How to prove damages due to harm. Collection and compensation of actual damages Fact of damage

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1. 9. Cases for compensation for losses incurred

Article 12 of the Civil Code of the Russian Federation, as one of the ways to protect civil rights, provides for the possibility of the injured party to demand compensation for losses from the faulty party. This method is rightly recognized as a “universal method of protection”, since it can be used in almost any material and legal relationship that requires protection, including by the judiciary. Due to the principle of discretion, which is also emphasized by judicial practice, the choice of method of defense belongs to the plaintiff. When approaching the court with demands for compensation for losses, the plaintiff must take into account both the features of the legal phenomenon of losses itself, and the features of their proof in civil proceedings.

Enshrining in the law the concept of losses through assessment categories (Article 15 393 of the Civil Code of the Russian Federation), on the one hand, gives this legal phenomenon the property of “necessity of proof”, from which it follows that it is impossible to talk about the presence of losses to a person that have not been proven in compliance requirements of the norms of procedural law, since otherwise the losses incurred do not acquire legal (legal) significance, that is, they are not subject to recovery from the guilty party. When considering this category of cases, the court must be guided by the current procedural legislation, which requires the injured party to provide evidence of its incurring property losses, the “reasonableness” of the method established for calculating losses, as well as the amount of losses itself.

On the other hand, assessment categories and the adversarial principle tighten the requirements not only for the recovery of damages declared by a person (they require a more professional attitude due to the peculiarities of this legal category), but also for the evidence presented to them (correct definition of the subject of proof, compliance with the requirements of relevance, admissibility, reliability , sufficiency of evidence, etc.).

Finally, they allow the injured party to use all the procedural “tools” to confirm their violated right, since the legislator objectively cannot provide for any strictly defined consequences for each case of violation of a subjective right, and therefore, predetermine the amount of property losses (damages).

The subject of proof in any case for compensation for damages must be determined as the totality of the following facts to be established in court:

1) the basis for the occurrence of liability in the form of compensation for losses (violation of contractual obligations, tort or action of a government body, other violation of rights and legitimate interests that resulted in damages). An indication of the fact of unlawful behavior as a basis for liability is contained in the general part of the Civil Code of the Russian Federation (Article 15), but the disclosure of its signs is in other sections of the Civil Code of the Russian Federation. Yes, Art. 1064 of the Civil Code of the Russian Federation indicates a tort as the unlawful behavior of a person who caused harm and who was not in a contractual relationship with the injured person. Failure to fulfill or improper fulfillment of an obligation is established by Art. Art. 393–395 Civil Code of the Russian Federation. The actions (inaction) of state bodies, local self-government bodies or officials of these bodies are indicated by Art. 53 Constitution of the Russian Federation, Art. Art. 16 1069 and 1071 of the Civil Code of the Russian Federation.

When establishing this basis, it is necessary to take into account that compensation for losses from actions (inaction) of state bodies, local self-government bodies or officials of these bodies is possible only if the specified action (inaction) violates the rights and legitimate interests of the applicant directly. Thus, the necessary evidence in this category of cases will always be the fact of violation of the rights and legitimate interests of the person incurring losses and filing a claim (plaintiff), as a result of the actions (inaction) of the above bodies and officials.

A feature of compensation for damages in contractual legal relations will be the inclusion in the subject of proof as mandatory not only of the fact of illegal behavior (violation of the contract), but also of the fact of the existence of the contractual relations themselves, i.e. the fact of the conclusion of an agreement between the parties.

Losses can arise not only from contractual or tortious relations, but also from lawful actions of the court that meet the requirements of the law, i.e. in the administration of justice. This is possible only in cases expressly specified in the law. For example, the occurrence of losses may be associated with measures to secure a claim imposed by the court on one of the parties to the case (usually the defendant). The Civil Procedure Code (Article 146) provides for the possibility of compensating the defendant for losses caused by securing the claim: “The defendant, after the decision by which the claim is rejected has entered into legal force, has the right to bring a claim against the plaintiff for compensation for losses caused to him by measures to secure the claim, taken at the request of the plaintiff "

In addition to the above grounds for compensation of losses established by the Civil Code of the Russian Federation, from the meaning of paragraph 1 of Art. 8 and paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a fourth basis can be derived, which is defined as another (any) violation of a person’s civil rights, resulting in losses for him (in their legal sense);

2) a causal connection between the fact that served as the basis for liability in the form of compensation for damages and the losses caused. Failure by the court to establish the fact of causation leads to a refusal to satisfy the plaintiff’s claims for damages, even if all other facts included in the subject of proof are proven. If the victim had a choice of action, the opportunity to act differently than he did, and, thus, making his choice, he showed freedom in his actions, then this circumstance can be interpreted by the court as the absence of a direct causal connection;

3) the amount of damages (real and lost profits), taking into account the terms of the contract and regulations, some of which establish restrictions on the simultaneous recovery of damages with other forms of liability, as well as in relation to certain categories of cases.

The amount of damages is determined not from the nature of the violated right, the nature of the action that violates the legal rights and interests of the injured person, but only from the nature of the consequences of the unlawful act. Whatever the act that caused the loss, we are only interested in the consequences themselves, which must meet the criteria for losses established in legislation and confirmed by judicial practice. The same violation can cause very different consequences, just as different violations can cause the same consequence. If the injured party suffers damage (losses) of several types, then the damage (losses) of each type is calculated separately, and the results obtained are summed up.

The court must establish the fact of the existence of losses, manifested through their size, the concept of which is disclosed in Art. 15 Civil Code of the Russian Federation. Losses may consist of actual damage (expenses incurred or expenses that will need to be incurred; loss or damage to property) and lost profits (lost income; income received by the counterparty who violated the right). When recovering damages in the form of actual damage, it is much easier to justify its size than when recovering lost profits, since the proof in this case is in the nature of searching for an equivalent or establishing the equivalence of the actual damage and the evidence presented to the court. Ultimately, the equivalent is cash.

In case of loss of property, the equivalent of the lost property is presented, determined taking into account its real (market) value at the time of loss. That is, the court must present property similar (equal) to the lost one, or its monetary equivalent. This does not mean the actual presentation of property similar to the lost one into the courtroom, but the presentation of evidence confirming their equivalence.

In case of property damage, two issues are resolved. Is it possible to use this property for its intended purpose, that is, has the thing lost not only its exchange value, but also its use value? For example, if a burnt cathode ray tube, an exposed batch of photographic film, or a filter with lost chemical activity become unusable and their further use is impossible, then the amount of damage is determined as in the case of loss of this property.

And if further use of the property is possible, then the amount of damage will be the difference in the depreciation of its value, i.e. it is necessary to establish the amount of expenses necessary to restore the property (repair it) to the state before the damage. If property is damaged, proving losses will thus come down to either justifying the costs incurred to restore the property, or justifying the costs that the injured party will have to make to restore the property.

The second part of the Civil Code of the Russian Federation provides for a limitation on the principle of full compensation for losses, and, consequently, their amount for certain obligations and types of contracts. Moreover, the limitation manifests itself in different forms. Under the energy supply agreement (and other supply agreements through the connected network), only actual damage is subject to compensation. Under a contract for the performance of scientific, research, development and technological work, lost profits are compensated only in cases stipulated by the contract. Losses caused to the customer in connection with poor quality work are compensated within the limits of the cost of these works, unless the contract stipulates that they are subject to compensation within the limits of the total cost of work under the contract (Article 777 of the Civil Code of the Russian Federation);

4) guilt (taking into account its features in civil law). It is necessary to take into account the “presumption of guilt” in relation to persons engaged in business activities in cases expressly provided for by law (causing harm by a source of increased danger, etc.). In addition, the basis for compensation for losses will be only culpable failure or improper fulfillment of obligations by the manufacturer of agricultural products (Article 538 of the Civil Code of the Russian Federation);

5) measures to prevent or reduce the amount of losses incurred. This fact is derived from the concept of losses as expenses, which must not only be direct and reliable, but also necessary. Unfortunately, these signs have not found their normative support, so they have to be derived from the existing scientific doctrine of civil law and current judicial practice. Thus, the plaintiff will have to prove not only the reality of the measures taken, but also their focus on preventing or reducing the amount of losses he has suffered;

6) measures taken to obtain lost profits and preparations made for this purpose. The mandatory inclusion of the fact under investigation in the subject of proof in relation to compensation for lost profits in contractual legal relations is established in clause 4 of Art. 393 of the Civil Code of the Russian Federation (when determining lost profits, the measures taken by the plaintiff to obtain it and the preparations made for this purpose are taken into account). In other legal relations, the obligation is determined by the internal content of the legal phenomenon of losses itself.

The distribution of responsibilities for proof in cases of compensation for damages remains traditional for the process, established in Roman law. Article 56 of the Code of Civil Procedure establishes that each party must prove the circumstances to which it refers as the basis for its claims and objections. The plaintiff, therefore, must prove all the facts included in the subject of proof, with the exception of guilt, the defendant - the absence of guilt and other circumstances to which he refers.

An interesting question is whether a person should be recognized as having the right to compensation for losses if he fulfills the requirements of the law related to making various fees and other payments that were subsequently declared illegal by a court decision that entered into legal force. The question is the following: is it sufficient for a person to recognize his right to compensation for essentially illegal payments to provide evidence of such payments (the fact of transfers of funds in accordance with the requirements of a regulatory act that was subsequently declared illegal) or does he need to prove that losses were caused to him by the document issued and subsequently recognized as illegal by a normative act in the general manner, i.e. bear the obligation to prove losses? The second question can be answered positively, which is confirmed by existing judicial practice. A person who has suffered losses from an illegally issued act bears the obligation to prove losses in the general manner, unless a different procedure is established by the legislation itself. This follows from the essence of damages, the amount of which is determined based on the consequences of the unlawful action, and not the action itself.

To summarize, the plaintiff in any damages case must prove the following facts:

The basis for liability in the form of compensation for losses (violation of contractual obligations, tort or action of a government body, other violation of rights and legitimate interests resulting in damages);

The causal connection between the fact that served as the basis for liability in the form of compensation for damages and the losses caused;

Amount of losses (real and lost profits);

Measures taken to obtain lost profits and preparations made for this purpose.

The defendant, based on his position in the case, can prove:

The amount of losses (real and lost profits), and the validity of calculating the amount of losses should be especially emphasized;

Failure by the plaintiff to take measures to prevent or reduce the amount of losses incurred;

No guilt;

Impossibility of fulfilling the obligations assigned to him due to force majeure circumstances, etc.

Required evidence. Due to the fact that losses are defined in the current legislation through assessment categories, and also that the use of the institution of compensation for losses is possible in almost any material legal relationship, objective difficulty arises in determining the necessary evidence in relation to this category of disputes. Here we can only talk about some recommendations.

Russian legislation regarding damages does not establish any direct guidelines that would determine the “necessary” evidence. Therefore, when determining the necessary evidence, the party must proceed from the facts to be established in cases of compensation for losses, i.e., the subject of proof.

The following can be identified as necessary evidence in cases of compensation for losses:

1) documents confirming the existence of contractual relations:

Agreement, tag, check, etc.;

2) documents confirming the illegality of the behavior of the harm-doer:

Act of the relevant government body;

A court decision declaring the decision of the relevant body illegal;

3) documents confirming the basis for liability in the form of compensation for losses:

An act of an authority, the legality of which is not disputed, but the act itself, in accordance with the law, can serve as the basis for compensation for losses, and other documents;

4) reasonable calculation of the amount of losses. Real damage, as a rule, “lies on the surface”, i.e. evidence of it is already contained in the actions of the plaintiff or defendant, associated with previous activities, which are recorded in writing (agreements, correspondence, invoices, etc.), therefore, submitting the originals of such documents to the court (naturally, in accordance with the requirements of the law) or indicating their existence does not present much difficulty for the party in the case:

Certificate of value of lost property;

Certificate of value of an analogue of the lost property;

Expert opinion on the value of damaged property, etc.

When proving damages in the form of lost profits, it is most often difficult to substantiate the causal connection between the actions of the defendant and the plaintiff’s incurring losses. But even a “procedural” solution to this problem does not provide the plaintiff with a positive court decision. Due to the requirements of the procedural law, the plaintiff must justify his chosen methodology for calculating damages in the form of lost profits and each figure in the calculations (provide material evidence for the given figures, which the plaintiff may not have due to their location with the defendant, due to loss, etc.). etc.), which in practice causes great difficulty. Sometimes the volume of evidence presented by the plaintiff may require an audit.

The joint Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Court of the Russian Federation dated July 1, 1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” notes that “real damage includes not only actual expenses incurred by the relevant person, but also expenses that this person will have to make to restore the violated right (Clause 2 of Article 15 of the Civil Code of the Russian Federation). The need for such expenses and their estimated size must be confirmed by a reasonable calculation, evidence, which can be presented as: an estimate (calculation) of the costs of eliminating deficiencies in goods, works, services; an agreement defining the amount of liability for violation of obligations, etc.

The amount of lost income (lost profits) must be determined taking into account the reasonable costs that the creditor should have incurred if the obligation had been fulfilled. In particular, upon a claim for compensation for losses in the form of lost income caused by short-delivery of raw materials or components, the amount of such income should be determined based on the sales price of finished goods stipulated in contracts with buyers of these goods, minus the cost of short-delivered raw materials or components, transport? procurement costs and other costs associated with the production of finished goods”;

5) documents confirming the actions taken by the injured party to prevent or reduce the amount of losses incurred:

“New” agreements concluded with new suppliers, sellers, buyers aimed at preventing losses, loan agreements, etc.;

Agreements for the repair of damaged property, etc.;

6) other documents confirming claims for compensation of losses.

IN THE NAME OF THE RUSSIAN FEDERATION

SOLUTION

Case No. A40-219178/15-150-1908
Moscow
April 29, 2016
The operative part of the decision was announced on April 22, 2016

Arbitration court composed of judge S.V. Maslov,

when maintaining the minutes by the secretary of the village Seinaroeva M.I. having considered in court the case on the claim of FSUE "FT-Center" against IP Fomin S.V. (OGRNIP 309774612401476)

about the recovery of 2,854,676 rubles. 67 kop.,

with the participation of representatives of the plaintiff and defendant according to the protocol,

INSTALLED:

The claim was filed for the recovery of RUB 2,854,676. 67 kopecks losses.

The plaintiff appeared at the court hearing and supported the claims in full.

The defendant appeared at the court hearing, the case materials contain evidence of proper notification, and therefore the case is being considered in his absence.

Having examined the materials, examined and assessed according to the rules of Art. Arbitration Procedural Code of the Russian Federation, the evidence presented, the court came to the following conclusion.

The amount of damages to be compensated must be established with a reasonable degree of certainty. Within the meaning of paragraph 1 of the article, a claim for compensation for damages cannot be refused only on the grounds that their exact amount cannot be determined. In this case, the amount of damages to be compensated is determined by the court, taking into account all the circumstances of the case, based on the principles of fairness and proportionality of liability to the violation committed.

Lack of guilt is proven by the person who violated the obligation (clause 2 of article). As a general rule, the person who caused the harm is exempt from compensation for harm if he proves that the harm was not caused through his fault (clause 2 of Article). The burden of proving his innocence lies with the person who violated the obligation or caused the harm. Guilt for breach of obligation or causing harm is presumed until proven otherwise.

If a person is liable for a violation of an obligation or for causing harm regardless of guilt, then the burden of proof is placed on him to prove the circumstances that are the basis for exemption from such liability (for example, paragraph 3 of the article, paragraph 1 of the article).

Thus, like any form of civil liability, damages are the result of a wrong and occur only when the debtor's conduct is unlawful. At the same time, only a direct (immediate) causal connection between the debtor’s unlawful behavior and the creditor’s losses has legal significance. Direct (immediate) causation occurs when in the chain of successively developing events between the unlawful behavior of a person and losses there are no circumstances relevant to civil liability. That is, in order to recover damages, the person whose right has been violated, demanding compensation, must prove the fact of the violation of the circumstances, the existence of a causal connection between the violations and the resulting losses in the amount of damages.

As follows from the case materials and established by the court, the hangar located at the address: Moscow, Zelenograd, st. Radio, 3, building 7, is under the economic control of the plaintiff and, on the basis of a lease agreement for non-residential premises dated 07/01/2012 No. 1/07/12 (hereinafter referred to as the agreement), was leased to the individual entrepreneur S.V. Fomin.

On February 19, 2015, a fire occurred in the hangar. The fact of the fire is confirmed by the Decree of the Directorate of the ZAO Main Directorate of the Ministry of Emergency Situations of Russia for Moscow dated March 20, 2015 No. 12/2015.

In order to carry out a fire-technical investigation of a fire in a hangar, the Enterprise turned to a specialized organization - ROO "TsSV GU EMERCOM of Russia for Moscow."

However, the court does not establish a cause-and-effect relationship between the defendant’s behavior and the plaintiff’s losses due to the following.

In accordance with the Resolution submitted to the case materials by the Plaintiff on the refusal to initiate a criminal case No. 12/2015 dated January 21, 2016, OAPD and GS OND of the Directorate for the Zelenograd Autonomous District of the Main Directorate of the Ministry of Emergency Situations of Russia for the city of Moscow, upon the fact of the fire, the department of the Main Directorate of the Ministry of Emergency Situations of Russia carried out an inspection, as a result of which it was established that the most likely cause of the fire was the thermal effect of an emergency fire hazardous operating mode that arose in the electrical circuit of the GAZ 2824 RA G.R.Z. V973UA 77 Rus., the occurrence of which is not related to anyone’s intervention, careless action or inaction.

Thus, there is no direct cause-and-effect relationship between someone’s actions (inaction) and the occurrence of a fire.

In view of the above, on the basis of Art. Art. ,

Article No. 15 of the Civil Code of the Russian Federation states that every citizen of Russia or another state, as well as any legal entity, has the right to receive monetary compensation for material damage caused.

The concept of “damage” combines two components:

real loss - loss or partial damage to personal property; lost profit - lack of opportunity to earn income due to the fault of the defendant.

The amount of compensation can be full or partial. This depends on a number of factors.

Thus, partial compensation for losses occurs if the damage was caused by minors or incompetent persons. Another case of partial monetary payment is the presence of an insurance policy in favor of the injured person.

What is the procedure for compensation for material damage?

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

The rules and procedure for paying compensation are established by the legislation of the Russian Federation.

Compensation for the damage caused is possible both by mutual agreement and by filing a claim 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 in the magistrate's court; if the value of the claim is more than 50,000 rubles - in the district court.

Procedure before submitting an application on compensation for material damage:

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

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

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

The next step is to file a claim., which will become the basis for consideration of the case regarding the assignment of payment of compensation.

The application is sent to a court of general jurisdiction if the victim is an individual, and to an arbitration court when resolving corporate disputes between legal entities or entrepreneurs.

General procedure for compensation of losses

If relations regulated by an agreement were established between the parties involved in causing property damage, then the payment of damages should occur based on certain clauses of the relevant agreement.

Read here what an employment contract is and what is its main difference from an employment contract.

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

Compensation for losses by the employee occurs after discovery of the damage caused. The employer must conduct an inspection to determine the circumstances of the employee’s involvement in the fact of causing damage.

Order compensation provides for the possibility of voluntary repayment of losses in a lump sum or in installments.

If the employee refuses to voluntarily pay compensation, the employer has the right to pursue recovery through judicial proceedings. The limitation period in this case is 1 year from the date of discovery of the damage.

It happens that material damage is caused to an employee by the employer. In this case, the employer is fully responsible for compensating for material damage to the employee. If the deadline for payment of monetary rewards (salaries, bonuses, etc.) is violated, the amount is calculated taking into account interest for the period of delay.

Compensation for claims within the framework of non-contractual relations is regulated either by agreement of the parties or in court.

A court decision can be made only on the basis of a filed claim by the victim. The claim is sent to the court by mail or delivered independently to the court reception.

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

How to write an application correctly?

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

The application must be made in writing and meet the requirements specified in Article 131 of the Civil Code of the Russian Federation.

The application must include the following information:

official name of the court to which the document is submitted; last name, first name, patronymic of the plaintiff (in full), residential address. If the applicant carries out all actions through a proxy, then all the details of the intermediary must be indicated; all personal information about the defendant, if this is an individual. Location of the organization, if the claims are presented to a legal entity; description of the nature of the damage caused, the exact date, place and circumstances that led to the material damage; evidence of the circumstances on the basis of which, in the plaintiff’s opinion, the loss was caused; amount of compensation for material damage; description of actions the applicant on attempts to resolve the conflict out of court; a 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 payment of the state duty; documents evidencing the loss; calculations for compensation for material damage (original and copies according to the number of defendants); power of attorney to represent the interests of the plaintiff in the event that the plaintiff does not represent your claim in person.

The procedure for calculating and determining the amount of material losses

The most common types of damage caused:

flooding of living space; road accident; fire in an apartment (house); poor quality of work (services); lack of alimony payments and urgent payments.

Calculation of damage caused depends depending on the specific circumstances and claims put forward by the plaintiff:

the cost of a claim to recover the amount of money borrowed is this amount plus additional charges (interest, penalties, etc.), if this was specified in the loan agreement; when assessing damage caused to real estate, a certificate of inventory value is required object. Compensation is calculated based on this amount; when determining the price of the claim for payments (alimony, urgent payments, etc.), material damage is calculated individually. When collecting alimony, damages are calculated for 1 year. For urgent payments - for the totality of expected payments, but not more than for 3 years.

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

Refund terms

The statute of limitations 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 when harm is caused to human life and health.

In the event of pre-trial settlement of material conflicts between an employee and an employer, the timing of payment of compensation is agreed upon by mutual consent of both parties.

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

If there is a judicial resolution of the conflict regarding compensation for damage caused, then the timing of payments will be determined in the court decision. Monitoring its implementation is carried out by bailiffs.

Features of compensation for damage caused by crime

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

The statute of limitations begins not from the moment the crime was committed, but from the moment the damage was discovered by the victims, and lasts 3 years.

The person guilty of committing a crime and causing damage pays compensation from his earnings for the time he is in prison or colony.

The amount to be paid, but not yet paid, is indexed depending on changes in the cost of living in the country.

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

This time we will dwell in more detail on compensation for real damage.

1. What is real damage and how does it occur.

In short, then real damage is one of the types of losses, along with lost profits.

Based on paragraph 2 of Article 15 of the Civil Code of the Russian Federation, real damage is the expenses that a person whose right has been violated has made or will have to make to restore the violated right, as well as loss or damage to the person’s property.

In accordance with Article 393 of the Civil Code of the Russian Federation, the Debtor is obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of the obligation.

In this case (clause 2 of Article 307 of the Civil Code of the Russian Federation), obligations arise from the contract, as a result of causing harm and from other grounds specified in the Civil Code of the Russian Federation. As other grounds, Article 8 of the Civil Code of the Russian Federation (“Grounds for the emergence of civil rights and obligations”) specifies: decisions of meetings, acts of state bodies and local governments, which are provided by law as the basis for the emergence of civil rights and obligations; events with which the law or other legal act connects the onset of civil consequences, etc.

2. What and how to prove when collecting real damage.

When filing a claim for compensation for actual damage, the plaintiff will be faced with the need to prove:

a) illegality of the actions (inaction) of the defendant,

b) the fact of causing damage and its size,

c) a cause-and-effect relationship between the actions (inaction) of the defendant and the resulting damage.

The type and amount of evidence that the plaintiff needs to collect will depend on what the damage was caused - property was damaged or lost, any payments were made, etc.

According to paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, When resolving disputes related to compensation for losses caused citizens and legal entities with a violation of their rights, it is necessary to keep in mind that the actual damage includes not only the expenses actually incurred by the relevant person, but also the expenses that this person will have to make to restore the violated right (clause 2 of Article 15 of the Civil Code).

The need for such expenses and their estimated amount must be confirmed by a reasonable calculation, evidence, which can be an estimate (calculation) of the costs of eliminating deficiencies in goods, works, services; an agreement defining the amount of liability for violation of obligations, etc.

When proving the fact and amount of damage, one should also take into account the provisions of paragraph 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation ", according to which "When considering cases related to compensation for losses caused by non-fulfillment or improper fulfillment of obligations, it is necessary to take into account that, in accordance with Article 15, both losses incurred at the time of filing the claim and expenses that the party will have to pay are subject to compensation incur to restore the violated right.

Therefore, if a violated right can be restored in kind by purchasing certain things (goods) or performing work (providing services), the cost of the corresponding things (goods), work or services must be determined according to the rules of paragraph 3 of Article 393 of the Code and in cases where at the time of filing a claim or making a decision, the actual costs have not yet been incurred by the creditor.”

Let us remind you that according to clause 3 of Art. 393 of the Civil Code of the Russian Federation, unless otherwise provided by law, other legal acts or contract, when determining damages, the prices that existed in the place where the obligation should have been fulfilled are taken into account on the day the debtor voluntarily satisfied the creditor’s claim, and if the demand was voluntarily satisfied not was - on the day the claim was filed. Based on the circumstances, the court may satisfy the claim for damages, taking into account the prices existing on the day of the decision.

3. What must be taken into account when collecting actual damages?

A person whose rights have been violated may demand full compensation for the losses caused to him,unless the law or contract provides for compensation for damages in a smaller amount(Clause 1 of Article 15 of the Civil Code of the Russian Federation).This provision should be considered in conjunction with the provisions of Article 400 of the Civil Code of the Russian Federation (“Limitation of the amount of liability for obligations”): 1. For certain types of obligations and for obligations associated with a certain type of activity, the law may limit the right to full compensation for losses(limited liability). 2. An agreement to limit the amount of liability of the debtor under an adhesion agreement or another agreement in which the creditor is a citizen acting as a consumer is void, if the amount of liability for a given type of obligation or for a given violation is determined by law and if the agreement was concluded before the occurrence of circumstances entailing liability for non-fulfillment or improper fulfillment of the obligation.

Examples of legal restrictions on the amount of liability of a debtor:

a) The heir (legal successor) of a participant in a general partnership is liable for the obligations of the partnership to third parties, for which, in accordance with paragraph 2 of Article 75 of the Civil Code of the Russian Federation, the retired participant would be liable, within the limits of the property of the retired participant of the partnership transferred to him (Article 78 of the Civil Code of the Russian Federation).

b) In accordance with Article 354 of the Merchant Shipping Code, the liability of the shipowner and salvor is limited to the requirements provided for in Article 355 of the Code of Merchant Shipping.

c) If a penalty is established for non-fulfillment or improper fulfillment of an obligation, then losses are compensated in the part not covered by the penalty. The law or contract may provide for cases: when it is allowed to collect only a penalty, but not losses; when damages can be recovered in full in excess of the penalty; when, at the choice of the creditor, either a penalty or damages can be recovered. An example of a “penalty” is contained in clause 6. Article 17 of the Federal Law “On Financial Lease (Leasing)” No. 164-FZ: if a penalty is provided for the untimely return of the leased asset to the lessor, losses may be recovered from the lessee in the full amount in excess of the penalty, unless otherwise provided by the leasing agreement.

Please note that interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) is always of an offset nature, that is, losses are recovered only to the extent not covered by the amount of these interests (clause 2 of Article 395 of the Civil Code of the Russian Federation, clause 50 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated July 1, 1996).

Losses caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local government bodies or officials of these bodies, including the issuance of an act of a state body or local government body that does not comply with the law or other legal act, are subject to compensation by the Russian Federation, the corresponding subject of the Russian Federation or municipal entity (Article 16 of the Civil Code of the Russian Federation).

4. Some excerpts from judicial practice to illustrate the above points.

1) Failure to prove a cause-and-effect relationship when collecting damages. The court overturned the court decisions taken in the case regarding the recovery of funds from the buyer-debtor in compensation for actual damage and lost profits under the repurchase agreement, indicating that the seller-creditor did not prove the occurrence of losses due to the failure or improper performance by the debtor of obligations to return the securities (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 19, 2013 N 13893/12).

2) The claim for compensation for losses caused to the plaintiff in connection with improper storage of property seized by the federal executive body was satisfied, since the transfer of such property by the said body for storage to a third party does not relieve the Russian Federation from liability for losses caused due to the failure of the federal executive body to provide proper storage of seized property. Wherein real damage calculated by the plaintiff as the difference between the purchase price and the price of the actual sale of spoiled vegetables, and the lost profit - based on the sale price of vegetables of good quality existing on the market, minus the purchase price of vegetables and transportation and procurement costs (From the Review of the practice of consideration by arbitration courts of cases on compensation harm caused by state bodies, local government bodies, as well as their officials, Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 2011 N 145).

3) Based on Part 1 of Article 161 of the Housing Code of the Russian Federation, the management of an apartment building must ensure favorable and safe living conditions for citizens, proper maintenance of the common property in the apartment building, resolving issues regarding the use of said property, as well as the provision of utilities to citizens living in such a building. Having examined and assessed the evidence in the case in its entirety and interrelation, the court found that the damage to the plaintiff’s property occurred as a result of an accident on the pipeline of the cold water supply system. Under such circumstances, the court rightfully satisfied the Company’s claim, collecting in its favor from the house management company 160,489 rubles 06 kopecks of actual damage and 87,405 rubles 69 kopecks of lost profits ( Resolution of the Federal Arbitration Court of the Volga-Vyatka District of March 13, 2014 N F01-13568/13 in case N A43-7800/2013).

4) The courts did not give a proper assessment to the defendant’s arguments regarding causal connection between the actions of the defendant and the occurrence of consequences in the form of harm to the plaintiff. It follows from the Technical Conclusion that as the cause of the collision of the diesel locomotive with the cars, which resulted in damage to the plaintiff, the presence of violations is indicated not only in the actions (inactions) of the defendant, but also in the customer, who, under the terms of the agreement concluded with the defendant, undertakes to give the defendant instructions on the use diesel locomotive Under such circumstances, the decision and resolution adopted in the case cannot be recognized as legal, and therefore, they are subject to cancellation and the case is sent for a new trial to the court of first instance to consider the stated claims on the stated grounds, establish the factual circumstances of the case, study and evaluate the presented claims. case of evidence. ( Resolution of the Federal Arbitration Court of the Moscow District of March 18, 2014 N F05-1704/14 in case N A40-87016/2013).

5) The reference of the applicant of the cassation appeal in the person of the bankruptcy trustee to the impossibility of determining the amount of losses due to the fact that the agreement concluded with the participant in shared construction was not terminated is not accepted by the court of cassation, since the provisions of the Bankruptcy Law do not contain a prohibition on determining the amount of losses in in the form of actual damage even if the construction participant did not refuse to fulfill the contract. In addition, in Art. 201.6 of the Bankruptcy Law, changes have been made, taking into account which construction participants, in terms of requirements for the transfer of residential premises, have the right to participate in meetings of creditors and have the number of votes determined based on the amount paid by the construction participant to the developer under an agreement providing for the transfer of residential premises, and (or ) the cost of the property transferred to the developer, as well as the amount of losses in the form of actual damage, determined in accordance with clause 2 of Art. 201.5 of the Bankruptcy Law. All this taken together indicates that the fact that the construction participant has requirements for the transfer of residential premises and the presence of an unterminated agreement for shared participation in construction is not an obstacle to establishing the amount of losses in the form of actual damage. ( Resolution of the Federal Arbitration Court of the Ural District dated February 18, 2014 N F09-3448/12 in case N A50-14741/2010).

Losses caused by illegal acts of tax authorities or illegal actions (inaction) of their officials are subject to compensation in full (clause 14, clause 1, article 21 of the Tax Code of the Russian Federation).
state for the actions of tax authorities and their officials is provided for in Art. Art. 35, 103 of the Tax Code of the Russian Federation, as well as Art. Art. 15, 16, 1069 Civil Code of the Russian Federation. As a general rule, liability provided for in these articles occurs if the offense is proven. Namely:
- fact of harm;

- guilt of the harm-doer;
- a cause-and-effect relationship between the actions of the harm-doer and the adverse consequences experienced by the taxpayer.
When proving the fact of causing harm, the fact of causing harm, as well as the amount of damages, are proven.

How to prove the fact of harm

Fact of harm- these are events or actions of tax authorities (their officials) as a result of which the taxpayer suffered a loss. As a result of causing harm, a legal relationship for compensation of losses arises: the taxpayer has the right to demand compensation for losses, and the tax authorities that caused it have an obligation.

Note. Causing harm is impossible without losses. The presence of losses is a mandatory sign of harm caused. Damage caused by an illegal act is the loss incurred by the taxpayer (fee payer, tax agent) or their property in their possession, use or disposal.

The fact of causing harm is a mandatory basis for the tax authorities to have obligations to compensate for losses.
The fact of causing harm is established by establishing a connection between the act, decision, actions (inaction) of tax authorities (their officials) and the occurrence of losses, as well as by collecting documents that record and confirm the harm caused, as well as evidence of expenses incurred.
For example, harm caused to human health is confirmed by documents on expenses for medicine, special food, sanatorium treatment, etc. If we are talking about the property of a legal entity, then documents are required confirming the decrease in the value of the property due to harm, etc.
How can the extent of harm be determined?
This is possible, firstly, by conducting an examination or by submitting petitions to the court to order an examination. It should be noted that in both cases, the costs of conducting the examination are borne by the one who demands compensation for losses (i.e., the taxpayer), but if the court finds that he is right, then these costs can be reimbursed to him.
Thus, the plaintiff demanded recovery of actual damage and lost income, and the accuracy of this exact amount of damage was confirmed by an expert opinion. The tax authorities referred to the fact that the examination was carried out by a person who did not have sufficient knowledge to determine the amount of losses at the enterprise. However, the court did not accept this argument, pointing out that the qualifications of the expert organization confirm the presence of a license to carry out this type of activity.

How to prove the amount of damages

Losses- these are the expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his the right was not violated (lost profits) (Article 15 of the Civil Code of the Russian Federation).
That is, they add up:
- from actual expenses incurred and
- lost income.
A specific calculation of the amount of damages must be submitted to the court.
In support of actual expenses incurred, taxpayers, as a rule, can present contracts, estimates, calculations that can confirm the amount of costs for eliminating defects in goods (works, services), etc.
As for proving the amount of lost profits, we must remember the criterion of reasonableness. The amount of lost income is determined taking into account the reasonable costs that the creditor should have incurred if the obligation had been fulfilled.
For example, if we are talking about compensation for losses in the form of lost income caused by short-delivery of raw materials or components, then the amount of income is determined based on the sales price of finished goods provided for in contracts with their buyers, minus the cost of short-delivered raw materials or components, transportation and procurement costs and other costs associated with the production of finished goods. If there are no contractual relations between the parties, then there are no grounds for recognizing losses in the form of lost profits. That is, there is no point in citing requests and applications from potential clients to justify the amount of lost profits.
As a cheat sheet for calculating losses, you can use the Temporary Methodology for determining the amount of damage (losses) caused by violation of business contracts (Appendix to the Letter of the USSR State Arbitration Court dated December 28, 1990 N C-12/NA-225).
Despite the fact that this document is undoubtedly outdated, there are no other guidelines yet.
As the main consequences of violation of contractual obligations and types of losses, the Methodology names, firstly, a decrease in the volume of production or sales of products (works, services). It is proposed to define lost profit as the difference between the price and the cost of a unit of production (work, services), multiplied by the amount of unproduced or unsold products (work, services) as a result of the harm caused.
Of course, this is quite difficult, especially since the decrease in volumes is associated not only with the actions (inaction) of the tax authorities. It will be necessary to prove not only the fact of the impact of the harm caused on the reduction in production volume, but the absence of other factors.
Secondly, loss or damage to property. The cost of lost property is determined as its book value minus depreciation or as the price of its acquisition, taking into account transportation and procurement costs. Attention: in the event of a complete loss of property that was previously damaged, only the market value of the lost property is compensated (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 13, 2000 N 8904/99).
Thirdly, if, as a result of damage caused by tax authorities (their officials), the taxpayer was forced to take out an additional bank loan or delay the repayment of a previously received loan, the losses subject to compensation include the cost of paying interest for using the loan.
It should be borne in mind that expenses that the taxpayer must already make in the process of conducting business (including utility bills and rental expenses) cannot be recognized as losses.

How to prove wrongfulness

It is required to prove the illegality of the behavior of the tax authority (its officials). An act is called illegal only if it contradicts the law and is directed against relations that the law protects.
If losses were caused by lawful actions, then they are not subject to compensation, except for cases provided for by federal laws (clause 4 of article 103 of the Tax Code of the Russian Federation).
Behavior is commonly understood as actions, inactions and decisions.
An act that causes harm can be expressed in writing or orally, and can take the form of an order, regulation, resolution, instruction or other authoritative instruction addressed to citizens and legal entities and subject to execution.
This may also be illegal inaction, because in the field of tax legal relations activity is often required, and failure to take the necessary measures provided for by laws and other legal acts can lead to harm.

Proving guilt

Traditionally, two forms of guilt are distinguished: intent and negligence.
The person who caused the harm is exempt from compensation for the harm if he proves that the harm was caused not through his fault (Clause 2 of Article 1064 of the Civil Code of the Russian Federation). This is the general rule. In relation to the tax authority (official), guilt is assumed from the outset. And this presumption is quite difficult to refute - taking into account the fact that officials are obliged by default to know and comply with current legislation and not violate the rights of citizens and legal entities.
The tax authority may be found not guilty of causing harm if it has taken all measures to prevent it.
The guilt of the tax authority is revealed in the behavior of certain individuals - officials and other employees (Article 35 of the Tax Code of the Russian Federation).
If the actions of these persons were committed within the framework of official duties, then it is considered that their fault is the fault of the tax authority itself.
If you demand compensation for losses caused as a result of harm caused by tax authorities and resulting in failure to fulfill obligations to counterparties, then you will need to submit to the court evidence indicating that you properly fulfilled your contractual obligations before the occurrence of harm, violation of obligations assumed under the contract as a result of causing harm, acceptance of all possible measures to prevent losses or reduce their size.
So, the state’s responsibility for the actions of the tax authorities is considered proven if the elements of the offense are proven, which includes:
- occurrence of harm and proof of the amount of losses;
- illegality of behavior of the tax authority (its officials);
- guilt of the harm-doer;
- a cause-and-effect relationship between the actions of the harm-doer and the adverse consequences experienced by the taxpayer.

February 2012