Compensation for damage in administrative law. The procedure for compensation for property damage and moral damage caused by an administrative offense

In the law, moral damage is understood as the moral and physical suffering of a citizen, which brought him any actions or inaction of unauthorized persons. Compensation for moral damage is provided for in Articles 151, 1099 - 1101 of the Civil Code of the Russian Federation and Art. 4.7 of the Administrative Code. If they are compensated by a court decision at the same time as the appointed one, then the moral damage can be compensated for.

The moral suffering of the victim can manifest itself as irritability, anxiety, fear of publicity, low mood. These experiences cause mental discomfort. Physical suffering manifests itself in the form of trauma, pain, or exposure to external negative factors. The Supreme Court, in Resolution No. 10 of 20.12.2004, cites such manifestations of moral harm as worries about the death of a loved one, loss of earnings, disclosure of medical or family secrets, restriction or loss of any rights, etc.

Responsibility for the damage caused

The person who caused them should be responsible for the moral and physical experiences delivered. At the same time, it must independently prove its innocence.

Most often, victims of such administrative offenses as:

• non-compliance with traffic rules by the culprit;
• illegal appointment of an administrative penalty.

Important! The limitation period does not apply to claims for compensation for moral damage in case of violation of non-property personal rights. If property rights are violated, the general deadlines for filing claims apply.

Compensation procedure

Compensate for moral damage regardless of or simultaneously with it. Moral harm is subjective, so it can be difficult to determine the extent of the damage received. Art. 1101 Civil Code implies monetary compensation for damage. The court determines the amount of compensation in each case individually, taking into account the characteristics of the suffering caused to the victim and the degree of guilt of the offender.

When assessing the physical and mental suffering of the victim, the court considers the following characteristics:

• how severe physical injuries received by a citizen are for health;
• in what circumstances the moral damage was delivered. For example, if the victim was not fastened in the car with a seat belt and was injured as a result of an accident, the court will reduce the amount of moral damage caused to him, since he himself violated traffic rules and received more serious injuries as a result;
• the relationship between the suffering experienced by the victim and the offense committed.

In some cases, moral damage is compensated even when there is no fault of third parties in causing the damage, namely:

• exposure to a source of increased danger;
• dissemination of defamatory information about a citizen;
• illegal conviction or;
• unlawful.

Compensation for moral damage is allowed to be added to other claims or to issue a separate statement. A claim is drawn up in accordance with Art. 131, 132 Civil Code, it should contain the following information:

1. The culprit of the damage caused is indicated.
2. The circumstances are described.
3. Evidence is provided for the occurrence of suffering as a result of this violation.
4. Clarified in what concrete moral damage is expressed.

Important! If the victim's health or life has suffered physical harm, the moral damage is already considered to have been caused. In this case, the court sets only the amount of compensation.

In case of violation of the property interests of a citizen, they are filed with a magistrate court if the cost of the claim is not more than 50,000 rubles, or with a district court at a price of more than 50,000. You should also apply to a district court when protecting non-property rights.

The state duty in these cases is 300 rubles on the basis of subparagraph 3 of paragraph 1 of Art. 333.19 of the Tax Code, since the moral damage itself is non-property in nature.

It is advisable to attach documents confirming the infliction of physical and moral distress to the claimant to the claim. This will give the court an opportunity to quickly assess the circumstances of the case. As evidence, a medical report on exacerbation of a chronic illness due to stress, a certificate from a psychiatrist, etc. can be presented. The calculation of the amount of the claim is also attached to the claim.

Moral damage caused to a citizen by unauthorized persons must be compensated for in cash. The culprit compensates for the damage voluntarily or through the court. In case of voluntary compensation, the amount of payment is determined by agreement of the parties. If the issue is resolved in a claim proceeding, the court determines the amount of compensation taking into account the circumstances of the commission and the personal characteristics of the victim.

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On compensation for damage in the Administrative Code and in other laws

Attachment 1.

Article 4.7. Compensation for property damage and moral damage caused by an administrative offense

The harm caused to the person or property of the citizen is subject to compensation in full market value by the person (physical or legal, official) who caused harm by his action or inaction.

To prove your ownership of the property, it is necessary and sufficient to prepare in advance 1) The decision of the meeting of citizens (neighbors) - a certificate of the use of the property and its size; 2) Photos or videos of property. For some other materials, see the sites: www. avtoputin. narod. ru , www. avtomedvedev. narod. ru , and etc.

Commentary on Article 4.7

1. Questions of compensation for property damage are governed by Articles 12, 13, 15, 16 and Chapter 59 of the second part of the Civil Code of the Russian Federation of 01.26.1996 N 14-FZ (as amended on 02.02.2006).

So, according to 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 damage caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm.

Article 1069 of the Civil Code of the Russian Federation provides that harm caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local authorities or officials of these bodies, including as a result of the issuance of an act of a state body that does not comply with the law or other legal act or a local government body, is subject to compensation at the expense of the treasury of the Russian Federation, the treasury of a constituent entity of the Russian Federation or the treasury of a municipal formation, respectively.

On the basis of article 15 of the Civil Code of the Russian Federation, it is provided that a person whose right has been violated may demand full compensation for the losses caused to him, if the law or contract does not provide for compensation for losses in a smaller amount.

Thus, civil legislation establishes additional guarantees to protect the rights of citizens and legal entities from illegal actions (inaction) of public authorities, aimed at implementing the provisions of Articles 52 and 53 of the Constitution of the Russian Federation, according to which everyone has the right to compensation by the state for harm caused by illegal actions (or inaction) of public authorities or their officials, including abuse of power.

It should be noted that the adoption of the Federal Law of 02.05.2006 N 59-FZ "On the Procedure for Considering Appeals of Citizens of the Russian Federation" enshrines the possibility of a citizen for damages and compensation for moral harm caused by illegal action (inaction) of a state body, local government body or official , when considering an appeal by a court decision.

A dispute on compensation for property damage is considered in court at the initiative of the parties within the framework of the Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (as amended on December 5, 2006).

2. In the case of consideration of a case on an administrative offense not by a judge, but by other bodies and officials who, on the basis of the current legislation, are endowed with jurisdictional powers, the provisions of the third section of the Code of Administrative Offenses of the Russian Federation apply.

However, compensation for property damage can only be realized through civil proceedings.

3. One of the ways to protect civil rights provided for by the current legislation is compensation for moral damage, Articles 12, 13 of the Civil Code of the Russian Federation.

Compensation for moral damage cannot be equated with property liability, since we are talking about such concepts as "honor", "dignity", "reputation". For example, dignity and the right to defend one's good name are recognized for every person and are protected by the state as the highest values \u200b\u200b(Articles 2, 21, 23 of the Constitution of the Russian Federation).

Moral harm - physical or mental suffering caused by actions that violate the personal non-property rights of a citizen or encroach on other non-material benefits belonging to a citizen, as well as violate his property rights, are subject to monetary compensation in the amount determined by the court. Compensation for moral damage is carried out regardless of the property damage subject to compensation (Articles 151, 1099 - 1101 of the Civil Code).

According to clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10 "Some issues of the application of legislation on compensation for moral harm" (as amended by Resolution of the Plenum of the RF Supreme Court of January 15, 1998 N 1), moral harm is understood as moral or physical suffering caused by actions (inaction) that infringe on intangible benefits belonging to a citizen from birth or by virtue of law (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) or violating his personal non-property rights (the right to use one's name, the right of authorship and other non-property rights in accordance with the laws on the protection of rights to the results of intellectual activity) or violate the property rights of a citizen.

An important guarantee is the fact that the statute of limitations does not apply to claims for compensation for moral damage, since they arise from personal non-property rights and other intangible benefits.

The issue of compensation for moral damage can be considered by the court independently, regardless of the existence of property damage, while the amount of compensation depends on the nature and amount of moral or physical suffering, the degree of guilt of the perpetrator, and other circumstances that were caused to the citizen.

The honor and dignity of a citizen is also protected by the criminal law, which provides for liability for libel and insult (Articles 129, 130 of the Criminal Code of the Russian Federation). Libel and insult are crimes committed with direct intent. If the victim believes that the information that defames him has been disseminated deliberately, he has the right to apply to the court with a complaint about bringing the perpetrator to criminal responsibility. Simultaneous consideration of the criminal case and the resolution of the claim under Art. 152 of the Civil Code of the Russian Federation is unacceptable. However, the refusal to initiate or terminate a criminal case, the issuance of a verdict (both guilty and acquittal) do not prevent the consideration of a claim for the protection of honor and dignity in civil proceedings.

Obligations due to harm are inherent in a special procedure for qualifying the guilt of an act, which is different from the establishment of signs of guilt in the commission of an administrative offense: the causer of harm is exempted from his compensation only if he proves that the harm was caused not through his fault. Federal law may provide for compensation for harm even in the absence of signs of guilt in the act of the tortfeasor.

4. If, when deciding on the appointment by a judge of an administrative penalty for If an administrative offense is at the same time resolving the issue of compensation for property damage, then the resolution on a case on an administrative offense indicates the amount of damage to be compensated, the terms and procedure for its compensation (see the commentary to Article 29.10 of the Administrative Code of the Russian Federation).

An administrative offense is an unlawful, guilty act (inaction) of an individual or legal entity, for which administrative responsibility is established by this Code or the laws of the constituent entities of the Russian Federation on administrative offenses ().

Signs of an administrative offense

From the definition of an administrative offense, given in article 2.1 of the Administrative Code of the Russian Federation, the following features can be distinguished.

1. Wrongfulness of action (inaction)... Illegal - not based on the law (illegal) action or inaction, violation of the law that regulates certain relations;

2. Guilty act (omission)... Guilt in committing an offense is characterized by intent or negligence (a form of guilt).

The definition of the concepts of intent and negligence is contained in article 2.2 of the Administrative Code of the Russian Federation:

deliberatelyif the person who committed it was aware of the unlawful nature of his action (inaction), foresaw its harmful consequences and wished for such consequences to occur, or deliberately allowed them or treated them indifferently.

An administrative offense is recognized as committed by negligence, if the person who committed it foresaw the possibility of the onset of harmful consequences of his action (inaction), but without sufficient grounds for that, presumptuously counted on the prevention of such consequences or did not foresee the possibility of such consequences, although he should and could have foreseen them.

3. Subject of the offense... Both an individual and a legal entity can be brought to administrative responsibility.

Age... A person who has reached the age of sixteen years at the time of the commission of an administrative offense () is subject to administrative responsibility.

Foreign citizens... Foreign citizens, stateless persons and foreign legal entities who have committed administrative offenses on the territory of the Russian Federation are subject to administrative liability on a general basis ().

4. Punishability of an act: for the committed act of the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation, administrative responsibility is established.

To bring a person to administrative responsibility, it is necessary not only to have the feature specified in clause 1 (wrongfulness - not based on the law (illegal) action or inaction), but also to have an appropriate rule of law providing for administrative punishment.

It follows from the above that it is unacceptable to bring to administrative responsibility for an unlawful (unlawful) act for which administrative responsibility is not provided either by the Code of Administrative Offenses of the Russian Federation or by the laws of the constituent entities of the Federation.

Composition of an administrative offense

The signs of an administrative offense as a concept should be distinguished from the elements and signs of the composition of a specific administrative offense.

Composition of an administrative offense - this is a set of signs, in the presence of which a specific act becomes an administrative offense.
The composition of an administrative offense is a combination of several elements that contain the same type of set of attributes: subject, subjective side, object, objective side.

1) Object of an administrative offense - these are public relations, protected by measures of administrative responsibility, which are harmed by an unlawful act.

The common object for all administrative offenses is the totality of public relations regulated by the norms of administrative and some other branches of Russian law, which is protected by measures of administrative responsibility.

Allocate generic object administrative offense, which corresponds to each of the chapters of the Special Part of the Code of Administrative Offenses of the Russian Federation). For example, the object of offenses grouped in Chapter 5 of the Administrative Offenses Code of the Russian Federation will be the rights of citizens, in Chapter 7 of the Administrative Offenses Code of the Russian Federation - relations in the field of property protection, in Chapter 12 of the Administrative Offenses Code of the Russian Federation - relations in the field of road traffic, etc.

Allocate immediate object an administrative offense, which is determined in each chapter of the Special Part of the Code of Administrative Offenses of the Russian Federation with a specific composition of an administrative offense.

For example, the direct object of the encroachment, according to article 5.61 of the Code of Administrative Offenses of the Russian Federation, will be the honor and dignity of a person, while the generic object, as mentioned above, is the rights of citizens.

2) Objective side of an administrative offense - This is a set of signs that characterize the external manifestation of this offense.

An administrative offense is, first of all, an unlawful act (action or inaction), as well as the harmful consequences that have occurred and the cause-and-effect relationship between them.

Establishing a cause-and-effect relationship is necessary to determine the circumstances of the onset of negative consequences, i.e. to determine the validity of the occurrence of such consequences as a result of a wrongful act, and not for other reasons. For example, to bring to administrative responsibility under Article 12.24 of the Code of Administrative Offenses of the Russian Federation ("Violation of the Traffic Rules or the rules for operating a vehicle, resulting in minor or moderate harm to the victim's health"), it is not sufficient to state that the victim spent a month in the hospital after the accident. It should be established whether the driver, observing the traffic rules, could have avoided a collision with a pedestrian, or the injury to health was the result of the injured party's own misconduct. In addition, it is necessary to establish that a short-term or long-term health disorder during the specified period was the result of the actions of the person who violated the traffic rules, and not of other events that occurred earlier. These circumstances can be established on the basis of expert opinions, medical reports.

Material composition of the offense

The above example describes the material composition of the offense, the objective side of which always includes the onset of negative material consequences. As in the example above - harm to the health of the person. The consequence can be fire, damage, etc. The material composition of the offense assumes that if the consequences indicated by the corresponding article of the Administrative Code of the Russian Federation did not occur, then the person is not brought to administrative responsibility.

Formal composition of the offense

However, most of the offenses are formal. This means that for the onset of administrative responsibility of a person, the onset of any harmful material consequences is not required. Therefore, there is no need to establish cause-and-effect relationships. The harmful consequences of an administrative offense with a material composition are, in the opinion of the legislator, in fact, in the public danger of the act itself. For example, in chapter 12 of the Code of Administrative Offenses of the Russian Federation:

• Driving a vehicle not registered in accordance with the established procedure ();
• Driving a vehicle by a driver who does not have documents for the right to drive it, registration documents for the vehicle ();
• Driving in the presence of malfunctions or conditions under which the operation of vehicles is prohibited ();
• Driving a vehicle by a driver who does not have the right to drive a vehicle ();
• Driving a vehicle by a driver in a state of intoxication ();
• Exceeding the set speed ()
• etc.

Optional signs of the objective side of the composition of an administrative offense

The optional features traditionally include time, method, place, repetition, systematicity, malice, repetitiveness of the act, the nature of its commission.
For example, the composition of petty hooliganism is formed by actions expressing clear disrespect for society (sign " nature of the commission"), and it is in public places (sign" a place").

3) Subject of an administrative offense - a natural or legal person. An individual can be brought to administrative responsibility if he has reached the age of 16 at the time of committing an administrative offense and meets the sanity criterion, i.e. lack of signs of mental illness at the time of the offense.

General subjects of the offense - any sane person who has reached the age of 16.

Special subjects of the offense - officials, minors, vehicle drivers, etc.

Special subjects of the offense - servicemen, persons with special ranks, and other persons.

4) Subjective side of an administrative offense - This is the mental attitude of the subject to the illegal action or inaction and its consequences.

The subjective side of an administrative offense is characterized primarily by guilt, i.e. a special deliberate and volitional attitude of the subject of the offense to the act being committed and its consequences in the form of intent or negligence, as mentioned above.

Optional signs of the subjective side may be target committing an offense (representing the offender about the desired result, to which he seeks) and motive (motivation that pushes him to commit an offense).

• For example, Article 5.22 of the Code of Administrative Offenses of the Russian Federation provides for punishment for receiving a ballot paper or a referendum ballot paper at an election commission, referendum commission with the aim of vote instead of a voter ..;
• Article 7.12 of the Code of Administrative Offenses of the Russian Federation provides for punishment for the import, sale, rental or other illegal use of copies of works or phonograms in order to generating income in cases where copies of works or phonograms are counterfeit ...;
• contains a sanction for interfering with the activities of the Commissioner for Human Rights in the Russian Federation with the aim of influence his decisions.
• provides for responsibility for propaganda and public display of Nazi attributes or symbols, or public display of attributes or symbols of extremist organizations. Motives for action should be taken into account when assessing the guilt of the offender. Such motives should be conditioned precisely by extremist orientations in the understanding of the Federal Law "On Counteracting Extremist Activity."

1. A judge, when considering a case on an administrative offense, has the right, in the absence of a dispute on compensation for property damage, simultaneously with the appointment of an administrative penalty, to decide the issue of compensation for property damage.

Disputes about compensation for property damage are resolved by the court in the manner of civil proceedings.

2. In a case of an administrative offense considered by other authorized bodies or officials, a dispute on compensation for property damage shall be resolved by a court in the manner of civil proceedings.

3. Disputes on compensation for moral damage caused by an administrative offense are considered by the court in the manner of civil proceedings.

Commentary on Article 4.7

1. Obligations due to harm are determined by Ch. 59 GK. According to paragraph 1 of Art. 1064 of the Civil Code, harm caused to the person or property of a citizen, as well as damage caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm.

The Civil Code distinguishes between causing harm in a state of necessary defense and in a state of extreme necessity: harm caused in a state of extreme necessity is subject to compensation by the inflictor of harm, in contrast to harm caused in a state of necessary defense, which is not subject to compensation if it has not been exceeded limits (see Articles 1066, 1067 of the Civil Code).

Property damage and moral harm caused as a result of an administrative offense committed by an official of a state or municipal body are subject to compensation at the expense of funds, respectively, from the federal budget, the budget of a constituent entity of the Russian Federation or the local budget (see article 1069 of the Civil Code).

Moral harm - physical or mental suffering caused by actions that violate the personal non-property rights of a citizen or encroach on other non-material benefits belonging to a citizen, as well as violate his property rights, are subject to monetary compensation in the amount determined by the court. Compensation for moral damage is carried out regardless of the property damage subject to compensation (Articles 151, 1099 - 1101 of the Civil Code).

2. The procedure for compensation for property damage and moral harm caused by an administrative offense is determined by civil law - the procedural activity in this case is due to the commission of a civil offense. At the same time, sanctions are applied to the violator in accordance with civil law, along with administrative penalties imposed in accordance with the Code of Administrative Offenses.

Initiation of an administrative offense case as a stage in administrative offense proceedings. Protocol on an administrative offense. Officials authorized to draw up a protocol on an administrative offense.

Initiation of an administrative offense case - the initial stage of proceedings. With regard to proceedings on cases of administrative offenses, this stage has a specific procedural design. Its essence consists in drawing up a special procedural document, namely, a protocol on an administrative offense.

Since the drawing up of such a protocol is attributed to the competence of the corresponding authorized official, insofar as it is he who initiates the initiation of the case (in some cases, the representative of the public association). This point deserves attention, since in other cases administrative proceedings may be initiated on the initiative of, for example, citizens, public associations and even executive bodies. So, the proceedings on complaints begins from the moment a citizen submits a complaint about unlawful actions of executive bodies (officials), etc.

The initiation of a case by its legal significance can be qualified as a procedural action, which is a legal fact; it entails the emergence of a specific administrative procedural relationship. The reasons for initiating a case are: direct detection by an authorized official of the fact of an administrative offense; materials received from law enforcement agencies, as well as from other state bodies, local authorities, public associations; messages and statements of individuals and legal entities; messages in the media.

The basis for initiating a case is the availability of sufficient data indicating signs of an administrative offense (the presence of an offense event).

A case on an administrative offense shall be considered initiated from the moment of drawing up a protocol on its commission or the first protocol on the application of procedural measures or the issuance of a decision by the prosecutor to initiate administrative proceedings.

An administrative offense protocol is a procedural document testifying to the commission of this illegal act (of course, presumably). It is composed of authorized officials - representatives of those bodies that are competent to consider cases of administrative offenses (for example, officials of the police, control and supervisory bodies, etc.). Their list is contained in Art. 28.3 of the Administrative Code.

Full text of Art. 4.7 Administrative Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under article 4.7 of the Code of Administrative Offenses of the Russian Federation.

1. A judge, when considering a case on an administrative offense, has the right, in the absence of a dispute on compensation for property damage, simultaneously with the appointment of an administrative penalty, to decide the issue of compensation for property damage.

Disputes about compensation for property damage are resolved by the court in the manner of civil proceedings.
2. In a case of an administrative offense considered by other authorized bodies or officials, a dispute on compensation for property damage shall be resolved by a court in the manner of civil proceedings.

3. Disputes on compensation for moral damage caused by an administrative offense are considered by the court in the manner of civil proceedings.

Commentary on Article 4.7 of the Code of Administrative Offenses of the Russian Federation

1. An administrative offense may be accompanied by the infliction of property damage on a citizen, enterprise, institution or organization. Such damage is subject to compensation in accordance with the procedure established by law. Compensation for property damage is one of the ways to protect civil rights.

According to the Civil Code of the Russian Federation, the protection of violated or challenged civil rights is carried out by a court, an arbitration court or an arbitration tribunal. In the cases provided for by law, the protection of civil rights is carried out in an administrative manner. In this case, a decision taken in the order of administrative proceedings can be appealed to the court (Art. 11).

A claim for damages can be made by any natural or legal person. No special order is required to recognize a person's right to file a claim for damages.

From the content of part 1 of this article, it follows that a judge, when considering a case of an administrative offense and adopting a decision on the measure of administrative punishment, may at the same time decide on compensation for property damage. However, it is not limited to the amount of damage. However, the decision is admissible only in the absence of a dispute about damage. In addition, the commented article interprets this as a right, but not an obligation of a judge. In the decision on a specific case of an administrative offense, the amount of damage to be compensated, the terms and procedure for its compensation are indicated (part 2 of article 29.10). If there is a dispute about property damage, such a dispute is considered under the procedure of civil proceedings.

2. Part 2 of the commented article provides for the resolution of a dispute on compensation for property damage exclusively through civil proceedings in the event that the case of an administrative offense is considered not by a judge, but by other authorized bodies or officials.

The provisions of the commented article are based on the provisions of the Constitution of the Russian Federation on equal protection of all forms of ownership, that no one can be deprived of their property except by a court decision (part 2 of article 8, part 3 of article 35).

A decision on the issue of damage is made only in cases of adoption of a decision on an administrative penalty. In cases of termination of the case by proceedings, the issue of compensation for damage is not considered.

3. The Code for the first time regulates the issue of compensation for moral damage caused to a person by an administrative offense, referring to the procedure provided for by civil procedural legislation. The Civil Code of the Russian Federation (ogkrf.ru) defines moral harm as physical or mental suffering caused to a citizen by actions that violate his personal non-property rights or encroach on other intangible benefits, as well as in other cases provided for by law (Article 151). Compensation for moral damage is carried out in cash and regardless of the property damage subject to compensation. The amount of compensation is determined by the court depending on the nature of the physical and mental suffering inflicted on the victim, as well as the degree of guilt of the inflictor of harm in cases where guilt is the basis for compensation for harm. When determining the amount of compensation for harm, the requirements of reasonableness and justice must be taken into account (