, with the exception of the requirement to compensate for moral damage, also applies to the protection of the business reputation of a legal entity. To protect the business reputation of a legal entity, the rules on compensation for losses in accordance with the procedure established by the civil code apply.

     Civil legislation does not provide for compensation for moral damage to a legal entity, and in this regard, the courts should refuse to accept claims from legal entities for compensation for moral damage, and if the statement of claim is accepted, the proceedings in the case are subject to termination.

     When making claims for compensation for moral damage, the plaintiff must prove that he has experienced mental pain and bodily suffering.

     The court, evaluating the presented evidence, taking as a basis the criteria of reasonableness and justice, when determining the amount of moral damage, should take into account the nature of the disseminated data, the limits of the dissemination, the type of guilt of the defendant, his material condition and other noteworthy circumstances.

To draw the attention of the courts that the law of the Republic of Kazakhstan dated December 18, 2000 No. 126-II" on insurance activities " and other regulatory legal acts in the field of compulsory insurance of civil liability does not provide for insurance of the liability of the owner or carrier of a motor vehicle to passengers for moral damage caused to the victim.

     Insurance organizations (insurers, reinsurers) are not obliged to compensate for moral damage to third parties in connection with the occurrence of an insured event.

     In the event of an insured event, the obligation to compensate for moral damage must be assigned to the owner or carrier of the vehicle.

     If the voluntary insurance agreement provides for insurance of non-property benefits and rights of the insured, then insurance payments must be made in accordance with the terms of the voluntary insurance agreement.

To the courts, in accordance with paragraph 4 of Article 951 of the Civil Code, the violation of the property rights of individuals excludes the possibility of compensation for moral damage, namely: rights related to the possession, use and management of property; property claims arising between participants in legal relations (property or obligation rights, including compensation for damage caused to the life or health of a citizen, due to non-fulfillment or improper fulfillment of obligations, etc.), as well as the right of the authors to receive remuneration for a work created by them or an invention discovered by them;

     If the violation of the property rights of a citizen occurs simultaneously with the violation of his own non-property benefits and rights, then along with the satisfaction of the claim for compensation for property damage caused, the claim for compensation for moral damage is also subject to satisfaction (for example, illegal possession of the victim's property in violation of the inviolability of housing; violation of the consumer's right to quality goods; ownership of authorship, etc.).

      In accordance with Article 352 of the Civil Code, failure to comply with the obligations provided for in articles 272 to 288 of the civil code may serve as a basis for compensation for moral damage, if the improper performance of the obligation is not related to the violation of the property rights of the creditor. Improper performance of obligations affecting the property rights of the debtor (for example, evasion of the return of money under a loan agreement; non-fulfillment of obligations in terms of payment of the cost of the purchased item under the purchase and sale agreement or transfer of the subject of the transaction, etc.) excludes the possibility of compensation for moral damage in accordance with paragraph 4 of Article 951 of the civil code.

     Warning. Paragraph 19 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

Moral damage caused to the victim by illegal actions jointly committed by several legal entities or individuals is subject to compensation in full in accordance with paragraphs 1 to 4 of Article 287 of the civil code and Article 932 in a joint or shared manner with those who caused such damage.

     Warning. Paragraph 20 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

In case of causing moral harm to the victim by young children or minors, or by citizens in accordance with the procedure established by law who are incapacitated or have limited legal capacity or are legally capable, but for health reasons are not able to understand the essence of their actions and control them, the courts shall compensate them in accordance with the rules established by articles 925 to 930 of the civil code inclusive.

     Warning. Paragraph 21 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

Applications of Public Associations for the protection of consumer rights for compensation for moral damage to an unspecified group of consumers are not subject to consideration in the order of civil legal proceedings, since the claim for compensation for moral damage is inextricably linked with the personality of a citizen.

If the plaintiff is not exempted from paying the state fee in accordance with the legislation, the state fee is subject to payment in accordance with the APC on citizens ' claims for compensation for moral damage and the code of the Republic of Kazakhstan "on taxes and other mandatory payments to the budget (tax code)".

     When the claimant submits claims for compensation for property and moral damage in one statement of claim, the state fee for each claimed claim is subject to payment separately. The price of claims for recovery in monetary terms of compensation for moral damage caused by the dissemination of information discrediting honor, dignity and business reputation is determined by the amount required for recovery.

      According to the APC, when the claim for the recovery of moral damage is satisfied, the court is obliged to collect at the expense of the defendant the state duty that the plaintiff paid or had to pay at the time of filing the application, respectively, in favor of the plaintiff or the income of the local budget. At the same time, the specified amount of the state duty is subject to collection in proportion to the amount of the satisfied claim for compensation for moral damage.

     Warning. Paragraph 23 as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of its first official publication).

In the decision on compensation for moral damage:

     determine the nature of the offense that caused moral harm to the victim;

     to demonstrate the violated right and own non-property rights and benefits of the victim;

     to provide information about the suffering of the soul or body suffered by the victim;

     the method of protection of non-property rights (restoration of the state of non-infringement; elimination of the consequences of moral damage; recovery of compensation for moral damage), as well as justification of the amount of moral damage;

     it should reflect the norms of material law that were guided by when making a decision.

     In the resolution part of the court decision, it is necessary to indicate the type of liability belonging to the defendant (subsidiary, shared, shared, individual), as well as the source of moral damage (property of an individual or money in a bank account of a legal entity; at the expense of the state treasury). When making compensation for moral damage from the state treasury, the court is obliged to indicate the administrator of the relevant budget program, which ensures the execution of a court decision that has entered into legal force in accordance with the procedure established by law.

Recognize as invalid:

      1) normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 3" on the application by courts of legislation on compensation for moral damage";

      2) normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 3" on amendments and additions to the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001 No. 3" on the application by courts of legislation on compensation for moral damage".

In accordance with Article 4 of the Constitution of the Republic of Kazakhstan, this normative resolution is included in the composition of the current law, is universally binding and enters into force from the date of its official publication.

The Republic Of Kazakhstan

Chairman Of The Supreme Court

K. Mami.

The Republic Of Kazakhstan

Judge of the Supreme Court,

Secretary of the plenary session

K. Shaukharov.

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