Liability for harm caused to the life or health of a citizen
Harm caused to the life or health of a citizen is expressed in the death of a person or damage to his health (injury, other trauma, illness). Such harm in all cases can not be either refunded in kind, or offset by cash. However, when it is inflicted, the victim usually has property losses, because he is temporarily or permanently deprived of the opportunity to receive previous earnings or other income, is forced to bear additional costs for treatment, P. In the event of the death of a citizen, such losses may be suffered by persons close to him who are deprived as a result of this source of content or income. Such losses of the victim or persons close to him are subject to compensation by the torturers under tort obligations. On these grounds, the victim also compensates for the moral damage caused Therefore, causing harm to life or health is by virtue of law one of the grounds for the occurrence of tort obligations.
Harm caused to the life or health of a citizen is subject to reimbursement within the framework of extra-contractual obligations and in cases when it is the result of improper performance of the contract (civil, labor) or the performance of obligations under the contract, not related to its violation. According to Art. 1084 CC harm caused to the life or health of a citizen in the performance of contractual obligations, as well as in the performance of duties of military service, service in the police and other relevant duties is compensated under the general rules on liability for harm caused to life or health, unless the law or contract provides for more high responsibility.
The workers insured in accordance with the legislation on social insurance are entitled to compensation for harm in accordance with the norms of Ch. 59 GK in the part exceeding the provision for insurance.
In connection with the infliction of injury to a citizen or other damage to his health, first of all, the lost earnings or other income that he had or could definitely have had before the damage to his health (item 1 of item 1085 GK). In determining the amount of compensation, earnings or other income that the victim could have after causing damage to his health may be considered.
The peculiarity of the current legislation is that the earnings or income lost to the victims is not subject to a reduction in the amount of pensions, allowances and other payments that are assigned to him in connection with an injury or other damage to health, which should not be counted as compensation for harm. It is not counted in the account of such compensation and earnings or income received by the victim after damage to his health (clause 2, article 1085 of the Civil Code). Thus, at present, guarantees for the protection of property interests of persons whose health was harmed have been significantly increased. In addition, the amount and amount of compensation for damage due to the victim may be increased by law or by contract (Item No. 1083 CC).
The amount of earnings (income) lost to the victim is determined as a percentage of his average monthly earnings (income) before injury or other damage to health or before the loss of their ability to work, the appropriate degree of loss to the victim of professional work capacity, and in the absence of professional work capacity - the degree of loss of general working capacity (clause 1 of Article 1086 of the Civil Code).
According to paragraph 2 of Art. 1086 CC in the lost income (income) of the victim includes all forms of payment for his labor under labor and civil law contracts both at the place of primary work, and part-time, taxable income tax. Revenues from business activities, as well as royalties are included in the lost earnings, while business income is included based on the data of the tax inspection. All types of earnings (income) are recorded in the amounts accrued before before withholding taxes.
The average monthly earnings (income) of the victim is calculated by dividing the total amount of his earnings for 12 months of work, preceding health damage, by 12. In the case of a victim the time of injury worked less than 12 months, the average monthly earnings (income) is calculated by dividing the total amount of earnings (income) for the actual number of months preceding preceding health damage by the number of these months .
In the event that the victim at the time of injury did not work, he takes into account his earnings before his dismissal or the usual amount of the employee's salary in the given locality, but in both cases no less than established in accordance with the law of the subsistence minimum of the able-bodied population in the whole of the United States (item 4 of article 1086 of the Civil Code).
As a result of the resulting injury or other damage to health, the victim can receive only a short-term health disorder, in which he must be compensated for his lost earnings or other income for the entire duration of the illness. However, the result of causing harm to the health of the victim may be a persistent or unrecoverable loss of work capacity. In this case, in order to determine the amount of damage to be compensated, it is necessary to establish the degree of loss of professional ability to work, ie. the degree of decrease in the ability of the victim to previously performed work according to his specialty and qualification.
The degree of loss of professional capacity for work (in percents) is determined by the institutions of the State Service of Medical and Social Expertise, which are part of the structure of the social protection bodies of the population (it is determined directly by the medical and social expert commissions - the Ministry of Health). Depending on the degree of loss of the said work capacity established by the examination, the victim is recognized as an invalid of one of three groups.
In the absence of the victim's professional capacity to work, the degree of loss of his general ability to work, is taken into account. ability to unskilled labor that does not require special knowledge and skills. It is set in the same way.
Considered also gross negligence of the victim, contributing to the occurrence or increase of harm (Article 1083 GK). At the same time, the amount of compensation decreases in proportion to the degree of fault of the victim.
In the case of causing harm to the health of a minor (under 14 years of age), who did not have earnings or income, the inflictor reimburses only expenses caused by damage to health and moral harm. When the minor has reached the age of 14 years, as well as when harming a minor aged 14 to 18 years old who does not have earnings (income), the inflictor must also compensate for the harm associated with the loss or decrease in his/her ability to work, on the basis of from the statutory minimum subsistence level of the able-bodied population in the whole of the United States. If, at the time of injury to his health, the minor had earnings, the damage is compensated based on the size of this zarab refusal, but not lower than the amount of the subsistence minimum of the able-bodied population as a whole for the United States established in accordance with the law. After commencement of employment, a minor whose health was previously harmed has the right to demand an increase in the amount of compensation for harm based on the earnings received by him, but not less than the amount of remuneration established by the post he holds, or the earnings of an employee of the same qualification at his place of work (art. 1087 GK).
In case of harm to the health of a citizen, additional expenses incurred as a result of damage to health along with lost earnings (income), including:
for treatment and purchase of drugs;
purchase of special vehicles;
preparation for another profession.
All these additional costs are reimbursed to the victim if it is determined that he needs appropriate types of assistance and care and is not entitled to receive them free of charge (clause 1, article 1085 of the Civil Code). Such need must be confirmed by the conclusion of medical and social expertise, and in disputable cases can be established by the court. When determining the amount of reimbursement for additional expenses the fault of the victim is not taken into account in the occurrence or increase of damage (paragraph 3 of clause 2 of Article 1083 of the Civil Code).
In addition, the victim has the right to demand monetary compensation for the moral damage suffered by him > above the compensation of property damage caused to him (Article 151, item 3 of Article 1099 of the Civil Code).
The law contains special rules for the compensation of damage caused by the death of the breadwinner. According to these rules, in the case of the death of the survivor who was the breadwinner, the right to compensation for harm .1088 GK):
1) disabled persons who were dependent on the deceased or who had the right to receive maintenance from him (minors, men over 60 and women over 55, disabled) by the day of his death;
2) the child of the deceased, born after his death;3) one of the parents, spouse or other member of the family of the victim who is not working and is engaged in the care of the deceased's children who have died (under the age of 14) or who need children, grandchildren, brothers, sisters for health reasons (regardless of age). At the same time, in case of incapacity for work for the age or state of health during the period of the care of the said person, the latter retains the right to compensation for harm after the termination of care;
4) persons who have been dependent on the deceased and become disabled for five years after his death.
The damage caused by the death of the breadwinner is reimbursed within the terms provided for in Clause 2, Art. 1088 CC (minors - up to 18 years, full-time students - until graduation, but not more than 23 years old, women over 55 and men over 60 years of age, disabled persons - during the period of disability, etc. .).
Persons who are entitled to compensation for damage in connection with the death of the breadwinner, damage is compensated in the amount of the percentage of earnings (income) of the deceased which they received or had the right to receive his content during his life (after deduction of the share attributable to the deceased). When calculating this share, the shares of all persons, including able-bodied, who were dependent on the person, as well as persons who, although not dependent on him, were taken into account, but were entitled to receive from him the content. At the same time, the pensions assigned to eligible persons both before and after the death of the breadwinner, as well as their earnings, scholarships and other incomes (item 2, article 1089 of the Civil Code) are not included in the amount of compensation. The victim's fault in causing him death is not accountable. At the same time, an increase in the specified amount of compensation by law or by an agreement is permitted.
The average earnings or other income of the victim is determined by the same rules as when injuring a citizen's health. However, the income of the deceased in this case includes the pension received by him during life, life imprisonment and other similar payments (item 1 of Article 1089 of the Civil Code).
The amount of compensation may be increased by law or by agreement (clause 3, article 1089 of the Civil Code). In addition, dependents are entitled to non-pecuniary damage in excess of the established amount of compensation for property damage they incur.
Persons responsible for damage caused by the death of the victim are obliged to reimburse the necessary burial expenses to the person who incurred these expenses. The burial allowance received by the citizens who incurred these expenses is not directly included in the bill for damages (Article 1094 of the Civil Code), but it is taken into account in determining the composition and amount of those necessary expenses that should have been incurred at the expense of the person who actually incurred them. In this case, the fault of the victim is also not accounted for.
Compensation for harm caused by a decrease in the ability to work or the death of the victim is usually made by periodic, monthly payments. If there are valid reasons, the court, taking into account the possibilities of the harm's inflictor, may, but the request of the citizen entitled to compensation for damage, award him the due payments at a time, but not more than three years (clause 1, article 1092 of the Civil Code).
Additional costs are reimbursed through the production of one-time payments, and such payments may be repeated. Possible reimbursement of such expenses for the future (paragraph 2 of Article 1092 of the Civil Code). The amounts for reimbursement of moral damage and funeral expenses are paid once.
The law (clauses I and 2 of article 1090 of the Civil Code) provides for the possibility of a corresponding change in the amount of compensation for harm caused to health, if the victim's capacity of work has decreased or increased by compared with the one that he had at the time of award of compensation for harm. A similar effect on the amount of compensation for this damage can be made by changing the property status of the citizen who caused the harm (Section 3.4 of Article 1090 of the Civil Code).
The amounts of compensation paid to the victim or his dependents are subject to change in proportion to the growth of the subsistence minimum per capita established in accordance with the law in the relevant US subject at the victim's place of residence, and in the absence of the specified amount in the relevant US entity, in accordance with the law, the subsistence minimum per capita as a whole for the United States (Article 1091 GK).
The amount of the survivor's benefit paid to specific dependents can also be changed by recalculating in the following cases:
- the birth of the child after the death of the breadwinner;
- the appointment or termination of the payment of compensation to persons engaged in caring for children, grandchildren, brothers and sisters of the deceased breadwinner (clause 3 of article 1089 of the Civil Code).
In the event of the liquidation of a legal entity recognized in due course as being liable for damage caused to life or health, the corresponding payments must be capitalized (ie, for the entire period of anticipated payments) for the transfer of their organization, which is obliged in the future to pay to the victim according to the rules determined by a special law or other legal acts (clause 2 of article 1093 of the Civil Code).
Claims for compensation for harm caused to the life or health of citizens do not apply limitation of actions. However, the claims made after three years from the moment of occurrence of the right to compensation for such harm are satisfied not more than three years, preceding the presentation of the claim.
In the current Civil Code, the provisions on liability for damage caused by defects in goods, work or services are specifically set out for life, health or property of citizens or property of legal entities (§ 3 hl 59).
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