Compensation for material damage. What are moral damages for?

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02.01.2019

We offer you to download the statement of claim for compensation for material damage, take the submitted sample as the basis for the claim and use our recommendations for drawing up and filing an application with the court.

From the point of view of civil law, a claim for damages is a classic claim and a way to protect civil rights. Duty of a person to compensate material damage follows from the principle of damages, enshrined in Art. 15 of the Civil Code of the Russian Federation: damage to property or its loss as a result of the actions of another person is recognized as real damage, and in addition, expenses for the repair of such property and, possibly, lost income may be included in losses.

When recovering material damage, depending on the legal relationship between the plaintiff and the defendant, a number of features are established, for example, when, etc. In this case, a general option for compensation for material damage between the parties will be considered civil relations. The rules for compensation for material damage are contained in Art. 1064 of the Civil Code of the Russian Federation, special in ch. 59.

Drawing up a claim for compensation for material damage

When preparing a statement of claim, it is necessary to be guided by the norms of substantive law (the relevant articles of the Civil Code of the Russian Federation) and the Code of Civil Procedure of the Russian Federation (Articles 131 and 132 on the form and content of any statement of claim). The plaintiff in the case is the owner of the item, which suffered real damage and as a result of which it turned out to be damaged (or lost). With the defendant, in this case, he may be in contractual relations(for example, lease, related to the transfer for storage, contracts, including construction, etc.)

Moreover, if the owner does not own such property for some reason, you must first use it.

In the statement of claim, it is necessary to describe what kind of property (individual characteristics) was harmed, by what actions (inaction) of the defendant, what such harm was expressed in (damage to property, its loss), what is the causal relationship between damage and actions (inaction) defendant. It is desirable to describe how exactly the defendant gained access to the property.

The statement of claim must contain an estimate of the damage caused in money equivalent(Moreover, the calculation also includes the funds necessary to pay for repair services when the plaintiff involves other persons). If it is difficult to independently assess the amount of damage that will amount to, you can use the services of an appraiser or draw up (then calculate the price of the claim based on market prices).

The evidence in the case will be witness's testimonies(both on the circumstances of the harm, and on the fact of the damage and its size), written acts expertise, bodies state power(on attraction to administrative responsibility or refusal to initiate proceedings), other written evidence. If the plaintiff and the defendant were in a contractual relationship, a copy is attached relevant treaty.

The statement of claim is signed by the plaintiff or his representative in the presence of a power of attorney certified in accordance with the procedure established by law.

Filing a claim for damages

The statement of claim and all written evidence shall be submitted in the number of copies according to the number of persons participating in the case. When determining and jurisdiction, general rules are used - a claim is filed in district court(if the value of the claim is higher than 50,000 rubles) at the place of residence of the defendant. If the value of the claim is less than 50,000 - to the Magistrate's Court.

The statement of claim can be sent by mail or filed directly with the court reception. It is obligatory to pay before going to court - it is determined from the price of the claim. A copy of the receipt of payment of the state duty is provided to the court along with the claim.

Sample letter of claim for damages

IN ___________________________

(name of court)

Plaintiff: ______________________

(full name, address)

Respondent: _____________________

(full name, address)

Claim price: ________

(cost in rubles)

STATEMENT OF CLAIM

about compensation for material damage

"____" ______ ______ (indicate the date when the damage was caused) to the property owned by me, namely: _____________________ (indicate the subject, the list of property with individual characteristics). Ownership of the specified thing (objects) is confirmed by ___________________ (contract of sale, certificate of registration of ownership, etc.).

Material damage consists of __________________________________________ (what features of the item have lost their properties, what is the damage), as a result of which the item has lost its functionality (requires repair, replacement, has lost its consumer properties).

Damage to property was caused as a result of actions (inaction) of the Defendant through his fault: _________________________ (describe what actions caused damage or as a result of what actions (inaction) damage was caused to property). The fact of causing harm is confirmed: __________________ (list documents or circumstances of causing harm).

To determine the amount of material damage caused to my order, an independent assessment was carried out by ____________________ (details of a legal entity or an appraiser acting on the basis of a license).

In accordance with paragraph 1 of Art. 1064 of the Civil Code of the Russian Federation, 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.

Based on the foregoing, guided by Article 1064 of the Civil Code of the Russian Federation, articles - of the Civil Procedure Code of the Russian Federation,

Collect from __________ (full name of the defendant) in my favor funds in the amount of ____________ RUB. as compensation for material damage caused to my property.

List of documents attached to the application (copies according to the number of persons participating in the case):

Copies of the claim
Document confirming the payment of the state fee
Documents confirming the calculation of the damage caused
Documents confirming the right of ownership (legal possession) of property that has been damaged
Other evidence supporting the grounds for a claim for compensation for material damage

Date of application "___" _________ ____ Signature: _______

Actions to determine the amount of property damage occur, as a rule, in the following situations:

fire;
flooding of residential and non-residential premises;
harm to health.

Russian legislation (Articles 1064 and 15 of the Civil Code of the Russian Federation) regulates the right of legal entities or individuals who have been subjected to material damage, make claims for damages in full by means of . To apply to the judiciary it is necessary to establish the amount of damage.

Types of damage caused

There are two types of damage:

real damage- this is the cost of damage to personal property (for example, a car, apartment, luggage), which includes the cost of restoring the object, regardless of whether they have already been made or will be. These are direct costs (for example, the cost of repairs, treatment, etc.);
Lost profit- this is the absence of income due to the fault of the person who caused the damage. For example, failure to perform or not received during the period of incapacity for work entails a loss of income.

Calculation of material damage

Calculation of material damage is made, based on the characteristics of the property and the type of damage. In case of harm household appliances, the amount of property damage is determined by receipts confirming the cost or repair of the object. As a result of harm to health, payment documents are submitted to the court, indicating the costs of treatment, prosthetics, etc.

If damage is dealt movable property or property(car, apartment, premises), to find out the amount of material damage, you need:

conclude a contract for the performance of work on the assessment of the damaged object;
be sure to notify all interested parties (both victims and those who caused harm) in advance of the date of the inspection of the damaged property;
be present during the inspection of the object of this object and the preparation of the inspection report by the appraiser.

specialist based on regulatory requirements and guidelines, based on the inspection:

establishes the degree and nature of damage to the object;
determines the cost of restoration costs and the amount of material damage suffered by the owner of the damaged object;
draws up a report on the assessment of the condition of the object with the application of reliable calculations of the property damage caused, estimates and calculations of the cost of repair and restoration work.

The real damage is mostly obvious. The appraisal report is evidence for the court, it contains actual data on real costs.

Lost Profit Calculation

The amount of lost profit is defined as fact of loss of income from the actions of the defendant. And, if it is not difficult to find out the amount of lost wages on the basis of settlement and payment documents confirming its size (, income statement), then proving the loss of income in terms of lost profit causes difficulties that only an experienced lawyer can handle.

The question of lost income arises, as a rule, in contractual operations. When determining the amount of lost income, you need to calculate financial model to determine the amount of profit, subject to all and the amount of the difference between the calculated and accounting values will be lost profit.

Note that to determine the amount of property damage, it is possible and necessary to involve appraisers and lawyers. It is quite difficult to cope with this task without the support of specialists. In conclusion about costs. Ultimately, all costs of the trial are compensated by the losing party, as well as the payment of the work of specialists.

Material or property damage means the loss of a person material assets(in full or in part) due to causing harm to him. At the same time, it is necessary to distinguish between the concept of damage and material harm, since property damage is considered in a broader sense.

Material damage can be the result of both property and moral damage. If harm is done to human health, this entails the emergence of treatment costs, as well as the loss of part of the income. An example is the situation when a person, after a quarrel with a neighbor in the stairwell, due to the illegal actions of the latter (for example, noisy behavior in the middle of the night) had a heart attack. In this case, the victim has every right to recover from the culprit compensation for material damage, which is determined by the cost of treatment, recovery, as well as a partial loss of salary (if any).

Types of material damage

There are two types of compensation for material damage, among which are natural and monetary. For example, if something is damaged, the culprit must compensate the victim for the damage by buying exactly the same thing. It is about compensation in kind. Compensation for damages involves the payment of a certain amount. Despite the fact that the legislation welcomes in-kind compensation, in practice monetary compensation is used more often, due to the peculiarities of each specific situation.

Cases of recovery of material damage

Several cases should be considered in which the injured party has the right to claim compensation for material damage.

At the same time, both individuals and legal entities have such a right:

Firstly, a person who did not fully or did not receive income due to dishonest actions, negligence, etc., can claim compensation. by another person.
Secondly, the recovery of material damage is due to people whose property was damaged or lost as a result of someone else's actions.
Thirdly, persons who had to bear expenses due to the fault of other people have the right to material compensation. It is worth noting that not only an illegal action, but also the inaction of a person makes him guilty, and obliges him to compensate property damage to the victim.

In the legislation of the Russian Federation, property damage is defined as a combination of three components:

The cost of restoring the object;
Expenses for the restoration of the violated right;
Losses due to lack of expected income.

A special commission is formed to determine the damage. Its task is to study in detail the expenses and material losses of the victim, and, on the basis of regulations, determine the amount of damage. Sometimes specialized expertise is required.

If the damage is related to certain property, then the victim must act according to the following plan:

1. To begin with, it is required to conduct a study of the damaged property, having previously drawn up an agreement on its valuation.
2. The next step should be the agreement of the parties on the ongoing study of the property, since the persons interested in this process are most likely to express a desire to be present at the assessment.
3. Inspection of damaged property is carried out by a specialist in this field, for example, a forensic expert.
4. Upon completion of the study, it is required to determine the costs that will be required to restore the property, and, accordingly, the amount of material damage.

By acting according to the plan, the injured party gets expert opinion with legal force. In this conclusion, the specialist must indicate the amount of costs and material compensation.

Compensation for material damage

Compensation for property damage is the obligation of the party that, through its actions (or inaction), caused a loss to the injured party.

The rules and procedure for the procedure for paying compensation are enshrined in the legislation of the Russian Federation.

Compensation for the damage caused is possible both by mutual agreement and by filing a claim-application in court.

There are general rules of jurisdiction:

If the value of the claim is less than 50,000 rubles, then the claim is filed with the Magistrate's Court;
with a claim value of more than 50,000 rubles - to the district court.

Steps to follow before submitting a claim for compensation for property damage:

It is necessary to provide evidence of the fact of causing harm;
it is necessary to prove the existence of a causal relationship between the action (or inaction) of the defendant and the negative consequences.

See here for more details about negligence, the definition and types of liability for such acts or inaction.

This order valid for those cases where material losses were incurred as a result of the actions of an individual.

If the defendant is a legal entity or an entrepreneur, then only proof of the fact of causing damage is sufficient.

The next step is to draw up a statement of claim, which will become the basis for considering the case for the appointment of compensation.

Application goes to court general jurisdiction, if the victim is an individual, and to the arbitration court - when resolving corporate disputes between legal entities or entrepreneurs.

General procedure for damages

If the relations regulated by the contract have been established between the parties involved in the case of causing property damage, then the payment of losses should also occur based on certain clauses of the relevant contract.

A special case of contractual relations is the relationship between the employee and the employer. These relations are regulated by the Labor Code.

Compensation of losses by the employee occurs after the discovery of the damage caused. The employer must conduct an audit to clarify the circumstances of the employee's involvement in the fact of causing damage.

The compensation procedure provides for the possibility of voluntary repayment of the loss at a time or in installments.

When an employee refuses voluntary payment compensation, the employer has the right to collect through judicial procedure. The statute of limitations in this case is 1 year from the date of discovery of the damage.

It happens that material damage is inflicted on the employee by the employer. In this case, the obligation for compensation of material damage to the employee is fully borne by the employer. In case of violation of the term for payment of monetary rewards (salary, bonuses, etc.), the amount is calculated taking into account interest for the delay period.

Indemnification of claims within the framework of non-contractual relations are regulated either by agreement of the parties, or in judicial order.

Judgment can be made only on the basis of the filed statement of claim of the victim. The claim is sent to the court by mail or delivered to the reception of the court.

The term for compensation for material damage is established by the legislation of the Russian Federation and is 3 years from the onset of the event, as a result of which the damage occurred.

When writing a statement of claim, it is worth remembering that all claims related to compensation for damages must be justified and confirmed.

The application must be made in writing and comply with the requirements prescribed in Article 131 of the Civil Code of the Russian Federation.

The application must contain the following information:

The official name of the court to which the document is filed;
surname, name, patronymic of the plaintiff (in full), address of residence. If the applicant performs all actions through a trustee, then all the details of the intermediary must be indicated;
All personal information about the defendant, if it is an individual. Location of the organization, if the requirements are presented to a legal entity;
description of the essence of the damage, the exact date, place and circumstances that caused material damage;
evidence of the circumstances on the basis of which, in the opinion of the plaintiff, the loss was inflicted;
the amount of compensation for material damage;
a description of the applicant's actions in attempts to resolve the conflict out of court;
list of documents attached to the application;
handwritten signature of the plaintiff or his authorized representative.

Article 132 of the Civil Code of the Russian Federation provides for the following documents that must be attached to the claim:

Copies of the statement of claim in an amount equal to the number of defendants;
a receipt confirming the payment of the state duty;
documents evidencing the loss;
calculations for compensation for material damage (original and copies according to the number of defendants);
a power of attorney to represent the interests of the plaintiff in the event that the plaintiff does not present his claim in person.

The most common types of damage caused are:

Bay living area;
accident;
fire in the apartment (house);
low-quality performance of works (services);
lack of payments of alimony and urgent payments.

The calculation of the damage caused depends on the specific circumstances and the claims put forward by the plaintiff:

The price of a claim for the recovery of the amount of money borrowed is this amount plus additional accruals(interest, penalties, etc.), if it was specified in the loan agreement;
when assessing the damage caused real estate, a certificate of the inventory value of the object is required. Compensation is calculated based on this amount;
when determining the price of a claim for payments (alimony, urgent payments, etc.), material damage is calculated individually.

For the recovery of alimony, damage is calculated for 1 year. For urgent payments - according to the totality of expected payments, but not more than 3 years.

If the plaintiff is mistaken in the amount of the amount of money presented for payment, then the judge has the right to determine this amount independently.

Terms of reimbursement

The limitation period for compensation for material losses is 3 years from the moment of the occurrence of the event that caused the damage.

This rule does not apply in case of harm to human life and health.

When pre-trial settlement material conflicts between the employee and the employer, the terms for payment of compensation are agreed upon by mutual agreement of both parties.

It can be a one-time payment or an installment payment. In any case, an additional agreement is drawn up, which specifies the date of repayment of the debt.

If there is judicial permission conflict on compensation for the damage caused, then the terms of payments will be determined in judgment. It is controlled by the bailiffs.

Features of compensation for damage caused by a crime

The main feature is the fact that there is no need to single out a claim for compensation for material damage caused by a crime in a separate case. It can be filed as part of the criminal process.

The limitation period does not begin from the moment the crime was committed, but from the moment the harm was discovered by the victims, and lasts 3 years.

Guilty of committing a crime and causing damage pays compensation from his earnings for the time spent in prison or colony.

The amount payable but not yet paid is indexed to the change in living wage in the country.

Raise legal literacy population in a general context, and in matters of recovery of compensation for material damage - in particular, leads to a civilized solution of any conflicts that arise between individuals and legal entities.

In what cases can an employee claim compensation for material damage?

In most cases, employees can cause material damage to an enterprise in the following way: by action or complete inaction.

The first refers to the production (output) of (services) of inadequate quality (defective) through the fault (and not through the fault) of the employee, theft of property and goods belonging to the enterprise, causing shortages in excess of the norms natural loss.

As a result of inaction, fines, penalties, shortages may arise. Of course, material damage can also occur as a result of non-compliance with labor protection conditions on the part of the employee, for example, a fire due to a forgotten kettle left on.

Compensation for material damage caused by an employee can be carried out in the following ways:

On a voluntary basis at the request of the employee in the form of deductions from wages or at the expense of a voluntary contribution to the cash desk of the enterprise without limiting these amounts in the amount;
by decision of the head of the enterprise (and for the head of the enterprise - by decision of a higher head or an authorized body) in statutory the amount based on the written conclusions of the relevant commissions and state bodies;
by decision of the judicial authorities in the amount established by the court;
wages at reduced rates (when defective products are produced through no fault of the employee).

Property damage statement

From the point of view of civil law, a claim for damages is a classic claim and a way to protect civil rights. The obligation of a person to compensate for the material damage caused follows from the principle of compensation for losses, enshrined in Art. 15 of the Civil Code of the Russian Federation: damage to property or its loss as a result of the actions of another person is recognized as real damage, and in addition, expenses for the repair of such property and, possibly, lost income may be included in losses. When recovering material damage, depending on the legal relationship between the plaintiff and the defendant, a number of features have been established, for example, when recovering material damage from an employee, compensation for damage in an accident, etc. In this case, a general option for compensation for material damage between the parties to a civil legal relationship will be considered. The rules for compensation for material damage are contained in Art. 1064 of the Civil Code of the Russian Federation, special - in Ch. 59.

Drawing up a claim for compensation for material damage

When preparing a statement of claim, it is necessary to be guided by the norms of substantive law (the relevant articles of the Civil Code of the Russian Federation) and the Code of Civil Procedure of the Russian Federation (Articles 131 and 132 on the form and content of any statement of claim). The plaintiff in the case is the owner of the item, which suffered real damage and as a result of which it turned out to be damaged (or lost). At the same time, he may be in a contractual relationship with the defendant (for example, lease, related to the transfer for storage, a contract, including construction, etc.).

Moreover, if the owner does not own such property for some reason, it is first necessary to use a statement of claim for the recovery of property from illegal possession.

The statement of claim must include a calculation of the damage caused in monetary terms (in this case, the calculation also includes the funds necessary to pay for repair services when the plaintiff involves other persons). If it is difficult to independently assess the amount of damage that will amount to the price of the claim, you can use the services of an appraiser or draw up an application for the appointment of an examination (then calculate the price of the claim based on market prices).

Evidence in the case will be testimonies (both on the circumstances of the harm, and on the fact of the damage caused and its size), written acts of expertise, state authorities (on bringing to administrative responsibility or refusing to initiate proceedings), other written evidence. If the plaintiff and the defendant were in a contractual relationship, a copy of the relevant contract is attached.

The statement of claim is signed by the plaintiff or his representative in the presence of a power of attorney certified in accordance with the procedure established by law.

Filing a claim for damages

The statement of claim and all written evidence shall be submitted in the number of copies according to the number of persons participating in the case. When determining jurisdiction and jurisdiction, general rules are used - a claim is filed with a district court (if the value of the claim is more than 50,000 rubles) at the place of residence of the defendant. If the value of the claim is less than 50,000 - to the Magistrate's Court.

The statement of claim can be sent by mail or filed directly with the court reception. It is mandatory to pay a state duty before going to court - it is determined from the price of the claim. A copy of the receipt of payment of the state duty is provided to the court along with the claim.

If the debtor does not meet you halfway, but strong evidence of his guilt has been collected, you can safely proceed to draw up a claim. In order to make it easier to write an appeal, you need to take a ready-made sample of a statement of claim and use it as a good example. Such a sample can be taken in court, borrowed from a lawyer, or found on the Internet.

Each compiler must be careful when writing a statement of claim for the recovery of material damage. You also need to follow certain rules writing a claim. It is recommended to use neutral vocabulary, show respect for the referee and the opponent. It is not advisable to give an assessment of what happened, the judge will be able to make the right decision without your assistance. If you are using a ready-made sample, you can prevent mass common mistakes.

When drawing up a statement of claim, it is necessary to refer to the summaries of the law, use the Civil Code and the Code of Civil Procedure. In accordance with these codes, claims are made exclusively in writing. The applicant has the right to both print the text of the application on a computer and write by hand.

To begin with, in the upper right corner of the sheet indicate:

Full name of the court (address and information about the judge);
information about the plaintiff and defendant (name, address, phone numbers);
the price of the claim (it is important to indicate in rubles).

In the middle of the sheet write the name of the document. For example, a claim for compensation for harm to health.

Describe the damaged property (signs, characteristics, etc.);
actions or omissions of citizens, responsible for damage;
describe the causal relationship between the act of the defendant and the loss caused;
state how the defendant gained access to the plaintiff's property;
calculate the damage;
introduce evidence base(witness testimony, expert examination results, etc.);
list of documents in the case.

The number of applications corresponds to the number of participants in the process. When describing violations in a statement, it is customary to refer to articles of the law. If the Code of Civil Procedure is like a dark forest for you, contact a lawyer, he will help interpret the articles, and also correctly enter necessary links to the content of the claim. Be sure to pay the state fee before applying. A receipt confirming the payment of the state duty is attached to the claim. Without the specified receipt, the application will not be considered.

Claim Rules

According to the Civil Code of Russia, owners or owners of damaged property can file a claim for damages. The defendant may be in a contractual relationship with the plaintiff, that is, agreements or agreements were signed between the parties. For example, a lease agreement office space And so on.

The claim for compensation for harm to health or for damages is considered by the court. It is important for the plaintiff to correctly determine the jurisdiction, that is, the specific court that should consider the case. Jurisdiction directly depends on the value of the claim. If the amount of damage is up to fifty thousand, then the case is considered by the world court, if it is higher than the specified sum, the case is transferred to the district court.

The Civil Code regulates the limitation period for filing applications. It is recommended that you file lawsuits with a judge for review as soon as you notice a violation. The statute of limitations takes effect as soon as the damage has been caused. Specified term The limitation period is three years from the day the victim became aware of the damage. If the statute of limitations has expired, claims can still be sued in general order.

If the statute of limitations has expired, but you filed an appeal with the judge, be prepared for the fact that the expired statute of limitations can work against you. The defendant has the right to file a counterclaim with the court and demand a rejection claims due to the expiration of the statute of limitations. If the defendant does not file a counterclaim, the judge will not take into account the overdue statute of limitations and will consider the appeal. A sample application for a missed deadline can be found on the Internet.

Caused material damage

The civil law provides for the presumption of guilt of the tortfeasor, which assumes that evidence of the absence of guilt must be presented by the defendant himself. The victim submits evidence confirming the fact of causing material damage, the amount of damage caused, as well as evidence that the defendant is the tortfeasor or a person obliged by law to compensate for the damage.

In cases specifically stipulated by law, material damage is subject to compensation regardless of fault, for example, if the damage was caused by a source heightened danger. In such a situation, the owner of the source of increased danger is obliged to compensate for the damage caused. However, if the harm caused as a result of the interaction of sources of increased danger to their owners, then it is compensated on a general basis, that is, by a person found guilty of causing material damage.

Persons responsible for causing material damage

By general rule caused material damage is subject to compensation by the person who caused it.

At the same time, in some cases, the law may impose an obligation to compensate for damage on persons who are not the tortfeasors:

Damage caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local self-government bodies or officials of these bodies is subject to compensation at the expense of the treasury of the Russian Federation, a constituent entity of the Russian Federation or a municipality.
- Harm caused to life, health or property of a citizen or property of a legal entity due to structural, prescription or other defects in the product, work or service, as well as due to inaccurate or insufficient information about the product (work, service), is subject to compensation by the seller or manufacturer of the product, person who performed the work or provided the service (performer), regardless of their fault and whether the victim was in a contractual relationship with them or not.
- For harm caused to a minor under the age of fourteen (minor), his parents (adoptive parents) or guardians are responsible, unless they prove that the harm was not their fault. In the case when minors from 14 to 18 years of age have no income, the parents also bear responsibility for the harm caused by them, unless they prove that the harm was not caused by their fault.
- For the harm caused by a person (employee) in the performance of his labor (service, official) duties on the basis of a concluded labor contract (service contract), his employer shall be liable.

The amount of compensation for material damage

According to Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount. Damages are understood as expenses that the person whose right has been violated has made or will have to make in order to restore the violated right.

The amount of material damage caused may be determined by the cost of carrying out restoration repairs or in the amount of the expenses incurred necessary to restore the property to the state in which it was before the damage was caused.

If the inflictor of material damage has insured his liability in the form of voluntary or compulsory insurance in favor of the victim, then he is liable for the damage caused only if the insurance indemnity is insufficient to fully compensate for the damage caused.

Exemption from liability or reduction of the amount of compensation for material damage caused

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

According to paragraph 2 of Art. 1083 of the Civil Code of the Russian Federation - If the gross negligence of the victim himself contributed to the occurrence or increase of harm, depending on the degree of fault of the victim and the tortfeasor, the amount of compensation should be reduced.

In case of gross negligence of the victim and the absence of fault of the tortfeasor, in cases where his liability arises regardless of fault, the amount of compensation for damage must be reduced or compensation for damage may be refused, unless otherwise provided by law. When harm is caused to the life or health of a citizen, a refusal to compensate for harm is not allowed.

Also, the court may reduce the amount of compensation for material damage caused by a citizen, taking into account his property status, except in cases where the harm is caused by actions committed intentionally.

In some cases, the law establishes the limits of liability for compensation for material damage, for example, according to Art. 241 Labor Code RF, for the damage caused to the employer, the employee is liable within the limits of his average monthly earnings. Exceptions to this rule are established by Art. 243 of the Labor Code of the Russian Federation.

Material damage to the employee

In order to recover material damage from an employee, it is necessary to perform all the actions provided for by law. Take inventory, create special commission ask the person for an explanation. If this is not done, then you can lose the dispute in court ( appellate ruling Transbaikal regional court № 33-1520).

We carry out an inventory

The legislation provides for the liability of the employee to the organization. He must compensate for the damage caused, regardless of whether or not he is brought to disciplinary, administrative or criminal liability (Article 248 of the Labor Code of the Russian Federation). But first you need to conduct an audit, which is designed to establish the amount of damage and the reasons for its occurrence (part 1 of article 247 of the Labor Code of the Russian Federation).

The amount of damage is determined by the results of the inventory. It allows you to identify discrepancies between actual presence property and accounting information. In accordance with the requirements of Federal Law No. 402-FZ “On Accounting”, the inventory procedure must be regulated by new federal and industry standards. These standards have not yet been adopted, and when conducting an inventory, one can be guided by the current Guidelines... approved by order of the Ministry of Finance of Russia No. 49. The need to conduct an inventory in cases of detection of theft, abuse or damage to property is indicated in paragraph 27 of the Regulation on accounting and financial reporting in the Russian Federation, approved by order of the Ministry of Finance of Russia No. 34n.

Determine the amount of damage

The amount of damage is determined by the actual losses, calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear. Moreover, as emphasized in paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52, if it is impossible to establish the day the damage was caused, the employer has the right to calculate the amount of damage on the day it was discovered.

But the causes of damage are established not during the inventory, but in the process official investigation conducted by the administration of the organization. For this, the employer has the right to create a special commission (Article 247 of the Labor Code of the Russian Federation). It is advisable to include an economist, an employee of the personnel service, a representative of the security service, and a legal adviser in its composition.

The order to create a commission is drawn up in any form and signed by the head of the organization, after which the members of the commission are introduced to the order against signature.

The task of the commission is to establish the following points:

Absence of circumstances excluding the liability of the employee;
unlawful behavior of an employee that caused damage to the property of the employer;
fault of the employee in causing damage;
causality between the employee's behavior and the resulting damage;
the presence of direct actual damage to the employer.

We take explanations from the employee

The obligation to take explanations from the employee is spelled out in article 247 of the Labor Code of the Russian Federation. If the employee refuses to give them, then he should send a written notice requesting an explanation and require him to sign for receipt of the notice.

If the employee refuses to sign the notice, it should be read aloud to the employee in the presence of witnesses. And if the employee refuses to give written explanation, you need to draw up an act on the refusal or evasion of the employee from giving explanations (Article 247 of the Labor Code of the Russian Federation) - the employee must also be familiarized with this document against signature, and if he refuses to sign it, you need to make a corresponding note in the act.

Note that labor legislation does not establish or limit the period during which a written explanation can be requested from the employee. So, if the request was not made by the employer immediately after the shortage was discovered (damage was discovered), this can be done already during the internal investigation or even after its completion.

So, ideally, an employer should have:

Documents confirming the results of the inventory (inventory lists, collation sheets, an act on discrepancies identified);
a written explanation of the employee about the causes of damage (or an act of refusal to give explanations);
the conclusion (act) of the commission based on the results of an internal investigation, which records the fault of the employee, the unlawfulness of his actions, as well as the causal relationship between his actions and the damage incurred by the employer.

The employee or his representative has the right to familiarize himself with all the materials of the inspection and even appeal against them.

When Damage Cannot Be Recovered in Full

Liability in full size the damage caused is assigned to the employee only in those cases specified in Article 243 of the Labor Code of the Russian Federation.

In particular, these may be situations in which:

This responsibility is in accordance with existing laws;
a shortage of valuables entrusted to the employee on the basis of an agreement on full liability or received by him under one-time document;
the damage was caused as a result of the employee's criminal actions established by a court verdict or as a result of an administrative offense;
the employee acted intentionally or in a state of alcoholic or drug intoxication, as well as when he did not perform labor duties.

In other cases, the amount of damage that can be recovered from the employee is limited to the limits of his monthly earnings. This is stated in article 241 of the Labor Code of the Russian Federation. That is, regardless of the amount of damage caused, the employee is obliged to compensate the amount that does not exceed the amount of his average monthly salary. This was also pointed out by the judges in the definition of the Moscow regional court № 33-11823.

When calculating the average wage, all provided by the system remuneration types of payments used in the organization. In this case, the calculation is made on the basis of the actual accrued wages and the time actually worked by him for 12 calendar months (Article 139 of the Labor Code of the Russian Federation).

But it must be borne in mind that the amount of deduction should not exceed 20 percent of earnings, and, therefore, the recovery of damages can take several months.

If the employee pleaded guilty

An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. This is indicated in article 248 of the Labor Code of the Russian Federation.

This is the easiest and most convenient option for the employer - but in order to avoid subsequent misunderstandings, it does not eliminate the need to perform all of the above procedures.

The easiest way is if the employee immediately contributes his personal funds to the employer's cash desk in an amount corresponding to the assessment of the damage caused to him. Also with the consent of the employer this specialist may transfer to him, in order to compensate for material damage, an equivalent property or repair what is damaged.

If the employee cannot reimburse the entire amount of damage at a time, payment by installments is allowed. In this case, he must submit to the administration of the organization a written obligation to compensate for material damage, indicating specific dates payments. And then in the future, even if such an employee quits and refuses to pay the balance of the debt for damages, the employer organization, on the basis of this written obligation, will be able to recover the debt from him in court.

A combined option is also possible - when the employee repays part of the amount of damage immediately (in cash, property or otherwise), and the rest is monthly withheld from his salary until the debt is fully repaid.

And if the employee does not admit guilt?

If the employee does not want to voluntarily compensate for the damage, the employer must issue an order to recover from the guilty person the amount of damage caused. Based on it, you can recover an amount not exceeding the average monthly earnings. Such an order is drawn up in an arbitrary form and can be made no later than one month from the date of completion of the measures to determine the amount of damage and the reasons for its occurrence.

Of course, the instruction (order) for the recovery of damages must also contain the signature of the guilty employee about his acquaintance and agreement with the content of the order.

If the monthly period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, then it can only be recovered through the courts.

The court will have to recover damages in cases where:

The employee does not agree to voluntarily compensate for the damage, the amount of which exceeds his average monthly earnings (Article 248 of the Labor Code of the Russian Federation);
the employee gave a written obligation to compensate for material damage, but then quit and refused to fulfill it (Article 248 of the Labor Code of the Russian Federation);
the employee was trained at the expense of the organization, then quit without good reason and refused to reimburse her for the costs of his training (Article 249 of the Labor Code of the Russian Federation);
the student did not start work at the end of the apprenticeship and refused to voluntarily reimburse the organization for the expenses incurred in connection with the apprenticeship, art. 207 of the Labor Code of the Russian Federation).

Recovery of material damage

Unfortunately, not a single employer is insured against the possibility of damage to property by an employee. Sometimes this is caused by the negligent attitude of an employee to his professional duties. It is quite natural that the employer wants to compensate for the damage caused by the employee. But can you always count on it? How to properly recover material damage from an employee? What mistakes are most often made by the employer in this case?

The onset of liability for causing damage to the property of the employer is provided for by the Labor Code of the Russian Federation (Article 283).

Liability can be characterized by two features:

One of its parties must be an individual who works for the employer at the time of damage to property;
the amount of liability depends on the amount of damage and the nature of the violation that led to damage to property.

Liability comes under the condition that there is:

Direct damage;
illegal behavior, negligence, improper performance of their professional duties;
the fault of the employee who caused the damage.

If damage to the employer's property is caused by force majeure circumstances, defense, extreme necessity, liability does not arise. Also, the employee is not responsible for the property when the employer has not provided the necessary conditions for his safety.

The essence of liability lies in the obligation of the employee to compensate for the material loss caused by him. In this case, only damaged property is meant, lost profits are not taken into account.

The definition of material damage includes a real decrease in the quantity or deterioration in the quality of the property of the employer. For example, lack of money, damaged equipment, raw materials, expenses for paying a fine in relation to the employer, which was appointed through the fault of the employee.

The main types of material liability of employees are presented in the table:

Type of liability

What does it consist of

When does

Damage is fully reimbursed

1. If for the position occupied by an employee, this is provided for by law, for example, the director of an enterprise;

2. When an agreement on full liability is signed between the parties in accordance with the requirements of the law.

3. when intent is present and proven when causing property damage;

4. in case of alcohol, toxic, drug intoxication of an employee at work, resulting in damage;

5. the unlawfulness of the actions of the employee, which led to the damage, has been proven;

6. there is a disclosure of trade secrets by the employee

Partial

Only part of the loss is reimbursed. The amount of compensation does not exceed the average monthly salary

In other cases

It is common for an employer to conclude an agreement on full liability with each hired employee. At the same time, he believes that such an action reliably insures him in the event of property damage caused by an employee. But it is not always the case. Such an agreement will not become a lifesaver for the employer in any case.

In accordance with the law, its conclusion is permissible only for those positions that are provided for by a special list, approved by the Ministry labor of the Russian Federation. If the position of the employee is not included in this list, then the contract concluded with him loses his legal force and the employee bears only partial liability in the amount of one average earnings. For example, the employer tried to receive compensation for damage caused by the fault of the head of the department in the performance of professional duties. However, the court denied this, despite the existence of an agreement on full liability between the employee and the organization. The reason was that the official duties of this employee did not directly include ensuring the safety of the company's property.

The procedure for recovering material damage to the employer consists of several stages:

Conducting an inventory of funds;
creation of a commission to conduct an internal investigation and establish the causes that provoked the damage;
obtaining from the employee a written explanation of the reasons for the loss. If he refuses, then the refusal should be recorded in the act;
calculation of the amount of damage inflicted in the market value on the day of its occurrence. At the same time, the value of the lost or damaged property should not be less than that recorded in the accounting records;
delimitation of the degree of guilt and liability between employees if the loss was caused by the fault of several persons.

The employer has the opportunity to withhold the loss from the perpetrator not only through the court, but also in the pre-trial order.

Without recourse to the courts, a shortage is withheld, not exceeding the average monthly salary of an employee. An order to this effect must be created no later than a month after the incident occurred and the losses were calculated. If an employee objects to the actions of the employer, then he can go to court.

The parties may agree to pay damages in instalments. In this case, you should draw up a payment schedule and indicate their specific dates. If the employee took the obligation to compensate for the damage, but quit without doing this, then the employer can go to court with this. Also, only in court can the issue of recovering damages from an employee in an amount exceeding his average earnings, if he refuses to voluntarily do this, be resolved.

Reflection of damage on accounts

The value of the property established during the inventory should be shown in the debit of account 94.

This amount is recorded in the accounts as follows:

Account correspondence
Debit	Credit
		Attributing the shortage to the culprit
		The employee contributed money to the cashier or to the account of the enterprise, or the missing amount was deducted from his salary
		The difference between the market and accounting estimate loss, if any
		The difference between the market and balance valuation is written off as the damage is repaid by the culprit. If the loss is compensated in parts, then the difference is written off in proportion to the amount of repayment
		A shortfall related to past periods was discovered in the reporting period and included in deferred income
		Deferred income refers to the reporting period when the loss is repaid by the culprit.

Trying to get compensation for material damage from an employee, the employer often makes the following mistakes:

Attempt to receive compensation for the damage caused in full. Full compensation for damage is allowed only in cases strictly defined by law (Article 241 of the Labor Code). Also, the head and chief accountant of the enterprise bears full financial responsibility;
conclusion of an agreement with each employee on full liability in the hope of the possibility of recovering the entire loss. Even if such an agreement was concluded, but there were no legal grounds for this (the employee’s position is not in a special list, or his activity is not related to material values), then it will be declared invalid by the court;
an attempt to recover from the employee not only the damage caused, but also lost profits. The employee is obliged to compensate only for direct loss;
the employer's mistake is to withhold the amount administrative penalty imposed on him through the fault of the employee. For example, the seller did not ensure that expired food products were removed from the shelves in a timely manner. As a result of the check, the store was imposed administrative penalty, which the employer paid in the amount of 50,000 rubles. After that, the employer tried to withhold the amount of the fine from the seller who committed the violation, whose earnings are 22,000 rubles. The seller refused to pay damages in this amount, and the employer went to court. The court, taking into account all the circumstances, dismissed the employer's claim. In this case, he can receive compensation for the damage caused only partially in an amount not exceeding the average wage of the employee.

Material damage to the employer

In progress job duties employees, as a rule, use the property of the organization. However, both due to the employee’s bad faith, and for reasons beyond his control, cases of damage to the employer’s property are not uncommon. On the possibility of compensation for material damage as a variant of the employee's liability, as well as on existing restrictions in the amount of damages from the employee tells the author of the article.

In Art. 241 of the Labor Code of the Russian Federation states that "for the damage caused, the employee is liable within the limits of his average monthly earnings, unless otherwise provided by this Labor Code of the Russian Federation or other federal laws". As a general rule, when legally significant circumstances are proven and the issue of bringing an employee to liability is resolved, it is limited to his average monthly earnings. Thus, performing its protective function, the Labor Code of the Russian Federation in Article 241 establishes the limits of liability of employees.

Depending on the limit of the recovery of damage caused to the employer permitted by law, the liability of employees is divided into two types:

1) limited material liability within the limits of the average monthly earnings;
2) full liability, that is, the obligation to compensate for damage in full, regardless of the employee's earnings without any restrictions (Articles 242, 243 of the Labor Code of the Russian Federation).

The Labor Code of the Russian Federation recognizes limited liability as the main type of employee liability for damage caused to the employer. This type of liability can take place in all cases, except for those for which the Labor Code of the Russian Federation or another federal law did not provide otherwise, that is, they did not take into account exceptions to the general rule on limited liability of an employee. Therefore, the law does not establish any conditions for the application of limited liability. It is always valid, except in cases where full liability is applied.

Explaining to the courts the application of Art. 241 of the Labor Code of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation in paragraph 7 of Resolution N 52 "On the application by the courts of legislation governing the liability of employees for damage caused to the employer" ruled: "If the employer has filed a claim for compensation by the employee for damage within his average monthly earnings (Article 241 of the Labor Code of the Russian Federation), however, in the course of judicial trial circumstances will be established with which the law connects the onset of the full liability of the employee, the court is obliged to decide on the claims made by the plaintiff and cannot go beyond them, since by virtue of Part 3 of Art. 196 Code of Civil Procedure of the Russian Federation, such a right is granted to the court only in cases provided for by federal law.

Instead of full liability, established by Art. 242 of the Labor Code of the Russian Federation, in labor relations between employees (employee) and the employer, limited liability may be established, since the norms of the articles of the Labor Code of the Russian Federation say that the position of the employee should not be worsened.

The introduction of full liability instead of the limited Labor Code of the Russian Federation does not allow. In this connection, the Labor Code of the Russian Federation defines exhaustive list full liability cases.

Taking into account the fact that the Labor Code of the Russian Federation does not establish special rules for these cases, it must be assumed that managers guilty of the above offenses should bear limited liability (on the basis of Article 241 of the Labor Code of the Russian Federation), if the law or the employment contract does not provide for them full liability (Article 277 and Part 2 of Article 243 of the Labor Code of the Russian Federation).

Limited financial liability of officials guilty of illegal dismissal employee or his transfer to another job, occurs if such dismissal or transfer was made in clear violation of the law or if the representatives of the employer delayed the execution of a court decision to reinstate the employee at work.

Cases of clear violation of the law, in particular, include:

Dismissal of an employee on grounds not provided for by law;
- dismissal at the initiative of the employer in certain cases without the prior consent of the relevant trade union body;
- termination of an employment contract with an employee in the event of liquidation of the organization or reduction in the number or staff of employees without prior written notice against receipt and without payment of severance pay;
- transfer of an employee to another job without his written consent;
- dismissal of an employee for participating in a strike, etc.

Liability of employees for property damage caused to the employer must be distinguished from other measures of material impact, such as:

Deprivation of incentive payments under Art. 135 of the Labor Code of the Russian Federation;
- accrual and payment of wages not in full in accordance with Art. Art. 155 - 157 of the Labor Code of the Russian Federation;
- deductions from the employee's salary to pay off his debt to the employer (Articles 137 and 138 of the Labor Code of the Russian Federation);
- non-payment of wages to an employee during the time of participation in a strike (Article 414 of the Labor Code of the Russian Federation).

Let us dwell in more detail on some measures of material influence.

If labor standards are not met

Article 155 of the Labor Code of the Russian Federation regulates remuneration for non-fulfillment of labor standards, non-fulfillment of labor (official) duties.

The rules for payment in case of non-compliance with labor standards depend on whose fault they were not met, or on reasons not related to the fault of the employee or employer.

In case of non-fulfillment of labor standards, non-fulfillment of labor (official) duties through the fault of the employer, payment is made, as indicated in Part 1 of Art. 155 of the Labor Code of the Russian Federation, for the time actually worked or the work performed, but not lower than the average employee's earnings calculated for the same period of time or for the work performed. That is, the employee is guaranteed the payment of average earnings for the time actually worked.

A different payment procedure is provided in case of non-fulfillment of labor standards (official duties) for reasons beyond the control of the parties to the employment contract. In this case, the employee retains at least 2/3 tariff rate (official salary), calculated in proportion to hours worked.

In any case, if, as a result of calculating wages for the time actually worked (work performed), the employee's earnings turn out to be higher than 2/3 of the tariff rate (salary), he has the right to receive the entire amount due to him. Otherwise, the question of the liability of the employer may arise.

Failure to comply with production standards due to the fault of the employee gives the employer the right to pay for labor in accordance with the work performed (part 3 of article 155 of the Labor Code of the Russian Federation). But in this case, the employer is obliged to prove that the employee had a real opportunity to perform the work assigned to him. In turn, the employee is exempted from the obligation to prove his innocence, that is, his innocence is presumed.

When considering this legal provision, it must be borne in mind that in some cases labor legislation obliges the employer to keep the employee transferred to another job at the employer's initiative (for example, due to production needs) or at the employee's initiative (for example, transfer to easier work pregnant woman), previous earnings. Thus, failure by the employee to new job in these cases, production standards cannot be blamed on the employee and, therefore, entail wages on the conditions provided for in Part 3 of Art. 155 of the Labor Code of the Russian Federation.

In practice, there are difficulties in applying Art. 155 of the Labor Code of the Russian Federation if an employee fails to fully fulfill his official duties, which often lead to individual labor disputes. In this case, there is a need to clarify all the circumstances related to the employee's failure to comply with labor standards, and to establish the specific reason for their non-compliance.

If the finished product turned out to be defective

In Art. 156 of the Labor Code of the Russian Federation establishes the procedure for remuneration for the manufacture of products that turn out to be defective. It says that "marriage through no fault of the employee is paid on a par with good products. Full marriage due to the fault of the employee is not subject to payment. Partial marriage due to the fault of the employee is paid at reduced rates, depending on the degree of suitability of the product."

The application of this article is associated with the establishment of the degree of suitability of products that do not meet the requirements of the standard specifications, as well as the reasons for the release of defective products. Specified circumstances are legal facts, predetermining legal implications provided for in Art. 156 of the Labor Code of the Russian Federation.

The manufacture of defective products leads to an overrun of materials, disrupts the uniformity of production, entails an increase in the cost of production, that is, causes material damage to the employer. That's why complete marriage through the fault of the employee is not payable at all. At the same time, an employee who caused damage to the organization in connection with the release of defective products through his own fault may be held liable by the employer.

If the marriage made through the fault of the employee turned out to be partial, then payment is made taking into account the degree of suitability of this product at reduced rates established by the representatives of the employer in each specific case. In the event of a partial marriage due to the fault of the employee (however, as in the case of a complete one), he is liable to the employer for causing direct actual damage to him.

Guilt for downtime

Arguing about the liability of an employee, it is necessary to distinguish it from restrictions on the payment of earnings for downtime. In Art. 157 of the Labor Code of the Russian Federation establishes: “Downtime (Article 72.2) due to the fault of the employer is paid in the amount of at least 2/3 of the average salary of the employee. Downtime for reasons beyond the control of the employer and employee is paid in the amount of at least 2/3 of the tariff rate (official salary), calculated in proportion to downtime. Downtime due to the fault of the employee is not paid. "

In part 3 of Art. 157 Labor Code of the Russian Federation we are talking on the unlawful guilty behavior of an employee, when there is a disciplinary offense. In this case, on the one hand, the employee is not paid for downtime, and on the other hand, disciplinary measures or other measures of influence provided for by local regulations (regulations on bonus payments, on remuneration based on the results of work for the year, etc.).

The legislator, excluding from Parts 1 and 2 of Art. 157 of the Labor Code of the Russian Federation, the need to warn the employer in writing about the beginning of downtime, supplemented this article with parts 4 and 5 of a clarifying and concretizing nature. So, in accordance with Part 4 of Art. 157 of the Labor Code of the Russian Federation, the employee is obliged to inform his immediate supervisor or another representative of the employer about the start of downtime caused by equipment breakdown and other reasons that make it impossible for the employee to continue to perform his job function.

The legislator put an end to it and did not give an answer to the question of how the payment for downtime would be made under the above circumstances. If the employee does not report, then he can be brought to disciplinary responsibility, but again remains unresolved issue on payment for downtime under the circumstances under consideration.

The issue with the period of "unemployment" of creative workers in Part 5 of Art. 157 of the Labor Code of the Russian Federation. In particular, if creative workers mass media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, professional athletes do not participate in the creation of and (or) performance (exhibition) of works or do not act, then the specified time is not idle time and can be paid in the amount and in the manner established by the collective agreement, local regulations, labor contract.

A special case of downtime is considered to be a forced suspension of work in connection with a strike. In this case, the employer has the right not to pay wages to employees during their participation in the strike (Article 414 of the Labor Code of the Russian Federation). At the same time, employees who do not participate in the strike, but in connection with it are not able to perform their labor function, are paid for downtime through no fault of the employee in the manner and amount provided for by law, that is, according to the rules of Art. 157 of the Labor Code of the Russian Federation. At the same time, it is not necessary to warn the employer about the beginning of downtime in this case.

Other cases of deductions from wages

As already noted, cases of deductions from the employee's wages cannot be attributed to liability. In Art. 137 of the Labor Code of the Russian Federation refers to those deductions from wages that can be made to pay off debts to the employer (possible limits of deductions are indicated in article 138 of the Labor Code of the Russian Federation).

In accordance with Art. 137 of the Labor Code of the Russian Federation, deductions from the employee's salary to pay off his debt to the employer can be made:

For reimbursement unworked advance issued to the employee on account of wages;
- to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area;
- to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee in the event that the jurisdictional body for the consideration of individual labor disputes recognizes the employee's guilt in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or in idle time (part 3 article 157 of the Labor Code of the Russian Federation);
- upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave (for unworked vacation days).

However, in last case deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation or paragraphs 1, 2, 4, part 1 of Art. 81 of the Labor Code of the Russian Federation, paragraphs 1, 2, 5, 6 and 7 of Art. 83 of the Labor Code of the Russian Federation.

The employee may be charged wage if the court establishes that it has been overpaid to him in connection with his illegal actions.

Other cases under federal law where deductions from wages are allowed include:

Holds by executive documents when an employee is serving executive work;
- recovery of alimony minor children;
- compensation for harm caused by an employee to the health of another person, and in the event of the death of this person - to family members in connection with the death of the breadwinner;
- compensation for damage caused by a crime;
- and in other cases expressly provided for by law.

In these cases, the employer is obliged to comply with the decision judicial authority.

The Labor Code of the Russian Federation contains provisions that protect wages from unreasonable deductions, which contain an exhaustive list of cases when the employer has the right, at its discretion, to make deductions from the wages due to the employee.

It is not allowed to deduct from the employee's salary by order of the employer in other cases, except for those provided for in Art. 137 of the Labor Code of the Russian Federation. Thus, an employee cannot be charged wages that were overpaid to him due to misapplication law or other regulatory legal acts, for example, if the tariff category is incorrectly determined, etc.

In all cases of deductions from the employee's wages, provided for in Art. 137 of the Labor Code of the Russian Federation, the employer has the right to make deductions only within a specified period of time - no later than 1 month from the date of expiration of the period established for the return of an advance, repayment of debts or incorrect calculation of payments. Withholding within this period is allowed if one more condition is met - the employee does not dispute the grounds and amounts of such deductions.

It should be emphasized that Art. 137 of the Labor Code of the Russian Federation does not contain another important reason for deducting an employee from an employee's salary by order of the employer. This is the recovery from the employee of the amount of damage caused through his fault to the employer, not exceeding the average monthly earnings (Article 248 of the Labor Code of the Russian Federation).

Payroll deduction limits

When establishing the liability of an employee for both him and the employer, it is important to know all the restrictions on the amount of deductions from wages established by Art. 138 of the Labor Code of the Russian Federation. According to this article overall size of all deductions for each payment of wages may not exceed 20%, and in cases provided for by federal laws - 50% of the wages due to the employee. When deducted from the salary for several writ of execution in any case, the employee must be kept 50% of his salary.

These restrictions do not apply to deductions from wages for:

Serving corrective labor;
- collection of alimony for minor children;
- compensation for harm caused by the employer to the health of the employee;
- compensation for harm to persons who have suffered damage in connection with the death of the breadwinner;
- Compensation for the damage caused by the crime.

The amount of deductions from wages in these cases cannot exceed 70% (part 3 of article 138 of the Labor Code of the Russian Federation).

In addition, in accordance with Part 4 of Art. 138 of the Labor Code of the Russian Federation, deductions from payments that are not levied in accordance with federal law are not allowed.

These payments include amounts for:

To compensate for harm caused to health, as well as to compensate for harm to persons who have suffered damage as a result of the death of the breadwinner;
- persons injured (injured, injured, contused) in the performance of their official duties, or members of their families in the event of death (death) of these persons;
- to support the family in connection with the birth of a child;
- mothers of many children;
- a single mother or father raising a child;
- for the maintenance of minor children during the search for their parents;
- pensioners and disabled people of the 1st group for their care;
- victims in case of harm to health for additional food, sanitary-resort treatment, prosthetics and expenses for their care;
- to pay for maintenance obligations;
- for work with harmful working conditions or in extreme situations, as well as citizens exposed to radiation due to disasters, accidents at nuclear power plants and in other cases established by the legislation of the Russian Federation;
- to provide support in connection with the death of relatives, as well as with the registration of marriage (according to the decisions of organizations, it is carried out at their own expense);
- on severance pay paid upon dismissal of an employee.

Liability for material damage caused

The relationship "employee-employer" is not limited only to the fulfillment of obligations assumed by the parties under an employment contract. They are also linked by mutual financial responsibility. Cases when an employee, through his actions or through inattention, causes damage to the employer are not uncommon.

Most of these situations are resolved amicably. The guilty person voluntarily, without any consequences for his further work, compensates for the harm caused. And some minor losses due to the fault of employees are completely forgiven by the employer: many organizations easily write off damaged office equipment or a corporate mobile phone accidentally lost in a taxi.

However, this does not apply to incidents involving significant damage, especially if it is associated with intentional actions or gross misconduct. In such cases, of course, the employer has the right to demand compensation for losses, and such a right is enshrined in law. The material liability of the employee for damage caused to the employer is regulated by the current labor legislation.

Grounds for liability

The employee is obliged to compensate the employer for damage in the event that he caused direct actual damage to the organization by his actions or inaction. From the point of view of the Labor Code of the Russian Federation, such cases include the actual loss of the company's property and a significant deterioration in its condition. This also includes all costs incurred by the organization for the repair, replacement of damaged property, as well as compensation for losses to third parties related to it. In this case, the lost profit of the employer is not subject to compensation by the employee.

Thus, the grounds for the onset of material liability of an employee for damage are:

Lack of cash;
loss of accountable values;
damage to company property;
damage to property of third parties transferred to the employer for use and storage;
a fine imposed on the organization through the fault of the employee.

In order for an employee to be fairly liable, the employer must comply with several conditions:

1. Document the fact of causing damage.
2. To prove that the employee has committed unlawful actions: violated work instructions, clauses of the employment contract, legislative norms, neglected his job duties, etc.
3. Identify a causal relationship between the action of the guilty person and the resulting damage.
4. Establish the guilt of the employee, that is, the presence of intent or negligence in his actions. In the first case, the employee is fully aware of the illegality of his actions and their consequences. In the second, there is indiscretion, a frivolous attitude, when a person does not fully understand the harm from his actions and hopes to avoid a negative result.

Causing damage to the employer can occur in such circumstances that relieve the employee from liability for damage:

Force majeure (natural disasters, terrorism, military clashes);
if the employee, in the course of performing work duties, failed to preserve the property, despite all the efforts made, and it was impossible to do otherwise;
situations emergency And necessary defense- material damage occurred in conditions that pose a danger to the company's property, life and health of employees, third parties;
the loss of accountable property occurred due to the fact that the employer did not provide employees with conditions for the safe storage of entrusted valuables (security, alarm, individual safes, etc.).

Limits of liability of an employee

The amount within which the employee undertakes to indemnify the company depends on whether or not he has an agreement on full liability. If such an agreement was not signed with the employee, then his liability is limited to the average monthly earnings.

Full property liability arises for the employee upon employment and upon transfer to a position involving the operation of accountable values. The list of positions with which employers enter into an agreement on full liability is established by the Ministry of Health and Social Development of the Russian Federation. For managers and chief accountants, property obligations appear automatically and do not depend on the existence of an agreement.

In full, employees compensate the damage to the employer in cases clearly defined by law:

1. Lack of entrusted property received under a one-time power of attorney or due to the nature of work.
2. Committing an offense with intent.
3. Damage to property while intoxicated.
4. Causing damage as a result of a crime committed by an employee, proven by the court.
5. The cause of property damage is an administrative offense.
6. Disclosure confidential information, official, commercial secrets.
7. Damage was caused when using official property in personal purposes.

In addition to individual property liability, there is also a collective form (brigade), which occurs upon the conclusion of the relevant collective agreement. This form is appropriate when joint work groups of employees it is not possible to determine the degree of responsibility of each of them.

How to hold an employee liable for damages?

If the fact of causing damage is revealed, the employer is obliged to issue an order to establish a commission. Its purpose is to investigate the circumstances of the incident and establish the amount of losses to the organization through the fault of the employee. Members of the commission consider all significant facts, collect evidence of the employee's guilt, and assess property damage.

In this case, the perpetrator is required to provide a written explanation on the merits of the incident within 2 days. He also has the right to monitor the progress of the investigation and participate in it: study documents, dispute the facts, involve independent experts.

Refusal of the perpetrator to testify is fixed by a special act. The conclusions of the commission are also documented (acts of inventory, audits, reconciliations, etc.).

Compensation for established losses that do not exceed the average monthly income of the employee is recovered by order of the head, regardless of the consent of the perpetrator. They compensate for the damage from the employee's salary, withholding no more than 20% from it, thus stretching the payment for several months.

Voluntary compensation is issued by agreement of the parties: it can be either a lump sum payment or partial payments according to the established schedule. If the employer has no objections, the employee can compensate for the losses in another way, for example, by buying new property, making repairs at his own expense, etc.

In this case, the debtor has the right to quit, but his debt will continue until full repayment. In this case, the termination of the employment contract is accompanied by the signing of an obligation to compensate for damages, which is the basis for bringing to court if former employee refuse to pay compensation.

The unwillingness of the culprit to voluntarily return the costs incurred to the organization often leads the parties to court - this is the only way the employer can recover the funds due to him from his employee.

The judge accepts a claim for pecuniary damage in such situations:

The employer did not collect compensation in a timely manner from an employee with partial liability (this must be done no later than a month from the date of the conclusion of the audit commission);
guilty person is not ready to compensate for the damage, the amount of which exceeds the amount of his salary;
the resigned employee waived his obligation to cover losses former employer.

Appeal to the court does not guarantee satisfaction of the claim by the affected organization. The judge has the right to change the amount of the payment, taking into account the intent of the perpetrator, taking into account his income, financial situation of the family, etc. The employer, in turn, can appeal this decision.

How to avoid material damage and liability?

As you know, most of the facts of property losses are revealed as a result of audits and inventories. Employers should carefully control the process of accounting for material assets. Perhaps it makes sense to conduct checks of accountable values among employees more often, including sudden audits. Such measures make it possible to timely detect cases of misuse of official property and prevent major damage. At the same time, a materially responsible employee will have a more disciplined attitude towards the values entrusted to him.

In turn, workers can protect themselves from, possibly, unintentional damage by working with material values.

To do this, it is important to independently check the relevance of data on the reporting property and control the availability of all accompanying documents:

When receiving property, it is necessary to check not only its quantity, but also serviceability, completeness, compliance of inventory numbers and bar codes, and other characteristics;
acceptance certificates and other documents must be executed properly, contain all the required details, dates, signatures, the correct name of the transferred valuables and their identification differences;
save documentation on accountable property, update inventories and store them at the workplace;
systematically conduct an audit / inventory, inspect the property for integrity and absence of damage;
timely inform the accounting department / manager about the need to repair property, replace it, write off.

These simple values rules will help an organization address two important issues: ensure the safety of their property and protect the material interests of the company's employees in the event of property disputes related to damage.

Compensation for material damage and moral damage

The Civil Code guarantees any person the right to compensation for moral and material damage. It should be noted that these two concepts are often closely related. But sometimes it also happens that material harm does not entail the obligatory receipt moral damage, and moral injury does not occur only due to receiving material damage.

Compensation for material damage

Property damage is the most common type civil disputes in a court. Such claims are filed either as a separate case, or compensation for pecuniary damage follows from some other circumstances (for example, as a result of a criminal offense committed).

Material damage means:

Expenses that have been incurred or will be incurred by the victim in the future to restore their violated interests, losses or rights;
lost profit, that is, the amount of potential income that the plaintiff could have received if his rights had not been violated. Reimbursement of such a benefit may require not only employee fixed salary but also an entrepreneur.

A person whose actions caused material damage to another person must compensate for this damage in full.

Compensation for moral damage

Moral damage is caused to a citizen, as a result of a certain offense, moral suffering or experiences associated with enduring physical pain. It should be remembered that compensation for moral damage does not exclude and does not depend at all on compensation for material damage. It is up to you to determine the amount of moral damage suffered.

But in any case, the court will proceed from the following criteria:

Circumstances under which the subject received non-pecuniary damage;
personality traits of the victim;
the degree (depth) of the plaintiff's physical and moral suffering;
other relevant circumstances.

In many cases, confirm the received moral damage not so easy. Difficulty arises when comparing the degree of emotional experiences of a person in terms of money, since it is almost impossible to track internal human anxieties.

The practice of compensation for harm To resolve the issue of compensation for compensation, first of all, it is necessary to prove the guilt of the defendant by all legal means. It should also be remembered that there are cases when compensation for material harm or moral damage can be assigned to a subject whose guilt cannot be traced.

A vivid example of such a precedent: the owner of a car is liable for harm to health, human life, only for the very fact of owning a car, and not for the presence or absence of guilt.

Practice shows that compensation for moral and material damage to many ignorant citizens may seem like a simple procedure. But already after the first, second court session, the plaintiff understands that one cannot do without the competent support of a lawyer.

Having hard evidence is only half the battle. Qualified lawyers know that correct design statement of claim, knowing what should be emphasized and what can be kept silent almost always ensure a successful outcome of the issue of compensation for the harm caused.

The amount of material damage

One of the duties of an employee, established by Art. 21 of the Labor Code of the Russian Federation, is the obligation to take care of the property of the employer (including the property of third parties held by him, if the employer is responsible for the safety of this property) and other employees. IN otherwise the employer can hold the employee liable in order to receive compensation for the damage caused. In the article, we will consider how damage can be recovered from an employee, in what amount, how it is established and by whom.

The amount of damage and conditions for its recovery

In accordance with Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for the direct actual damage caused to him. Such damage is understood as a real decrease in the employer's cash property or deterioration said property(including the property of third parties held by the employer, if he is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties.

At civil law relations from the side that caused material damage, it is possible to recover lost income (lost profit).

According to Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting records, taking into account the degree of wear and tear of this property.

For example, if the loss of goods occurred through the fault of a third party, the organization may recover from him in civil proceedings the cost of the goods at his expense. selling price. If the loss occurred due to the fault of the employees, the damage will be determined based on the purchase prices.

In cases where it is impossible to determine the day of damage, the employer has the right to calculate the amount of damage on the day of its discovery.

In addition, in accordance with clause 13 of Decree of the Plenum of the Supreme Court of the Russian Federation N 52 "On the application by the courts of legislation governing the liability of employees for damage caused to the employer" (hereinafter - Decree N 52), the amount of damage cannot increase due to an increase or decrease in market prices for the time of consideration of the case for the recovery of damages in court.

The employer should remember that there are mandatory conditions for recovering material damage from the employee:

Direct actual damage;
- unlawful behavior of the employee and his guilt in causing damage;
- causal relationship between illegal actions(inaction) of the employee and the occurrence of damage;
- compliance with the rules for concluding an agreement on full liability (clause 4 of Resolution No. 52).

Note! An employee cannot be held liable if the damage was caused by force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to provide proper conditions for storage of property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation).

Types of liability

When recovering material damage, remember that there are the following types of liability of employees: Full - consists in the obligation of the employee to compensate the direct actual damage caused to the employer in full. Assigned to the employee in cases provided for by the Labor Code (Articles 243, 244, 277, 346) or other federal laws. At the same time, employees under the age of 18 are fully liable only for intentional infliction damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as for damage caused as a result of a crime or administrative offense (Article 242 of the Labor Code of the Russian Federation).

The positions of employees with whom agreements on full liability can be concluded, and the types of work performed, where this is possible, are established by the List approved by Decree of the Ministry of Labor of Russia N 85.

Limited - when the employee bears financial responsibility within the limits of the average monthly earnings, unless otherwise provided by the Labor Code or other federal laws (Article 241 of the Labor Code of the Russian Federation).

Collective (brigade) - is introduced when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full. A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team) (Article 245 of the Labor Code of the Russian Federation). Refers to full liability.

Individual - applies to any employee. It can be either complete or limited.

Create a review committee

According to Art. 247 of the Labor Code of the Russian Federation, in order to establish the amount of damage and the reasons for its occurrence, the employer must conduct an audit. He has the right to create for this purpose a commission with the participation of relevant specialists.

Moreover, in order to establish the cause of the damage, it is necessary to demand a written explanation from the employee. In case of refusal or evasion of the employee from submitting an explanation, an act is drawn up about this.

The commission is created by the order of the employer. It may include the head of the department, employees of accounting, personnel, legal and other services. As a result of the audit, the commission establishes the cause of the damage, the presence of the employee’s fault and the unlawfulness of his behavior, the causal relationship between the employee’s behavior and the damage that has occurred, and the amount of the damage itself. The results of the check are documented in an act.

An obligatory event that should be carried out before the meeting of the commission is an unscheduled inventory. The obligation to conduct an inventory when establishing the facts of theft or abuse, as well as damage to valuables, is established by Federal Law N 402-FZ "On Accounting", the Regulation on Accounting and Accounting in the Russian Federation, approved by Order of the Ministry of Finance of Russia N 34n, and Methodological Guidelines for accounting of inventories, approved by Order of the Ministry of Finance of Russia N 119n.

The procedure for conducting an unscheduled inventory is established by the Methodological Guidelines for the inventory of property and financial obligations, approved by Order of the Ministry of Finance of Russia N 49 (hereinafter referred to as the Instructions).

According to the Instructions, a permanent inventory commission is created in the organization to conduct an inventory. With a large amount of work for the simultaneous inventory of property and financial obligations, working inventory commissions are created. With a small amount of work and the presence of an audit commission in the organization, inventory can be assigned to it.

The personal composition of permanent and working inventory commissions is approved by the head of the organization. Part inventory commission representatives of the administration of the organization, employees of the accounting service, other specialists (engineers, economists, technicians, etc.), and may also include representatives of the internal audit service of the organization, independent audit organizations. The absence of at least one member of the commission during the inventory is the basis for recognizing the results of the inventory as invalid.

Verification of the actual availability of property is carried out with the obligatory participation of financially responsible persons.

The results of the inventory are reflected in the inventory lists and statements, the form of which depends on the accounting policy adopted by the organization. During breaks in the work of the commission, access to the premises where inventory records are stored must be closed to outsiders.

The inventory list is drawn up in two (if necessary - in three) copies, on each page at the bottom the number is written in words serial numbers, the total number of units in fact, their total cost actually. Such an inventory must contain the signatures of the members of the commission, as well as the signature of the financially responsible person, confirming that he has no claims against the members of the commission. In order to avoid the introduction of false data or additions, the inventory list after the approval of the results should not contain blank lines - dashes should be put in these lines.

If, as a result of the inventory, deviations were revealed between the actual availability of property and accounting data, the commission draws up collation statements. The head of the organization, together with the employees who conducted the inventory, determines the reasons for the discrepancies. If necessary, the movement of inventory items for the period since the previous inventory is checked.

The inventory data is used in the commission's investigation.

Thus, in order to establish the fact and amount of damage, the employer has to approve two commissions: an inventory commission and a commission for conducting an inspection. However, since the legislation does not provide for the creation of exactly two commissions, the authority to conduct an audit to establish the causes of damage and its amount can be assigned to the inventory commission, fixing it in the local normative act- regulation on the inspection, regulation on the inventory commission, etc.

In addition, if local act the organization provides for the permanent composition of the commission and certain positions in it, the corresponding obligation should be prescribed in job descriptions and (or) employment contracts with such employees.

Note! The employee and (or) his representative have the right to familiarize themselves with all the materials of the audit and appeal them in the manner established by the Labor Code (part 3 of article 247 of the Labor Code of the Russian Federation).

We collect damages

So, after the commission has established the cause of the damage, the fault of the employee and determined the amount of damage, the employer decides to recover the amount of material damage from the employee.

According to Art. 248 of the Labor Code of the Russian Federation, the employer may recover material damage from the employee with his consent, if the amount of damage exceeded the average monthly earnings. If the amount of damage does not exceed the monthly earnings of the employee, the employer may withhold him without the consent of the employee on the basis of an order (instruction). Such an order may be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.

If the monthly period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, the amount of which exceeds the average monthly earnings, then recovery can only be carried out by the court.

An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. To do this, an agreement is concluded between them, by which the parties can provide for an installment payment. The employee provides the employer with a written obligation to compensate for the damage, indicating specific payment terms. In case of dismissal of an employee who refused to compensate for the specified damage in accordance with this obligation, the outstanding debt is recovered in court.

With the consent of the employer, in order to compensate for the damage caused, the employee may transfer to him an equivalent property or repair the damaged property. In Art. 248 of the Labor Code of the Russian Federation also notes that compensation for damage is carried out regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.

For your information. The employer has the right to fully or partially refuse to recover material damage from the guilty employee. In turn, the owner of the property of the organization may restrict the specified right of the employer in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, constituent entities of the Russian Federation, acts of local governments, constituent documents of the organization (Article 240 of the Labor Code of the Russian Federation).

It should be noted that not only the employer can refuse or reduce the amount of damages recovered. By virtue of h. 1 Article. 250 of the Labor Code of the Russian Federation, the amount of damage can be reduced, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, by the labor dispute resolution body. At the same time, the amount of damage to be recovered is not reduced if the damage was caused by a crime committed for mercenary purposes.

And according to clause 16 of Decree N 52, a reduction in the amount of damage is permissible in cases of both full and limited liability. It is also possible with collective (team) responsibility, but only after determining the amounts to be recovered from each member of the team (team), since the degree of guilt and specific circumstances for each member of the team (team) may be different (for example, an active or indifferent attitude employee to prevent damage or reduce its size).

When determining the amount of damage to be compensated by each of the employees in case of collective liability, it is necessary to take into account:

The degree of guilt of each member of the team (team);
- the size of the monthly tariff rate (official salary) of each person;
- the time that each employee actually worked as part of a team (team) for the period from the last inventory to the day the damage was discovered (clause 14 of Resolution No. 52).

When determining the amount of deductions, one should also take into account the restrictions established by Art. 138 of the Labor Code of the Russian Federation: the amount of deductions for each salary payment to an employee cannot exceed 20%, and in cases provided for by federal laws, 50% of the salary due to the employee.

Some issues related to voluntary compensation for damages

Quite often there are questions about the voluntary compensation by the employee of the amount of material damage. So, employers are interested in how much an employee can compensate for damage voluntarily and whether the provision of Art. 138 of the Labor Code of the Russian Federation, which limits the withholding of 20% of wages when an agreement is concluded between the employee and the employer.

We will immediately answer that this moment is not regulated by law. At the same time, many experts believe that the conclusion of an agreement on withholding from wages in excess of 20% is contrary to labor legislation.

With regard to retention, we, of course, agree with these statements. But there is an explanation from Rostrud (Letter N PG / 7156-6-1) on the issue of deductions from wages to repay a loan, which, in our opinion, is also applicable to the repayment of material damage by an employee. The letter states that the provisions of art. 138 of the Labor Code of the Russian Federation apply to deductions from wages, regardless of the will of the employee in order to repay the loan. With voluntary repayment, we are not talking about deduction, but about the will of the employee to dispose of the accrued wages. From the point of view of Rostrud, an employee can dispose of his salary at his own discretion by submitting an appropriate application to the employer's accounting department. At the same time, the provisions of Art. 138 of the Labor Code of the Russian Federation do not apply.

We adhere to a similar opinion and believe that, at the request of an employee, he can contribute more than 20% of his salary to the accounting department to pay off damages. Thus, he gives the employer an obligation to compensate for damages, indicating specific payment terms and the amount of monthly repayment of not more than 20%, but at his own request and on the basis of an application to the accounting department, he can deposit an amount in excess of the amounts withheld by the organization's cash desk.

Also, some employers doubt: if the employee agrees with the fact of the damage that occurred through his fault, is it necessary to create a commission for internal check?

In Art. 247 of the Labor Code of the Russian Federation establishes only the obligation to conduct an inspection to determine the amount of damage caused and the reasons for its occurrence and to demand an explanation from the employee. As a rule, the review is carried out by the commission. But there may be cases of damage when the creation of a commission (including an inventory commission) is not required, for example, when the employee did not report for the received under the report sum of money. Thus, for verification, it is not necessary to create a whole commission, but it is enough for one of the employees to collect documents that are evidence of damage and request explanations from the employee.

Summing up, we note that compensation for damage caused by an employee to an employer can be carried out voluntarily, by order of the employer in certain cases or in court. At the same time, the term for the employer to apply to the court is one year from the date of discovery of the damage caused to him by the employee (Article 392 of the Labor Code of the Russian Federation). To apply to the court, the employer should prepare documents such as an employment contract, an agreement on liability, a certificate of wages, documents relating to the damage caused (a certificate of the value of property, an explanatory worker), acts, inventories, conclusions of the commission.

By virtue of clause 4 of Resolution N 52, if the employer has proved the legitimacy of concluding an agreement with the employee on full liability and that this employee has a shortage, the latter is obliged to prove that he is not guilty of causing damage. That is, on the part of the employer, it is important to prove, among other circumstances, the presence of the employee’s fault in the occurrence of damage, and on the part of the employee, on the contrary, it is important to prove the absence of such guilt.

The amount of material damage

According to civil law, the person who caused the damage is obliged to reimburse the amount to the injured party. In this case, the victim calculates the amount of material damage, which is subsequently proved in court if the perpetrator refuses to pay it. Lawyers point out that this procedure is one of the most difficult, so it is necessary to comply with all conditions and collect supporting documents.

Read the provisions of Art. 15 and Article 1064 of the Civil Code of the Russian Federation, which state that the amount of compensation for harm must be complete and take into account real material damage and lost income. Real damages include amounts spent on repairing damaged property, purchasing medicines and other expenses directly related to the incident. Lost profits or lost income are expressed in the amount of profit that the victim could have received if he had not suffered certain damage. For example, if you get into an accident and lose your ability to work, you must compensate for the amount of lost wages.

Contact a specialized company that evaluates damaged property. For example, determining damage to a vehicle in as a result of an accident. The choice of an appraisal firm should be made jointly by the victim and the perpetrator. If the victim performed this operation on his own, then he is obliged to notify the other party of the date and place of the assessment of material damage. On the basis of the inspection, an inspection report is drawn up, which is the basis for calculating the restoration repair and loss commodity value property.

Calculate the amount of material damage based on the valuation report. The size is determined by the cost of refurbishment, the purchase of spare parts, consumables and coloring agents. When vehicle Based on the vehicle manufacturer's requirements, the appraiser determines whether the unit needs to be replaced. The cost of painting in this case depends on the degree of damage, if it occupies more than 50% of the surface, then the price for full painting of the car is taken into account. Include in the amount of material damage also the cost of paying for the services of appraisers.

Collect all documents that support the cost of restoring the damaged property. File a claim in court for damages. Further, the amount payable is determined by a court order.

Causing material damage

Property, it is also material, damage is the loss of all material values (benefits) or part thereof, as a result of harm done. Material damage, therefore, is a broader concept than material damage.

Material damage can result from both material and moral damage. For example, a rowdy neighbor made a drunken row with loud noise in the middle of the night. To the request of citizen N. to calm down, he responded with rude obscene language, insulting N.'s human dignity. The material damage caused to the victim as a result of moral damage consists of the funds spent on treatment and the loss of part of the salary.

In general, cases of material harm and material damage are very common in legal practice, both civil and criminal law. In particular, in criminal law, almost any crime causes material damage to individuals or legal entities.

How is the amount of property damage determined?

What is the amount of material damage? In Russian legislation, material damage is the sum of three indicators:

First of all, it is the cost of the lost object, or the amount needed to restore it. If the above-described rowdy would have also broken the door to citizen N., then the cost of the door or its repair would have become such an indicator.

The second is the costs incurred to restore the violated right or good. To put it simply, the shaken health of citizen N. is a blessing given to him from birth, and a drunken neighbor indirectly encroached on him, swearing dirtyly at N.

And, finally, the third is the amount of losses, determined by the profit that was expected, but was not received. In the above example, citizen N., received sick leave much less than if it were fully functional. The difference between his salary and the amount actually received is the lost profit.

Material damage to health

Harm to health is a violation of the anatomical integrity and (or) a violation of the physiological functions of human organs and tissues resulting from any action or inaction.

Simply put - any injury or damage is a harm to health. Everyone understands what trauma is, but what kind of damage is meant here? This is worth talking about in particular.

The concept of "harm to health" complete list damaging factors: physical, biological, chemical and mental. The impact of any of them on the human body, which resulted in a violation of the functions of its organs and tissues, is a harm to health.

If the victim was beaten with a heavy object wrapped in soft tissue, then the anatomical integrity of his body will not be violated, because there are no cuts on him, he does not bleed. However, the functions of his organs will suffer: soft tissues will ache from the bruises received, and the work of the liver and kidneys may be disrupted. If the blows hit the head, it might end up in a concussion.

A measure of the severity of harm to health

The Criminal Code of the Russian Federation determines the degree of severity of harm caused to human health. It's lightweight moderate and serious harm. Who, and how, determines the degree of harm done to a person?

There are qualifying signs established by the Criminal Code of the Russian Federation, which determine the degree of severity of the damage. The determination takes place on the basis of qualifying criteria based on medical criteria established by the Ministry of Health and Social Development. At the same time, they are guided by the "Rules for determining the severity of harm caused to human health."

grievous harm health, harm, dangerous to human life is:

Loss of vision, hearing, speech, any organ or its functions (as a result of an injury, for example, a hand, when it remained intact, but motionless);
- abortion;
- drug addiction, substance abuse;
- indelible disfigurement of the face;
- mental disorder;
- loss of ability to work by at least a third;
- complete loss of ability to work.

Harm to health of moderate severity:

Prolonged health disorder;
- Persistent loss of working capacity by less than one third.

Light harm health:

short-term health disorder;
- minor loss of performance.

How to claim health damages

In case of damage to health of any degree of severity, each citizen may demand compensation for the damage caused to his health. Damage is a material expression of the harm done.

Professional legal assistance will help to avoid problems in judicial and medical authorities.

Too often in our, still striving to become a legal state, a person who has harmed the health of another person evades responsibility and gets off with meager compensation. Everyone knows accident examples with the participation of high-ranking persons, in which the victims themselves almost become accused.

Injuries received at work, the employer, too, often seek to hide or blame the victim for negligence.

Complete material damage

An agreement on full liability can be concluded with employees of special positions or employees performing special work. These positions and works are listed in the Decree of the Ministry of Labor of Russia No. 85.

For example, the list includes positions:

Forwarding driver;
salesman;
cashier;
warehouse manager, etc.

An agreement on full liability can be concluded with managers, their deputies and chief accountants (part 2 of article 243 and part 1 of article 277 of the Labor Code of the Russian Federation).

Cases of full liability are listed in Article 243 of the Labor Code. In particular, these include the following situations:

The damage was caused in a state of alcoholic, narcotic or other toxic intoxication;
causing damage not in the performance of work duties by the employee;
The employee divulged a trade secret.

Maximum deduction amount

With full financial responsibility, the employee compensates for the entire amount of damage. But in this case too, one has to calculate maximum amount deductions for each month, since more than 20% of the salary cannot be withheld (part 1 of article 138 of the Labor Code of the Russian Federation).

The head of the company has the right to decide the issue of withholding material damage from the employee. He can (Article 240 of the Labor Code of the Russian Federation):

Collect a debt in the amount of the average monthly salary (with limited material liability of the employee);
fully or partially forgive the damage.

Any decision of the leader is issued by order. The head of the company must issue an order within one month from the date when the amount of material damage is established (part 1 of article 248 of the Labor Code of the Russian Federation).

Just do not forget that the employee must be familiarized with the order for the recovery of damage against signature. If he refuses to sign the order, they draw up an act.

For an accountant, the order is the basis for withholding the amount of damage from the employee's salary.

In some cases, the employer will still have to file a claim with the court, in particular (parts 2 and 4 of article 248 of the Labor Code of the Russian Federation):

If the employee disputes the amount of material damage, the compensation of which is charged to him by the employer;
the employee refuses to voluntarily compensate for material damage;
the employer missed the monthly deadline for issuing an order for the recovery of damages;
to recover a part of the amount of damage that exceeds the average monthly salary;
that the employee reimburse the company for expenses that cannot be recognized as direct actual damage.

In this case, a reduced limitation period is applied - one year (part 2 of article 392 of the Labor Code of the Russian Federation).

Significant property damage

infliction significant damage is an estimate, and therefore if you want to know how much damage is considered significant, then here specific amount does not stand out.

When calculating the presence of causing significant damage in the actions of the perpetrator, one should proceed from the following factors:

The value of the damaged or destroyed property of the victim;
- financial condition criminal;
- the values of the destroyed and damaged property of the victim;
- the possibility of restoring property.

To date, the law provides for the following calculation of damages:

Significant damage is defined as the amount of damage in an amount that exceeds forty or more of the base amount determined on the day the crime was committed;
- damage in a large amount is considered damage of 250 or more times;
- damage on an especially large scale is damage 1,000 or more times greater than the amount of the base value recorded on the day the crime was committed.

Reimbursement procedure:

In order to receive compensation for the damage, it is necessary to send a claim to the court;
- according to the result of the trial, the court will decide on the merits of the claim in the verdict. When passing a sentence, the court decides whether the claim is subject to satisfaction, in what amount and in favor of whom, and also whether pecuniary damage is subject to compensation, if the claim was not filed;
- if the victim wants compensation in kind, that is, to receive the same thing, but this is impossible to do, then the defendant can compensate for the cost of significant damage in monetary terms. The amount must be the same as the amount caused major damage so that the victim can freely buy the same thing. In this case, the court may award the payment of additional compensation not only for material, but also for moral damage;
- the amount to be recovered may be less if the perpetrator compensated part of the damage caused. But the amount may be more, since in addition to the value of the stolen item, the damage associated with damage to property, as well as lost profits, is also taken into account. Moreover, all this is determined not on the day the crime was committed, but during court hearings, and sometimes even at the time of recovery of the amount awarded from the culprit.

If citizens by their actions caused harm to a person or legal entity, they are obliged to make up for property losses. Compensation for material damage may occur on the personal initiative of the guilty person. If he does not agree with the demands made or evades payment of compensation, the court will help the victim to protect his rights. And already there a decision will be made on the punishment of the defendant and the amount of payments to the plaintiff.

Grounds for compensation for material damage

In order to seek compensation for harm, you need to find out what applies to it. In civil procedural law they recognize the result poor quality services, damage to property due to an accident, fire, traffic accident, monetary loss. Damage may include the following:

receiving physical loss as a result of damage or loss of property;
the cost of its restoration;
lost profit.

If the fact of fulfillment of one or more of these conditions is confirmed, it can be argued that damage has been caused to the injured citizen, which is subject to compensation.

The person who committed the crime must be identified. It can be one or more people. Responsibility is imposed not only for damage caused by the perpetrator to the property of an individual, but also for damage to an organization or enterprise. Sets common grounds liability for causing harm under Article 1064 of the Civil Code of the Russian Federation:

The damage caused must be compensated in full.
If the defendant's guilt cannot be proven, there will be no grounds for claiming damages.
A citizen can harm by doing lawful actions. Then the blame for the damage is removed from him.

If the plaintiff and the defendant executed the contract, then the problem of causing harm will be considered in accordance with its clauses. Disputes between an employee and an employer must be regulated by the rules provided for by the Labor Code. According to the legislation of the Russian Federation, not only Russians, but also citizens of other states can receive compensation for losses incurred. So if the property of residents of Ukraine, Kazakhstan and other countries was stolen or damaged in Russia, they can come to the law enforcement agencies of the Russian Federation to protect their interests. In some situations, the obligation to compensate for property damage may be imposed on a person who did not directly cause harm, but is related to the offense. For example, for damage caused by an employee in the performance of official duties, the responsibility for its compensation rests with the enterprise. For the actions of minors, contrary to the law parents and guardians will be responsible.

Procedure

Important! One of the first steps in the victim's course of action should be to address the perpetrator. He should be offered voluntary compensation for material damage.

In accordance with the articles of the Civil Code of the Russian Federation, it is allowed to do this in several ways:

financially, by transferring to the victim the property identical to the lost one;
self-correcting damage;
making up for losses in cash.

If you agree without involving law enforcement If it doesn't work, you need to file a lawsuit in court. The place of consideration of the claim will depend on the amount of damages incurred:

If the amount of damage is up to 50,000 rubles, you must apply to the Magistrate's Court.
If the damage amounted to more than 50,000 rubles, the claim is sent to the district court.

Documents to the statement of claim are required to confirm the loss of property or money and reflect the fact of causing harm to the plaintiff. In addition, the relationship between the damage and the actions of the defendant should be visible from the documents. Sometimes the inaction of officials can lead to property losses. They will also be responsible.

Statement of claim

The civil action is addressed to the court at the location of the defendant. It can be sent by mail or delivered to the reception in person. The statement of claim should describe the situation in which material damage was received, indicating the exact date and place of the event. All known information about the defendant must be provided. The amount of compensation must be substantiated with the help of calculations and supporting documents. The claim must clarify whether the victim offered the defendant to settle the issue out of court, and whether the refusal was received. Documents proving the stated facts, as well as a receipt for payment of the state duty, are attached to the claim. For each of the defendants, a copy of the statement of claim with a set of attached documents is issued. The victim can deal with the execution, sending the application to the court, as well as participation in the process himself. He has the right to act through legal representative. The powers of the latter to speak on behalf of the plaintiff are confirmed by a power of attorney certified by a notary.

What determines the amount of compensation

To determine the amount of compensation, it is necessary to estimate the amount of losses incurred. If the victim has documents on the value of the damaged property, they can serve as confirmation of the size of the claims to the guilty person. In the absence of supporting documents, you can resort to the services of evaluators or conduct an examination. When conducting such research, the defendant also has the right to be present, since he is an interested person.

If the victim has additional expenses due to damage or loss of income, he may demand compensation from the guilty party. For example, when recovering untimely paid funds, the plaintiff has the right to provide for the collection of penalties for late payment. In considering the amount of damages, the judge may not agree with the calculation of the amount of penalties brought against the defendant, and change the amount that the offender will have to recover. If it is impossible to accurately calculate the amount of damage, the court will independently determine the amount of compensation. At the same time, he is guided by the principles of reasonableness and justice. In matters of compensation for damage received in an accident, changes in legislation should be monitored. Periodically, new bills are developed and adopted regarding the conditions of compensation for OSAGO.

When Exemption from Liability is Possible

After considering the circumstances of the case, the court may consider the actions of the accused to be lawful and decide to release him from the obligation to compensate for property damage. This is possible in the following cases:

Infliction of harm on intent and with the consent of the victim.
Causing material damage in self-defense.

Attention! Due to recent changes in legislation, the legal information in this article may be out of date!

Our lawyer can advise you free of charge - write a question in the form below:

The law classifies violations of the law as sabotage directed at a person or property. Property damage has a financial expression and entails material consequences. The injured party has the right to demand compensation for the losses incurred, that is, compensation for material damage, if it is proved that the losses are real.

The legislative framework

The fundamental legislative act that regulates the issues of compensation for material damage is the Civil Code of the Russian Federation. Chapter 59 is devoted to the obligations of citizens or legal entities as a result of causing harm, with the exception of paragraph 4, which covers issues of compensation for causing moral damage. Thus, the law distinguishes between material and moral damage and qualifies these concepts in different ways.

The Labor Code also regulates issues of liability in relations between an employee and an employer in chapters 37-39, Art. 233, 237-250.

Grounds for compensation for material damage

Material damage to the injured party is awarded by a court order. Consideration of the case begins after the plaintiff files a statement of claim. It reflects the essence of the claims and the requirement to compensate for the losses incurred. That is the basis for starting a trial.

The court considers the question of the validity of the plaintiff's claim that it is necessary to compensate for material damage. If a positive decision is made, then it becomes the basis for the defendant to pay damages. If there is no court order with a positive decision, then the plaintiff does not have the right to demand compensation for material damage, because this means that the court did not see good reason to satisfy the claim.

Reimbursement procedure

There is no standard rule for compensation for material damage. The order of consideration is based on the individual circumstances of the case, the claims of the parties, the specific details of each case. Special cases of relations between the parties can be considered on the basis of the norms of the Labor Code, for example, the relationship between an employee and an employer.

The order of the procedure for compensation for losses in this case provides for the obligation of the defendant to voluntarily pay off the material damage caused to the plaintiff. At the same time, the employer must provide strong evidence that the damage is real and caused by this particular citizen. If the employee does not agree to voluntarily pay off the debt, the employer has the right to go to court.

Thus, loss recovery algorithm should take place in stages, regardless of who the parties to the proceedings are:

Voluntary refund.
Filing a lawsuit in court (in case of failure to comply with paragraph 1).
Consideration of the claim by the court.
Issuance of a decision on compensation for damages (or refusal).

Compensation period financial loss is established on an individual basis, but, based on judicial practice, it cannot be more than 3 years.

Exists statute of limitations for appeal– 1 year from the date the damage was caused.

The place of consideration of the application depends on the amount of compensation: if the claim is estimated within 50 thousand rubles, then it is considered by the Magistrate's Court. In other cases - the court of general jurisdiction.

Statement of claim

When preparing a statement of claim, it is necessary to be based on the norms civil law, which regulates the form and content of claims. The heading of the claim indicates the name of the court, information about the plaintiff and the defendant (if these are individuals, then full name, if legal - then the name of the company or institution).

signs of property that suffered damage, what actions or inaction led to losses;
what is the harm?
causal relationships of the committed act, that is, how the defendant got access to the property;
the applicant's claim for damages, indicating the amount of payment.

You can download a sample of such a statement of claim.

It is necessary to attach to the application a calculation that will clarify the specified amount of payments. The plaintiff may assess the amount of damage on his own or engage an independent appraiser.

Documents should be attached to the claim: testimonies about the circumstances of the incident, if any, an examination report, a copy of the contract, if the plaintiff and the defendant were in a contractual relationship.

All documents that confirm the fact of causing material damage or inaction of a citizen, which entailed losses, serve as an evidence base. The claim is signed by the applicant personally or his authorized representative.

Claims for damages are filed with court at the place of residence of the defendant, if it is a conflict between individuals. If claims are made against the enterprise, then the claim is filed at the place of its location. The difficulty of choosing a court may arise if the defendant does not have a permanent place of residence, or the plaintiff does not know about his place of residence. In this case, the application is submitted to the court at the last known place of residence of this citizen.

Civil claim for damages

A claim for compensation for material damage is filed with the court in the form of an application, which must describe the circumstances as a result of which the plaintiff suffered losses from the other party. In addition to describing the details of the case, it is necessary to indicate the amount of compensation for damages to restore the violated rights of citizens or legal entities. The law qualifies this document as a civil action.

The plaintiff should be aware that before filing a claim with the court, he must send the defendant a claim for damages in the pre-trial order. If the debtor does not agree that he is the culprit of the losses and refuses to pay the damage, then the citizen can apply to the court with a request to resolve the problem. The defendant's refusal is desirable in writing.

Features of compensation for material damage by an employee to an employer and by an employer to an employee

According to the law, the employee is obliged to compensate the damage caused by him to the employer. In some situations, the conflict is resolved in court:

the amount of damage is within the amount of the employee's income, but more than 1 month has passed since the calculation of the damage;
the amount of losses exceeds the salary of a citizen, so he does not agree to pay it voluntarily;
the employee quit, does not repay the debt to the enterprise to compensate for the damage caused to him.

If the amount of loss is less than the employee's salary, then the manager has the right to recover money without going to court, by issuing an order no later than 30 days from the date of detection of the fact of damage. An employee who does not agree with the decision of the employer may apply to the court with a claim for the unlawfulness of the claims made.

In order to avoid going to court, the employee and the employer can reach a mutual agreement on the order in which the obligations will be fulfilled. An employee can pay the company in cash or in property. Usually this situation ends.

In a situation where claims against the employer come from the employee, the algorithm of his actions is identical to that taken by the employer, that is, it is an appeal to the court if a pre-trial agreement is not reached. The reasons for the conflict may be the non-payment of the remuneration due or promised to the employee, additional payments, wages.

Compensation for material damage from committing criminal acts

When committing a crime, property damage may be inflicted on the victim, for example, if valuables, property is damaged or destroyed. In this case, the perpetrator shall be charged material damage equal to the value of the stolen or damaged items or the amount that the victim spent on restoration or repair.

An application for damages is accepted by the investigator from injured party and attaches it to the criminal case under investigation. In the future, the court considers it in parallel with the consideration of the crime case. If the victim submits an application at the end of the court case, then it is also subject to consideration. The text of the claim is similar to the one filed at the preliminary investigation stage.

The text of the claim for the recovery of material compensation can be downloaded, filling it out according to the model will not cause difficulties. It is much more difficult to confirm the claims, that is, to provide evidence for the claims presented in the claim.

When do you need to pay for damages?

Material damage is recovered by the court if damage has been caused to citizens or a company. The plaintiff demands payment in the application if the damage can be assessed in money. This may be the loss of income, property, or the loss of the opportunity to receive funds due to the fault of the other party.

Alternatively, the plaintiff can claim damages in monetary terms if damage to health has been caused, the restoration of which will require money: for treatment, purchase medicines, rehabilitation.

The right to compensation for material damage has both physical and legal entities. Foundations to file a claim:

A citizen has not received or received incomplete income due to bad faith, negligence of an official.
The property of citizens is lost, damaged as a result of the actions of other persons.
Citizens have incurred expenses through the fault of others.

The inaction of a person, which caused losses, also gives the right to citizens or companies to write an application to the court for compensation for the damage incurred.

What is the amount of compensation, and what does it depend on?

The legislation of the Russian Federation provides for the presumption of guilt of a person who is accused of causing material damage. It assumes that the defendant must independently collect the evidence base that the accusation against him is unfounded and has no basis. The plaintiff, in turn, provides evidence that confirms the fact of causing property damage by this particular citizen, company or official.

In the application for compensation for losses, the applicant indicates the amount in which the damage resulted. A simple indication of the amount will be unfounded if the plaintiff does not support it with a document with a calculation of damages in monetary terms. The more detailed it is, the more convincing the calculation will be.

Directly the amount of payments cannot be unambiguous. Its value depends on the actual losses calculated independent experts and documented. For example, the amount of damage can be determined when the property is damaged, if we take into account the cost of repair or restoration work.

When is exemption possible?

The legislation regulates cases when the defendant is exempted from compensation for material losses. Compensation may be reduced or canceled completely if the court sees in the process of considering the case the following circumstances:

the intent and assistance of the victim himself in causing damage to property;
the negligence of the plaintiff led to a situation that resulted in damage to property;
defendant is not at fault for causing damages.

The court may decide to reduce the amount of payments, even if the defendant's guilt is proven. The reason for this may be his personal financial situation: low wages, lack of income due to a serious illness, and other individual reasons.

Material damage is determined by its actual manifestation. The victim can analyze the harm done, calculate the cost of the damages and apply to the court for their compensation. But the restoration of damage is made only by the decision of the judge.

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