Some Civil Law Concepts of Non‑Pecuniary Harm in Europe

Анотація

The article is aimed at comparing different concepts of individual right protection. The author dwells on two theories of claims for moral harm. They are the rebuttable presumption relied on in the EU, and the need to provide evidence of harm under Russian law. In addition to reviewing several doctrinal works, higher courts rulings and the European views on the topic, the author focuses on the question of the relationship between moral and reputational harm, noting here that not all of the identified doctrinal concepts correspond to strict legislative terminology. For example, information injurious to honor, dignity, or business reputation may not cause harm (save for moral harm) but is associated with the occurrence of damages. It seems to be the first work advocating the thesis that damages can be recovered instead of non-pecuniary harm. The Russian tort law concept bares some features of Soviet tradition with strict division between reimbursement of harm and recovery of losses. It was allowed only when reimbursement in kind grew impossible. That was later transferred on to judicial discretion to determine the right means of legal protection. The formula that recovery of losses is a substitute of compensation of any harm had been set forth in Civil Code serving as a legal basis to sue for losses in lieu of moral damage.

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