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PRINCIPLE OF FULL COMPENSATION IN TORT LAW

M. I. Inozemtsev, S. K. Stepanov

Abstract

In the present article are examined issues of the amount of compensated harm under the traditional approach to tort law, analyzed functions of tort law, defined some regularities: traditional (continental) approach prefers the function of compensation in tort law, while economic analysis approach is based on the function of prevention. Hereby amount of harm subject to compensation directly depends on the function of tort law to which the lawmaker gives priority. Considering modern trend of derogation from compensation function, legal concepts focused on prevention from commitment of wrongdoing, i.e. performing functions of prevention and “deterrence”, are more and more often fixed at the legislative level. In this context were examined “punitive damages” awarded in cases when profit can possibly be deprived by the wrongdoer. In the course of the study, the authors used the dialectical method of cognition. Within its framework were used general scientific methods: formal logical, structural and system-functional methods. Widely used special methods of legal knowledge: comparative, logical, methods of grammatical and systematic interpretation of legal rules, historical and formal methods of cognition. Defining legal nature of “punitive damages”, authors conclude that the specified category can be used to a limited extent. Main arguments against awarding “punitive damages” are analysed. It is pointed that “punitive damages” are de-facto used as criminal sanction of defendant given that he is deprived of guarantees afforded to defendants in criminal cases, f.e. “preponderance of evidence” standard used is lower that “beyond reasonable doubt” standard. Features of Russian tort law from the perspective of this topic are examined.

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DOI resolver: doi.org/10.5593/sgemsocialF2018/1.6/S02.035

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