Deryugina T.V. The Theoretical and Practical Problems of Interpreting and Applying the Categories of “Loss”, “Harm”, “Damage”
DOI: https://doi.org/10.15688/lc.jvolsu.2018.1.2
Tatyana V. Deryugina, Doctor of Juridical Sciences, Professor, Vice-Rector for Research, Volgograd Institute for Humanities, Gribanova St., 12, 400011 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , This email address is being protected from spambots. You need JavaScript enabled to view it.
Introduction: the imperfection of the legal regulation of the relations arising from causing losses or harm resulted in the possibility of ambiguous interpretation and application of the rules of law in practice. The lack of understanding of the legal nature of the jural relations, and as a result, the incorrect qualification of these relations, gave rise to a variety of judicial practice, allowing for non-contractual liability for breach of contractual obligations. The revealed violations of the law are of a systemic nature and not only require the scientific analysis, but also cause the need to develop the algorithm that allows the law enforcement officer to correctly qualify the relationship associated with the compensation of harm or loss, based on the difference in the grounds of obligations. The purpose of the study is to analyze the concepts of “loss”, “harm” and “damage”; to identify the theoretical positions and the law enforcement problems; to formulate the recommendations for the use of these concepts in practice. The methodological framework for the study is a set of general scientific methods (logical (induction, deduction, analysis and synthesis), system, functional), the general method (dialectical materialism), and private law methods (formal and legal, comparative and legal). Results: the questions of the legislative definition of the concepts “losses”, “harm, and “damage” are considered; the theoretical concepts are presented. The law enforcement problems, based on the incorrect definition of the legal nature of the jural relations involving civil liability and, as a consequence, the incorrect application of the rule of law are revealed. The issues concerning the possibility/impossibility of compensation for loss of profits in the absence of real harm are raised; the doctrinal interpretation of the concepts of real harm and loss of profits in relation to the concepts of direct and indirect harm are given; the judicial practice is analyzed; the recommendations for the use of categories of real harm and loss of profits in civil liability are given. Conclusions: there are made the conclusions of the dependence of the use of the categories “losses” and “harm” on the legal nature of the jural relations, which are the grounds for bringing to civil liability. There is formulated the algorithm that allows the law enforcer to correctly qualify the jural relations and consequences of inappropriate conduct. The impossibility of loss of profit without causing actual damage is proved. The factors affecting the formation of actual damage are systematized. It is proved that the key criterion distinguishing the concept of actual damage and loss of profits cannot be the criterion of the value of the object. The dependence of the lost profit not from the increase or decrease in the cost of the object, but from the participation or non-participation of this object in the civil turnover is proved.
Key words: harm, damage, losses, lost profit, recovery in kind, contractual obligations, damages in tort, direct and indirect damage.
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