Vokhidov Khamidjon Makhmudovich
Independent Researcher of Tashkent State
University of Law
(e-mail: yurist_03@mail.ru).
CLAIM ON RECOVERY
OF DAMAGES CAUSED BY DEPRIVATION OF LIFE OF A PERSON
Abstract
This
article examines notion, substance of claim on recovery of damages caused by
deprivation of life of a person from scientific theoretical aspect.
Key words: damages caused by deprivation
of life of a person, claim, claim that is not subject to limitation period,
out-of-court agreement on recovery of damages.
In contemporary civil law
theory order of recovery of damages caused by deprivation of life of a person
can be carried out by different methods. There are several classifications of
forms of protection of rights in civil and civil procedural law theory. [1] Specifically, as
to V.P. Gribanov, right for protection according to its substantial legal
structure includes the following:
firstly, applying coercive
measures provided in law to offender by authorized person, protection of own
rights by factual actions (self-defense of civil rights by citizen);
secondly, possibility of
applying juridical measures of operative effect to offender by authorized
person himself (in juridical literature these actions are interpreted wrongly
as operative sanction);
thirdly, possibility of
application to competent state or public bodies by authorized person asking to
compel a person who should perform mandatory actions to carry out certain
actions (protection of civil rights in administrative or court order).[2] In our view this
classification of the scholar is right.
Constitution of the Republic of Uzbekistan guarantees protection of
rights of citizens and persons without citizenship by court. Protection of life
and health of citizens is realized by initiating claim in court.
Recovery of damages caused by deprivation of life of a person in
administrative order is made by applying to higher body or a public official.
Analysis of norms of the Civil Code showed that protection of civil rights in
administrative order can be done only in circumstances provided in law (part 6
of article 2 of the Civil Code).
In European countries there is possibility of recovery of damages caused
by deprivation of life of a person in administrative order. Also, this order
applies to recovery of damages caused by state body or a public official. It
should be noted that there are also different views on introduction of such
order into legislation of CIS states.[3]
In our view these opinions have positive side as well. For example,
recovery of damages caused by deprivation of life of a person in administrative
order – firstly, convenience of
out-of-court order in relation to claims in which amount recovered for claimant
is not large (when court expenses are more than claim amount), secondly, will serve to decrease
caseload of courts in country and thirdly,
in resolving dispute in this order maximum amount of damages recovered in
administrative order should not be more than amount of living minimum. In case
of amount of claim being large, the most efficient method for interested
parties is recovery of damages in court.
V.V. Popov expresses his objection to this opinion and advances the idea
that order of administrative or criminal procedural recovery of damages does
not always mean full recovery of damages.[4] However, as we
defend the view of further simplification (liberalization) of the order of
recovery of damages in small amounts
caused by deprivation of life of a person, it should be said that body
that is acting on behalf of treasury is not authorized to determine
independently out-of-court recovered amount. Therefore, in our opinion, in
obligation where one of the parties is public legal association court is the
most appropriate form of protection of violated rights.
Under self-defense of civil
rights by a person himself civil lawyers understand realization of actions in
factual order by authorized person directed at protection of his personal or
property rights and legal interests permitted by law.[5]
Today discussion of
possibility and advantages of out-of-court recovery of damages caused by
deprivation of life of a person is becoming one of the urgent issues for civil
lawyers. Therefore, we cannot agree with I.S. Shabunina’s position as to
characterization of obligations that arise in consequence of causing damages as
obligations emerging out of law and therefore there is no possibility of
changing them in contractual order.[6]
Although paragraph
2 of chapter 57 of the Civil Code of the Republic of Uzbekistan includes norms
on recovery of damages caused to life and health of a citizen, it also contains
norms on changing amount of recovery by contract. In legal literature the main
feature that characterizes civil legal responsibility is its permissive nature.[7] According
to this feature creditor decides independently the issue of whether to bring
offender for responsibility or pardon him. [8] In our
opinion, when we say about permissive nature, it should represent other
features of civil legal responsibility. Specifically, possibility of
establishing by agreement of parties, voluntary admission by offender.[9]
Thus, independence
in realization and protection of civil rights (within the scope provided in
law) not only affect realization of claim on recovery of damages caused by
deprivation of life of a person but also order of execution of obligation that
arise as a consequence of causing damages.
Out-of-court recovery of damage is directed at ending civil rights and
obligations that arise out of caused damages, in this case norms of the Civil
Code on deals should be applied. In the procedure of recovery for damages caused to
life agreement on order and amount of recovery can be evidenced as one of
displays of juridical measures of operative effect. Conclusion of such
agreement serves as fast and efficient fulfillment of obligation. Furthermore, issue of legal
regulation of order of conclusion and consequences of such agreements should be
approached carefully otherwise this agreement could run against mutual interests
of parties.
Both parties could apply to court asking that out-of-court agreement on
recovery of damage is invalid on general basis of invalidity of deals. In such
cases general and special consequences of invalidity of deals can emerge. Thus,
out-of-court recovery of damages can be made unless this action does not
contradict imperative norms provided in law and appropriate formalities.[10]
Taking into
account special features of relations on recovery of damages caused by
deprivation of life, pursuing the goal of introducing sample form and claims
for these types of agreements we think that special bylaw should be adopted.
[1] Dobrovol'skij A.A., Ivanova S.A. Osnovnye problemy iskovoj formy zashhity prava. –M., Izd-vo MGU, 1979. –S.25.; Sverdlyk G.A., Strauning Je.L. Zashhita i samozashhita grazhdanskih prav: Uchebnoe posobie. – M., Leks-kniga, 2002. –S.37.; Bogdanova E.E. Formy i sposoby zashhity grazhdanskih prav i interesov // Zhurnal rossijskogo prava. 2003. Vol. 11. –S.40.
[2] Gribanov V.P. Osushhestvlenie i zashhita grazhdanskih prav. Izd. 2-e, stereotip. –M., Statut, (Klassika rossijskoj civilistiki), 2001. –S.72.
[3] Kajl' Ja.Ja. Rossijskaja Federacija kak dolzhnik v objazatel'stva vsledstvie prichinenie vreda: Avtoref. diss. …kand. jurid. nauk. – Volgograd: 2005. –S.19.
[4] Popov V.V. Grazhdansko-pravovaja otvetstvennost' za vnedogovornyj vred, prichinennyj publichno-pravovymi obrazovanijami: Avtoref. diss. …kand. jurid. nauk. –M., 2002.
[5] Artjushin D.V. Problemy samozashhity v grazhdanskom prave Rossii // Vestnik Federal'nogo Arbitrazhnogo suda Zapadno-Sibirskogo okruga. 2004. Vol. 5.
[6] Shabunina I.S. Ponjatie i osobennosti vozniknovenija objazatel'stva vsledstvie prichinenija vreda: Avtoref. diss. …kand. jurid. nauk. –Kazan': 2004.
[7] Simvolokov O.A. Grazhdansko-pravovaja otvetstvennost' za narushenie objazatel'stv pri osushhestvlenii predprinimatel'skoj dejatel'nosti: diss. …kand. jurid. nauk. –Rjazan': 2002.
[8] Rybakov V.A. Problemy formirovanija grazhdansko-pravovoj aktivnosti. Voprosy teorii i praktiki. –Ufa: Izd-vo Ufimskoj VSh MVD RF, 1993. –S.141.
[9] Petrov I.N. Otvetstvennost' hozorganov za narushenija objazatel'stv. –M., Jurid.lit., 1974. –S.117.
[10] Hohlova G. Vzyskat' bez suda // Jezh-jurist. 2005. Vol. 40.