Formation and Development of Compensation for Moral Damage in Russia.

Morozov Andrei Aleksandrovich PhD in Law Associate Professor, Department of Civil Law, North-Western Branch of the Russian State University of Justice 197198, Russia, g. Saint Petersburg, ul. Strel'ninskaya, 5-7, kv. 16 9126543@mail.ru Other publications by this author

Gudkova Margarita Olegovna Master's Degree, Department of Civil Procedural Law, Russian State University of Justice 197046, Russia, Saint Petersburg, Alexandrovsky Park str., 5, letter A, room 304 mgudkova96@gmail.com

The long-known and actively used institution of compensation for moral harm, expressed in monetary compensation for the physical or moral suffering of the victim of offenses, is one of the possible ways to protect non-property benefits^[1]. This institution has received regulatory and legal consolidation relatively recently. For a long time, the institution of compensation for moral damage was not separated from compensation for property damage caused to an individual. For a deeper understanding of the essence of this important tool for compensating for violated citizens' rights and identifying the causes of its imperfection today, it seems necessary to turn to the history of its development, retrospectively assessing the process of its formation and use in the past. As a result of this study, the authors will propose a periodization of the stages of development of the institute of compensation for moral damage.

Initially, the consolidation of the mechanism of compensation for moral damage in domestic legislation occurred due to the reception of the norms of Roman law, where encroachments on the person were the basis for the application of various sanctions to the violator. It is worth noting that from the ancient civil law to the period of the empire, this basis for the emergence of obligations has undergone many changes.

According to the laws of the XII tables , iniuria meant exclusively an encroachment on the bodily integrity of the Roman

citizen. There were three forms of encroachment:

1) The most severe is the membrum ruptum, for which revenge was allowed according to the talion principle^[2].

2) Less severe - os fractum, for which the obligation was imposed to pay the victim a fine of 300 assas if the harm was caused to a free person, and 150 assas to a slave.

3) The least severe form is the infliction of light beatings, offensive blows, and so on- verberatio, pulsatio. This imposed the obligation to pay the victim a fine of 25 ass.

Significant changes in this institution were made by praetorian law. Now iniuria meant not only physical attacks, but also attempts on personal intangible benefits of a person. Now the amount of the fine was determined by the praetor in each specific case independently, and was not initially determined in a fixed amount^[3].

Turning to the sources of Ancient Russia, it can be noted that the law regulating relations for compensation for damage caused was formed under the strongest influence of religious dogmas, also relying on the concept of justice, which has always been close to the Russian person and followed inextricably with his life. Compensation for moral damage has not been fixed for a long time by regulation, since its compensation was assumed initially^[4].

Many customs were aimed precisely at achieving this justice, the meaning of which was limited to revenge. For example, the then widely used custom of blood feud seems to be nothing more than a way to compensate for the mental suffering from the loss of a relative by causing the death of his killer^[5]. However, such a state of affairs, mediating the use of the mechanism of blood feud, could not coexist with the postulates of Christianity about the benefactors inherent in true believers. 

The founders of the current institution of compensation for moral damage can be considered contracts with Byzantium, concluded by Princes Oleg and Igor in 911 and 944, respectively. They established separate grounds for compensation for personal injury, borrowed and reworked from Roman law. For example, in accordance with article 4 of the 911 contract, the transfer of the murderer's property in the event of his escape to the victim's close relatives was provided for the commission of murder. If there was no property in the killer's property, then the killer continued to be searched for a death sentence.

Also, the contracts established monetary penalties for causing physical suffering, which corresponds to the current approach of the legislator, which provides for compensation for moral harm not only for moral suffering, but also for physical^[6]. Undoubtedly, one of the main problems of the implementation of the provisions of this institute was associated with a very low legal technique, point, casual regulation of the institute, as well as with the general illiteracy of the population, the lack of legal education, because of which the majority did not even suspect such a possibility as the protection of their violated rights. Let's be fair, in general, this can be attributed to any legal institution of that time.

The key normative legal act of the Old Russian state, published in the 11th century, "Russkaya Pravda" remained one of the main sources of regulation until the 16th century. It was this document that systematically regulated wide areas of public relations, in particular defining cases in which compensation for moral damage could be carried out, in addition to compensation for property damage ^[7].

So, for murder, insult (shame) or beatings, which were generally defined as "offense", a blood feud was allowed, which shows the influence of customs on the drafting of this normative legal act. Moreover, when beatings and insults were inflicted, only the offended person could take revenge, and when injuries were inflicted, the victim's close relatives had the right to take revenge, if he could not do it on his own. The insult could be expressed by physical actions, for example, by striking with a sword in a scabbard or with the hilt of a sword, damaging the beard and mustache, and so on^[8]. Verbal abuse was not singled out separately, it was always an addition to physical or material assault, such as the theft of a slave, a horse, and so on^[9].

The blood feud was aimed at protecting honor, restoring justice and mitigating the consequences of moral suffering. These goals are very similar to the goals of the modern institution of compensation for moral damage.

It is also interesting that the victim was provided with an alternative: he could have demanded payment of a fine instead of taking revenge. The fine was 12 or 40 hryvnia and depended on the severity of the offense. However, the priority among the methods of protection still remained blood feud.

For a very long time, this trend has remained unchanged. However, the Judicial Code of 1497, adopted by Ivan III, finally forbade the implementation of blood feud. Now, among the ways to protect personal rights, only the death penalty remains, which is permissible only for the most serious crimes against the person, as well as the collection of a fine (golovnichestvo)^[10].

The judicial officer secured the opportunity to defend his honor in court, that is, to protect intangible values. Moreover, in Medieval Russia it was believed that honor belongs to all people, with the exception of those who harm society (robbers, incendiaries, tati, and so on). At the same time, in Western Europe, many categories of people (butchers, barbers, executioners) did not have the right to go to court to defend their honor.

This legal act used the concepts of "barking", "swearing", "unseemly and obscene words" as an insult. It was here that verbal abuse was separated from physical abuse: for example, a false accusation of illegitimacy was now considered offensive^[11].

The judicial Code of 1550, adopted by Ivan the Terrible, paid more attention to procedural issues. Thus, the concept of a civil lawsuit appeared, which could be brought for crimes committed against a person, including insults. The amount of compensation remained dependent on the social status of a person in society^[12]. Especially large fines were imposed on "boyar children", serving people, serving orders.

It is important to note that in the Judicial Code of 1550, quarrels in the church or the royal chambers were especially punished, since this offended the honor of the tsar. Such acts were punished with at least a double fine for dishonor.

A significant step forward in the development of the institution of compensation for moral damage occurred after the adoption of the Judicial Code of 1649, which operated for more than two centuries. It replaced the previous sources, largely eliminating their shortcomings.

Thus, new hierarchies and institutions appeared in the institute of compensation for moral damage, which could defend their honor in court. For example, previously unnamed priests were added to the hierarchy. The secular ranks were grouped into larger groups and separated from the clergy. The insult could be expressed in various forms: simple abuse, incorrect designation of the patronymic and surname, the name "low-born", a diminutive title, the name of the man "zhonka" and so on. Insulting a woman was recognized as the most serious type of crimes against honor. Thus, a double fine was levied for insulting a wife, and a quadruple fine was levied for insulting an unmarried daughter (while only half of the fine was paid for insulting a minor son)^[13].

It was in the Code that corporal punishment and imprisonment were first introduced along with monetary fines. The severity of the punishment depended on the gap between the social status of the offender and the offended^[14]. So, if a boyar insulted the patriarch, then a humiliating procedure was carried out against him, consisting in public vilification by the elite - "giving out by the head." In the case when the offender was an employee of a lower rank, punishment with a whip was used, and if the offender was even lower in rank, he was subject to public corporal punishment and imprisonment for a month.

Of course, at that time it was the highest officials and clerics who could count on the greatest protection from "moral harm", but this does not mean that other categories of the population did not have access to mechanisms of protection from dishonor. Undoubtedly, the Cathedral Code did not take into account the principle of equality of citizens before the law and the court, but at all times insults against the political elite entailed more serious penalties, since it seems that the insult is perceived not by the person himself, but by an abstract power subject, whose authority should be maintained, if not at the expense of respect, then at the expense of the monopoly of law on the use of violence.

Due to the beginning of the period of absolutism in Russia, its legal system has also changed. The process of active systematization of normative legal acts has begun, the global result of which is the Code of Laws of the Russian Empire, published in the 1830s. It regulated all the existing acts, resolved the contradictions between them. Civil law was systematized in volume X, with a large place in it occupied by the law of obligations. At that time, there were two types of obligations: from the contract and from causing harm. It is noteworthy that the latter could arise solely from culpable harm, in contrast to the current approach of the legislator (for example, the owner of a source of increased danger is responsible for the harm caused by this source, regardless of the fault)^[15].

The institution of compensation for moral damage received its further development in the Law of the Russian Empire of March 21, 1851^[16]. It fixed specific cases in which the victim could count on the protection of his non-property rights, and established the limits of permissible recovery, but there were no criteria to determine the exact amount. For example, for offense or insult, a fine in the amount of 1 to 50 rubles was imposed from the perpetrator in favor of the victim. Compensation for damage caused by an unlawful sentence was also provided for: an illegally convicted citizen was to be paid not only the amount of actual material damage, but also a strictly defined amount of money in the law - compensation.

It is important to note that for causing harm to health, no compensation was provided for the suffering suffered by the victim - neither physical nor moral. Articles 644 and 684 of the Law of March 21, 1851 indicated the possibility of compensation for harm and losses caused by criminal and non-criminal acts, respectively, but did not explain what kind of harm was mentioned in these articles - property or non-property ^[17]. Therefore, it was difficult for the victim to prove that he was entitled to compensation for non-property damage.

This problem caused heated discussions among jurists of that time. Thus, many theorists, in particular G.F. Shershenevich, believed that resentment as an act that damages the honor and dignity of an individual cannot be compensated in any way, since non-property values are not subject to monetary valuation. It was assumed that the dignity of an honest person should be defended in a duel, and not used in any way to extract material benefits ^[18]. Socially acceptable was recognized only the possibility of collecting compensation if moral damage indirectly affected the property interests of the victim.

Shershenevich also believed that with the introduction of the institution of compensation for moral harm in the legislation of Russia, the morality of the population will fall: less well-off citizens will have hope for easy profit by collecting compensation from the rich for any act that is at least in the slightest degree capable of offending the dignity of the individual.

A different opinion was expressed by S.A. Belyatkin, who fully supported the introduction of this institute. Moreover, he believed that Russian legislation does not prohibit compensating not only property, but also non-property damage, and therefore it is necessary to build appropriate practice by precedent: "Even if the legislator did not seriously think about non-material harm, but focused mainly on property damage in view of most cases of such damage, but since the law did not express a categorical command on this subject, it at least unleashed the hand of practice and, without filling out the entire content of the concept, left room for the adaptation of the law to the needs of life^[19]".

The experience of foreign countries was also cited as an argument for the introduction of the institute of compensation for moral damage. In particular, it was the German Code of 1896 that was used as a model when drafting a new Civil Code of 1905.

Thus, in accordance with section 847 of the German Code, in case of bodily injury, injury to health, deprivation of liberty or violation of women's honor, a civil court may award some "fair remuneration" for non-material harm. Also, according to section 343 of the German Code, although the court is granted the right to reduce the penalty specified in the contract, if it seems excessive, the court must also take into account the non-material interests of the one who reprimanded this penalty.

It should be noted that the German criminal law for the commission of certain crimes (libel, copyright infringement, etc.) gave the court the right, in addition to criminal punishment, to impose an additional private fine in favor of the victim^[20].

Thus, when borrowing many provisions of German legislation, norms providing for compensation for non-property damage caused by certain torts appeared in the draft Civil Code of the Russian Empire. Article 1201 stated: "In cases of disfigurement or other bodily injury, as well as in the case of deprivation of liberty, the court may assign a sum of money to the victim at its fair discretion, taking into account whether malice and other circumstances of the case were detected on the part of the perpetrator, even if the victim did not suffer any losses (moral harm)".

In the draft of the Code there were also norms regulating the penalty. Thus, according to article 70, the judge, when reducing the contractual penalty, is obliged to "take into consideration not only the property, but also other just interests of the believer."

Moreover, a novel appeared in article 130 of the Code: "The verifier must be compensated for losses that directly result from the debtor's failure to fulfill the obligation and which could have been foreseen at the conclusion of the contract. A debtor who has intentionally or grossly negligently failed to fulfill obligations may be awarded compensation for losses other than those mentioned above, even if they were not property, but moral harm and were not subject to an accurate assessment"^[21].

However, despite the extensive work carried out by the drafters of the Code, this project has not entered into force. The revolution of 1905, the unstable state of society, as well as the subsequent World War I and the Revolution determined the fate of the Code.

The post-revolutionary Soviet doctrine rejected the idea of compensation for non-property damage in general, there was no possibility of such a claim in the legislation. However, after the entry into force of the Civil Code of the RSFSR in 1922, discussions about the significance of this institution revived.

Some lawyers perceived this institution as class alien to the socialist legal consciousness, since no moral experiences can be evaluated in monetary terms ^[22]. Others, on the contrary, interpreted in Article 403 of the Civil Code of the RSFSR of 1922 saw the opposition of property damage and damage caused to the individual ^[23]. No regulatory legal act clarified what exactly should be understood by the term "personality", and supporters of compensation for moral harm were sure that this was not only the physical health of a person, but also his spiritual component. Hence, the harm to her should also be compensated.

And yet these discussions did not have an impact on the law enforcement of that time, remaining at the level of scientific disputes. All civil claims for compensation, occasionally still filed in the courts, were not subject to satisfaction.

The next step in the development of this institute in Soviet times was the adoption of the Civil Code of the RSFSR in 1964. Article 1 stated that the subject of regulation is property and related non-property relations, which obviously indicated the need to introduce special mechanisms for the protection of non-property goods, taking into account their specifics ^[24].

Interestingly, the criminal procedure legislation was the first to attempt to introduce the category of moral harm into the legal system of the USSR. Thus, article 53 of the Code of Criminal Procedure of the RSFSR of 1960 stipulated that a person who has suffered moral, physical or property damage by a crime is recognized as a victim. It was here that this concept was first used.

And yet it was only in the 1990s that the right to compensation for moral damage was enshrined in law. Thus, article 39 of the USSR Law "On the Press and Mass Media" of June 12, 1990 allowed compensating for moral damage caused as a result of the dissemination by the mass media of untrue information that discredits the honor and dignity of a citizen or causes him other non-material damage.

In article 131 of the Fundamentals of Civil Legislation of the USSR and the Republics of May 31, 1991, it was clarified that moral harm is physical or moral suffering. At the same time, compensation was possible in case of encroachments on both intangible benefits and property rights of a citizen.

Comparing these provisions with the norms of Article 151 of the Civil Code of the Russian Federation, it should be said that, firstly, its literal interpretation often leads to incorrect application. Only the possibility of compensation for encroachment on non-property rights or benefits of a citizen is clearly stipulated, and the property rights of citizens are not directly mentioned. Of course, the Plenum of the Supreme Court of the Russian Federation specified what exactly should be understood by moral harm, indicating that it can also be caused by a violation of a citizen's property rights, but in practice this provision is not always ignored.

In connection with this problem, the Constitutional Court of the Russian Federation, having considered the case on the complaint of citizen S.F. Shilovsky, recognized Part 1 of Article 151 of the Civil Code of the Russian Federation as inconsistent with the Constitution of the Russian Federation, to the extent that it is in the meaning given to it by judicial interpretation (including in connection with paragraph 2 of Article 1099 of the Civil Code of the Russian Federation), - serves as a basis for refusing compensation for moral damage caused to a citizen by a crime against property committed against him, by virtue of the mere fact of qualifying this act as encroaching on the property rights of the victim, without establishing on the basis of a study of the factual circumstances of the case whether physical or moral suffering was caused to the victim from the said crime as a result of violation of his personal non - property rights or encroachments on intangible benefits belonging to him .

Secondly, compensation for moral damage according to the Fundamentals of the Civil Legislation of 1991 was possible only in case of culpable harm, while the modern Article 1100 of the Civil Code of the Russian Federation provides for cases in which compensation is carried out regardless of guilt (for example, by the owner of a source of increased danger).

Thirdly, if before the adoption of the Civil Code of the Russian Federation compensation could be carried out both in monetary and in other material form, now the legislator provides only the possibility of monetary compensation. Some lawyers disagree with this interpretation of paragraph 1 of Article 1101 of the Civil Code of the Russian Federation, as they believe that the victim has the right to conclude an agreement with the causer of harm on compensation for moral damage in kind, that is, certain goods and services. For example, a person who has lost an arm as a result of a traffic accident may prefer to receive a high-quality prosthesis, rather than monetary compensation. It seems that this approach meets the principles of justice and humanity.

Finally, at the moment, the legislation of the Russian Federation, as before throughout the history of the development of the institution of compensation for moral damage, does not establish clear criteria for determining the amount of compensation. The legislation states that the court should be guided by the requirements of reasonableness and fairness, therefore, judges make decisions within the scope of the discretion granted to them by law, and therefore, strikingly different amounts are often collected in similar cases, the size of which is difficult to challenge. There are no minimum and maximum limits on the amount of compensation for moral damage. There are no fixed formulas by which the amount of compensation could be calculated. The guidelines proposed by paragraph 2 of Article 1101 of the Civil Code of the Russian Federation for determining the amount of compensation do not allow for uniform consideration of cases of compensation for moral damage by courts. So, in similar cases, different judges calculate different amounts of compensation. As an example, the cases considered in the Frunzensky District Court of St. Petersburg case No. 2-1719/2020 and in the Dzerzhinsky District Court of St. Petersburg case No. 2-1210/2020 should be cited.

So, having considered the metamorphoses that have occurred with the institute of legal regulation for more than ten centuries, we can propose the following system of periodization of the stages of development: pre-revolutionary, Soviet and modern. The pre-revolutionary stage seems to be the longest, since it includes the period from the tenth century to the early twenties of the twentieth century. At this stage, the ratio of legal measures of compensation for moral harm, as a result of insulting or harm to health, with the provisions of the talion principle is changing, the possibility of collecting compensation from the harm-doer in the same form as the harm was caused, for example, causing physical suffering, death, is gradually receding.

The second stage is Soviet, covering the period from 1922-1991. Compensation for moral damage provided for by law is not often found in actual use. Citizens cannot fully exercise their rights to protect non-property rights. The provisions of the talion principle are not regulated at this stage. An exception may be only some elements of criminal offenses and other offenses, for example, for false denunciation, which served as the basis for the appointment of a real term of imprisonment, the applicant of this denunciation was also sentenced to imprisonment for a long time.

At the present stage – 1991-2022, the institution of compensation for moral damage is becoming increasingly important. Citizens, due to a decrease in the level of legal nihilism, more actively protect their violated rights. Judicial practice clearly demonstrates that claims in cases of compensation for moral damage are satisfied by the courts. The legal positions of the Talion principle at this stage have not changed in comparison with the Soviet stage. An example that clearly illustrates this is the definition of the judicial board for civil Cases of the Supreme Court of the Russian Federation dated 21.06.2022 N 15-KG22-1-K1, which states that Article 151 of the Civil Code of the Russian Federation does not establish any exhaustive list of intangible benefits and the ways in which they can be violated, as well as the fact that there is no there are no restrictions on actions that can be considered as a basis for such compensation.

The Constitutional Court of the Russian Federation adheres to the same position set out in Resolutions No. 45-P of October 26, 2021, No. 14-P of June 8, 2015 and Ruling No. 2506-O of October 27, 2015. Thus, the current mechanism of legal regulation does not imply an unconditional refusal to compensate for moral harm to a person to whom physical or moral suffering was caused as a result of a crime, by virtue of the mere fact of qualifying this act as encroaching on property rights. The resolution of the Plenum of the Supreme Court of the Russian Federation dated October 13, 2020 No. 23 "On the practice of consideration by courts of a civil claim in a criminal case" clarifies that, as a general rule, a civil claim for compensation for moral damage can be brought in a criminal case in cases where such harm is caused to the victim by criminal actions violating his personal non-property rights. rights (for example, the right to inviolability of the home, private life, personal and family secrets, copyright and related rights) or encroaching on intangible benefits belonging to him (life, health, dignity of the individual, etc.). Thus, the institution of compensation for moral damage has undergone significant changes since the X century and, having survived to our time, continues to act an actual regulator of legal relations in society.