Civil liability for compensation for material damage is regulated by the Civil, Civil Procedure and Labor Codes. Various articles determine the amount, calculation and procedure for compensation for damage.
Material damage can be caused by an accident, traffic accident, fire, poor quality services or other reasons. The amount of compensation is summed up from:
- physical loss due to loss or damage to property;
- restoration and search costs;
- lost profits.
If at least one of the components is present, we can already talk about material damage. The monetary value of these components can be very controversial. Therefore, both the suspect and the victim need the help of an experienced lawyer.
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Causing material damage in accordance with the civil legislation of the Russian Federation
According to the Civil Code of the Russian Federation, in our country there is legal liability for causing material harm by citizens - such cases include damage to both the citizens themselves and their property. In such circumstances, the culprit or saboteur is obliged to make compensation in accordance with the established procedure.
In judicial practice, there are cases when the culprit refuses to pay for what he did. This may happen for some reasons:
- in the event that material damage was caused at the request of the victim himself;
- if the culprit is a minor (a person under 14 years of age), in this case financial responsibility falls on his relatives;
- in case of deficiencies in the evidence base;
- if there is no evidence of guilt or insufficient information.
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A separate category includes financial liability for false information about goods and services in the trade area, for example, when selling low-quality goods. Reimbursement is carried out in accordance with the rules established by civil law. Sometimes the norms of the Labor Code are also added to the regulation of the dispute (for example, when the harm was caused by the employer or in the reverse order). Compensation for harm voluntarily occurs very rarely, so most often the matter comes to court proceedings, which require the qualified assistance of a lawyer and a competent legal expert who can not only correctly draw up a claim, but also defend the client’s point of view in court.
How to prove an employee’s guilt and recover damages
To recover material damage from an employee, you need to conduct an internal investigation and collect evidence of guilt.
The first stage: draw up an incident report.
Describe what happened and why. The act is drawn up in any form. The document confirms that the damage was caused.
Stage two: issue an order to conduct an internal investigation.
To check, you need to assemble a commission. It usually includes a manager, deputy, secretary, lawyer and accountant. Each member of the commission must sign the order.
Standard form of an order to conduct an investigation from the Rostrud website
Stage three: obtain a written explanation from the employee.
A verbal explanation will not do. A registered letter must be sent to the employee’s residential address demanding an explanation. If he refuses or does not respond on time, draw up an act of refusal. His employee may not sign.
Standard form of an act on an employee’s refusal to provide an explanatory letter from the Rostrud website
Stage four: draw up a conclusion (act) of the commission on the results of the internal investigation.
In court, it is important to show that the commission investigated the case and did not simply accuse the employee. You can interview witnesses, provide CCTV footage, order an independent examination of the damage, and conduct an inventory.
For example, if a driver is involved in an accident, evidence of his guilt will be a traffic police report, and if money is missing from the cash register, a recording from a CCTV camera will be evidence.
If the employee refuses to sign the conclusion, a statement of refusal must be drawn up.
The conclusion on the results of the investigation should contain the following sections:
- the fact of damage, its nature;
- extent and causes of damage;
- employee's fault;
- illegality of the actions committed;
- a cause-and-effect relationship between the employee’s actions and the damage.
Standard form of the report on the results of the investigation from the Rostrud website
Fifth stage: issue an order to hold the employee financially liable.
This must be done within a month after the extent of the damage is established. The employee must sign the order. If he refuses or has disappeared, draw up an act of refusal.
The employee has the right to appeal the results of the investigation in court.
Standard form of an order to hold an employee financially liable from the Rostrud website
Then there are three possible scenarios:
- The employer issues an order and the damages are deducted from the employee's salary. This is possible when the amount of compensation does not exceed the monthly salary. You can deduct no more than 20% of your salary each month.
- The employee enters into a separate agreement with the employer on the period and procedure for compensation for damages. The parties can agree on anything: the employee can pay the entire amount in cash at once, or he can pay in installments for several years, for example, 7 thousand rubles every month for 5 years.
- The amount of damage is greater than the salary, the employee refuses to pay - compensation will have to be recovered through the courts.
Example from judicial practice: Chelyabinsk District Court, case No. 2-297/2020 dated February 25, 2022.
During the inventory of the shoe store, a shortage of 246 thousand rubles was revealed. The owner demanded to recover this amount from four sellers. Agreements were concluded with them on full collective financial responsibility.
The court rejected the claim. During an internal investigation, violations were found. In addition, the plaintiff did not provide invoices for the goods to substantiate the amount of damage.
Stage six: go to court.
An employer can file a claim within a year of discovering the damage. Such cases are heard by the district court, not the magistrate.
You can file a claim against a fired employee. Dismissal does not relieve one from liability.
The following must be attached to the claim:
- labor contract;
- job description;
- agreement on full financial liability;
- act on the transfer of material assets to the employee;
- incident report;
- order to create a commission;
- employee's explanatory letter;
- conclusion on the results of the internal investigation;
- order to prosecute;
- evidence of guilt;
- acts of refusal, if any.
Example from judicial practice: Obninsk City Court, case No. 2-40/2020 dated February 25, 2022.
The construction company sued the accountant, accusing him of unjust enrichment. Allegedly, he spent a million rubles on the purchase of materials and did not report.
The court rejected the claim. One of the arguments was a violation of the statute of limitations.
Procedure for compensation for material damage
In Russia, the following procedure for compensation for material damage applies:
- collecting evidence of damage incurred. The first thing the judge will require is evidence that the harm caused was real;
- collection of evidence that material losses are associated with the unlawful actions of the defendant;
- the presence of a direct connection between the material damage and the actions of the defendant.
Their parents, guardians, etc. are responsible for the actions of minors and incompetent persons. If the harm is caused by an entrepreneur or legal entity, it is not necessary to prove his guilt in order to compensate for the damage; the fact of an illegal action is sufficient. Thus, the procedure for compensation for material damage for each category of persons is strictly individual.
Administrative responsibility
A person who damages someone else's property may be subject to administrative or criminal penalties depending on the value of the damaged item. Administrative liability occurs when the damage is estimated at up to 5,000 rubles. For example it could be:
- scratch on the car;
- broken window glass;
- torn clothes or shoes;
- broken dishes in a cafe, etc.
The cost of damage is determined by an expert based on the evidence collected in the case: testimony of the victim, the owner of the property, witnesses, documents for the damaged item and a study of the market value of similar items.
The main condition for the onset of administrative liability, as in the case of damage to property under the Criminal Code of the Russian Federation, is the presence of intent in the actions of the offender. That is, if a glass falls from a table in a restaurant due to a careless movement, they will not be held administratively liable, but if the dishes are deliberately broken by a drunken visitor in a fit of anger, he will have to not only reimburse its cost, but also be punished.
A person who causes damage to property in the amount of up to 5 thousand rubles may be punished with an administrative fine in the amount of 300 to 500 rubles.
If the cost of damage is estimated by an expert to be higher than the stated amount, then the offender faces criminal liability. It is worth noting: licensed expert organizations have the right to assess the amount of damage caused to property. The injured person can turn to them either independently or by appointment of the court. The expert will determine the market value of the object (vehicle, real estate, other expensive goods) at the time of damage, taking into account the possibility of restoration.
Who is entitled to compensation for damages?
How can damages be compensated if criminal proceedings are designed to resolve issues of guilt and punishment, but not to recover damages? Very simple.
The law provides for the possibility of filing a civil claim within a criminal case. Art. 44 of the Code of Criminal Procedure of the Russian Federation establishes who can be a civil plaintiff. According to the article, any person (citizen or organization) who has suffered damage from a crime may demand compensation for the harm caused.
A civil claim for compensation for damages from a crime will be tied to the criminal case. This means that the plaintiff does not need to start the proceedings again - everything will be considered in one proceeding.
Moreover, the plaintiff does not need to draw up additional documentation and send copies to all participants - it is enough to submit an application to the court or to the investigator.
What is the damage?
Criminal procedural legislation does not disclose the concept of damage. In practice, the definition from civil law is used, which once again proves the “dual nature” of compensation.
Damage caused by crime is of three types:
- physical;
- property;
- moral.
Physical damage is caused to the health of a citizen, property damage affects the integrity and safety of material wealth, and moral damage is physical or moral suffering.
It is obvious that organizations can only compensate for property damage, since they do not have any health or morality. At the same time, legal entities can claim compensation for damage to business reputation.
Examples of crimes for which a claim can be filed:
- theft;
- fraud;
- robbery;
- accidents;
- abuse of power;
- hooliganism.
The list is incomplete. Wherever a crime occurs, it is potentially possible to make a claim for damages.
Compensation for harm in the form of rehabilitation
Everyone makes mistakes. What should a person who has been wrongly accused of a crime do? If the court overturned a previously passed sentence or ruling, then the “former accused” has the right to compensation for property damage.
In Art. 135 of the Code of Criminal Procedure of the Russian Federation indicates the points for which compensation can be made:
- salary;
- pensions and other social benefits;
- fines;
- amounts from the sale of confiscated property.
Compensation is available to the rehabilitated person during the entire limitation period. The court undertakes to pay all compensation within 1 month from the date of filing the application from the rehabilitated person.
Lost profit
Lost profits usually mean income that one party could have received under normal conditions of civil legal relations, but did not receive due to the commission of illegal actions by the other party. In other words, lost profits are always associated with a deterioration in the financial situation of one of the parties.
Lost profits include:
- Lost income (Article 15 of the Civil Code of the Russian Federation).
- Reasonable expenses for the return of lost income (clause 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7). However, this rule does not mean at all that other costs cannot be included in this calculation, in addition to the costs of implementing the measures and preparations taken (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25).
Clause 4 art. 393 of the Civil Code of the Russian Federation states that when calculating the amount of lost profit, it is necessary to take into account all the actions of the injured party aimed at obtaining it, and all preparations for this.
Clause 5 of the above article informs that the court cannot refuse to recover damages, including lost profits, if its size cannot be reliably determined. In other words, an approximate or superficial calculation is allowed, the amount of which the court determines independently (clause 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7).
The formula for calculating lost profits is determined based on its concept set out in paragraph 2 of Art. 15 of the Civil Code of the Russian Federation, namely: lost income that would have increased the party’s property sphere under normal conditions, the amount of which is determined taking into account the corresponding costs. That is, this is the difference between potential (unreceived) income and costs incurred.
Compensation for harm from a crime: what is regulated
Compensation for harm has a dual nature: civil and criminal. The potential opportunity to receive compensation from a crime is enshrined in Art. 52 of the Constitution of the Russian Federation, which establishes that the rights of victims are protected by law.
The basic provisions on damage are established in Art. 1064 of the Civil Code of the Russian Federation. The article states that harm caused to a person through the fault of the other party is compensated in full. It is worth noting that this article does not lose its force in the framework of criminal proceedings.
The concept of harm according to the Civil Code of the Russian Federation
In the theory of civil law, the definition of harm includes any degradation of personal or property benefits.
Damage can be caused to both the person and the property belonging to her. In the legal literature, it is customary to use several terms: “harm”, “damage”, “losses”, which are interrelated.
Harm is the material consequences that occurred as a result of the offense committed, which have an estimate of their value.
The assessment of property damage is usually called losses, which, in turn, under the terms of Part 2 of Art. 15 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) is usually divided into:
- For real damage. In other words, these are the costs incurred by the injured party to restore his violated right or as a result of loss or damage to his property.
- Lost profit. In other words, this is the name of the lost profit that a person would have received under normal conditions, without violating his rights.
In this case, the person whose right was violated has the right to demand full compensation for losses incurred, unless a different amount is established by the terms of the agreement or the law (Part 1 of Article 15 of the Civil Code of the Russian Federation).
What is the amount of compensation and what does it depend on?
The amount of compensation is determined by the court according to the documents provided and the calculation of the property valuation. The property can be assessed either by the victim himself or by a third-party organization based on an examination.
Stages of property assessment:
- Selecting an expert and determining the time for the examination.
- Notifying all interested parties, including the defendant, about the place and time of the assessment actions.
- Obtaining a conclusion indicating the amount of compensation required to restore property damage.
Calculation of the amount of compensation depends on several factors:
- the assessment of compensation for payments is calculated individually (alimony, etc.);
- assessment of compensation for damage to real estate is carried out according to the inventory certificate of the property;
- assessment of the return of funds for late payment of borrowed funds - the amount includes the amount of debt plus interest, if this is provided for in the loan agreement.
