Direct actual damage in civil law. Direct actual damage. Direct actual damage to the employer in examples

If the shortage arose through the fault of the employee, then he is obliged to compensate the employer for the direct actual damage caused to him. Direct actual damage includes a real decrease in the employer's available property or deterioration in its condition, as well as the need for the employer to make expenses or unnecessary payments for the acquisition or restoration of property. The employee bears financial responsibility both for direct actual damage directly caused by him to the employer, and for damage that occurs to the employer as a result of compensation for damage to other persons.

Failure or improper performance by the entrepreneur-manager of his duties serves as the basis for early termination contract at the initiative of the owner. If material damage is caused to the enterprise as a result of irresponsibility or failure of the entrepreneur-manager to fulfill his duties, the owner has the right to demand compensation from him for damages in the amount of direct actual damage, which may be limited or recovered in full. In addition, the entrepreneur-manager bears financial liability in the full amount of damage caused to the enterprise through his fault in cases directly specified in the current legislation. At the same time, damage classified as a normal production and commercial risk is not subject to compensation. Specification of these questions has great value both for the entrepreneur-manager and for the owner.

In accordance with Article 237 Labor Code RF employee is obliged to compensate the employer for direct actual damage caused to him. The employee bears financial responsibility both for direct actual damage directly caused by him to the employer, and for damage incurred by the employer as a result of compensation for damage to other persons. Lost income (lost profits) cannot be recovered from the employee.

Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition or vrs-formation of property.

When determining the amount of damage, only direct actual damage is taken into account; lost income is not taken into account.

For damage caused to the enterprise during the performance of their job duties, employees through whose fault the damage was caused bear financial liability in the amount of direct actual damage, but not more than their average monthly earnings (Article 241 of the Labor Code of the Russian Federation).

The organization is obliged to prove the fact of causing direct actual damage, the illegality of the employee’s actions (inaction) and his guilt.

Only direct actual damage, consisting of loss or damage to property, additional expenses of the employer, for example, excessive payments, etc., is subject to compensation. Income not received by the employer is not included in the compensable damage.

Direct actual damage to the organization is a decrease in property or useful properties property due to damage, destruction or loss and the associated expenses of the organization for its restoration or acquisition. Direct actual damage also includes excessive payments to other persons due to misconduct employees of the organization.

Direct actual damage is subject to compensation by the employee in cases where his actions are recognized as illegal. The employee did not fulfill or improperly performed his labor duties, or violated a specific rule of law. This norm may be contained in the laws of the Russian Federation, presidential decrees, decrees of the Government of the Russian Federation, internal labor regulations, and other legal acts. Actions that violate the rules for the maintenance and operation of machines and mechanisms, storage and issuance of material assets, technological requirements and other technical standards, and also do not comply with the orders and instructions of the employer issued in accordance with current laws and within the limits of authority.

The administration is obliged to establish all the circumstances of the damage, including a) the amount of direct actual damage caused to the organization;

The administration cannot, by its order, compensate for damage in cases where the employee is responsible for this damage in full, and the damage exceeds his average monthly earnings. In such situations, such damage can be recovered from the employee only by a court decision. Judicial review also subject to a) claims by the administration against employees for compensation for direct actual damage in an amount not exceeding the average monthly earnings, if compensation cannot be made by order of the administration. Such situations arise most often in cases where an employee terminates an employment relationship with a given enterprise or when the administration misses the deadline for issuing an order; b) disputes between employees who disagree with the deduction made by the administration for damages or its amount, provided that the application was considered by the labor commission disputes - employees of organizations where there are no labor dispute commissions can go directly to the court. IN judicial procedure forced collection is carried out in cases where the administration, during the period of validity of the employment contract, issued an order to compensate for damage by deducting from the employee’s salary, but by the time of his dismissal the deductions had not been made in full or in part, and the salary due to the employee upon dismissal is insufficient to pay off the debt .

Workers and employees responsible for causing damage to the enterprise bear financial liability only if there is direct actual damage. It is not allowed to hold an employee financially liable for damage that arose as a result of a normal production and economic risk (1, part 1-2, paragraph 2).

Direct actual damage should, in particular, be understood as the loss, deterioration or decrease in the value of property, the need for an enterprise to incur costs for restoration, acquisition of property or other valuables, or to make excessive payments (12, paragraph 2, paragraph 4).

Direct actual damage is understood as a complete loss or decrease in the value of property, in connection with which the enterprise must incur costs for restoration, acquisition of new property or other valuables, or make excessive payments.

D.N. on officials are carried out in the presence of direct actual damage. The amount of damage is determined based on the actual losses of the association, enterprise, collective farm based on the book value (cost price) of damaged, lost, illegally written off material assets (minus depreciation), unreasonably overspent raw materials and supplies, costs of correcting defective products and poorly performed work. -

According to labor law, only direct actual damage is subject to compensation. This is such damage when the property of an enterprise (machines, tools, raw materials, semi-finished products, etc.) is lost, deteriorated or its value is reduced, and therefore there is a need to incur costs for restoration, acquisition of property or other valuables, or to make excessive payments. When determining the amount of damage, lost income is not taken into account.

Damage - in civil law unfavorable property consequences for the creditor arising as a result of an offense committed by the debtor. They are expressed in a decrease in property, or in the failure to receive income that would have been received in the absence of the offense (lost profits).

As a result negative impacts Hazardous phenomena (incidents), negative development trends, and irrational decisions made under conditions of uncertainty cause harm to individuals and organizations. Harm from incidents can be classified according to various criteria: degree of assessment, place and time of manifestation of consequences relative to the impact of negative factors, objects of influence of negative factors of incidents, type of unsatisfied needs of a person (organization) and the degree of influence on his safety, viability of organizations.

Direct damage is damage to health, property or property interests of objects that fell within the area of influence of the negative factors of the incident.

Indirect damage is losses, damages, lost profits that will be incurred by objects that do not fall within the area of the negative factors of the incident, but are caused by violations and changes in the existing structure of economic relations, infrastructure, as well as additional costs caused by the need to take measures to eliminate the consequences of the incident .

Indirect losses of an enterprise arise as a result of the inability to carry out its normal activities for some time. These include: lost profits, losses in the form of claims and suits due to failure to fulfill obligations to counterparties, loss of the organization’s image, costs of legal settlement of cases, etc. As practice shows, indirect losses are often many times larger than direct losses, i.e. the size of direct losses is just the tip of the iceberg.

Total damage is the sum of direct and indirect damage. Total damage is determined at a specific point in time and is intermediate compared to the total damage, which will be quantified in the long term.

Structure of damage determination

Damage from accidents on dangerous objects can be expressed in general view formula:

where is the total damage from accidents, rub.;

Direct losses of the organization operating a hazardous production facility, rub.;

Costs of localization (liquidation) and investigation of the accident, rub.;

Socio-economic losses (costs incurred as a result of death and injury to people), rub.;

Indirect damage, rub.;

Environmental damage (damage caused to environmental objects), rub.;

Losses from the retirement of labor resources as a result of the death of people or their loss of ability to work.

Direct losses, from accidents can be determined by the formula

Losses as a result of destruction (damage) of property, rub.

Costs of localization (liquidation) and investigation of the accident,, can be determined by the formula

, (5.3)

where are the costs associated with localizing and eliminating the consequences of the accident, rubles;

Expenses for accident investigation, rub.

Socio-economic losses,, can be defined as the amount of costs for compensation and measures due to the death of residents, and third parties, and (or) injury to personnel, and third parties:

Indirect damage, , due to accidents, it is recommended to define it as part of the income allocated for renting or purchasing housing for the period of repair or restoration of damaged housing:

where is damage from air pollution, rub.;

Damage from water pollution, rub.;

Damage from soil pollution, rub.;

Damage associated with the destruction of biological (including forests) resources, rubles;

Damage from contamination (damage) of the territory with debris (fragments) of buildings, structures, equipment, etc., rub.

The generalized structure of damage from accidents at hazardous production facilities is presented in Scheme 1 of Appendix 1 (RD 03-496-02).

Real damage is considered in civil law together with lost profits as part of the unifying concept of “losses”. Art. is dedicated to this concept. 15 Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation), according to which real damage includes:

Actual loss or damage to property.
Expenses that have already been incurred or will be incurred in connection with the event that caused the harm.

Compensation for losses should be distinguished from a new concept - compensation for losses (Article 406.1 of the Civil Code of the Russian Federation), which can be provided for by agreement of the parties in the event of any event (not only unlawful behavior of one of them).

Novella recent years is Art. 393.1 of the Civil Code of the Russian Federation, which provides for the recovery of the difference between the contract price and the price of the replacement product (real damage - costs of restoring the right) or the contract price and the current cost of the product (lost profits). This gives a general character to the rule on abstract losses, which previously existed in Art. 524 of the Civil Code of the Russian Federation for delivery only.

In addition, the interpretation of the rules is changing. Thus, in paragraph 84 of the resolution of the Plenum Supreme Court The Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) dated November 17, 2015 No. 50 expressly states that if the fact of damage is confirmed, its amount can be determined by the court based on considerations of reasonableness, even in the absence of exact data on the amount.

General subject of proof in a claim for real damages

When filing a claim for actual damages, you will need to prove:

The fact of the actions (inaction) of the causer. As the Supreme Court of the Russian Federation indicated, this may include not only a violation of a subjective right (i.e. causing harm in the manner of a common tort, Article 1064 of the Civil Code of the Russian Federation), but also a violation of rights of obligation (determination of the Supreme Court of the Russian Federation dated December 4, 2012 No. 18- KG12-70).
There is a causal connection between the act and the consequences. Such a connection is assumed if the consequences are normal for this type of obligation (determination of the RF Supreme Court dated March 31, 2016 No. 09-ES15-16713 in case No. A50-4524/2013).
Amount of damage. For example, in the form of the difference between the price under the contract and the price of the replacement product (Article 524 of the Civil Code of the Russian Federation, determination of the Supreme Court of the Russian Federation dated December 6, 2016 No. 309-ES16-17128 in case No. A07-20958/2015).
The presence of guilt of the causer or grounds for innocent liability ( useful information this is discussed in the article What is the presumption of guilt?).

Our article is devoted mainly to the 3rd group of facts. However, it will be important to prove the 1st, 2nd and 4th circumstances. Without this, satisfying the claim even with a proven amount of damage becomes impossible.

Loss of property as an element of real damage

When recovering the value of lost property, the subject of proving actual damage under the Civil Code of the Russian Federation is divided into 2 parts:

Proving the existence of this property, the transfer of property to the tortfeasor (if this occurred).
It can be carried out by submitting documents confirming its acquisition and transfer to the defendant (transfer and acceptance certificates, invoices). The assessment of evidence is the prerogative of the court. Thus, in one of the cases, the court rejected the claim, since the fact that the defendant had property in the context of a corporate conflict was confirmed exclusively by individual testimony (resolution of the AS SKO dated August 10, 2016 No. F08-5133/2016 in case No. A32-27768/ 2015).
Proof of the value of lost property (the actual amount of damage). Can be confirmed by documents on the basis of which the property was acquired. For example, invoices (see resolution of the Supreme Court of the Russian Federation dated April 20, 2015 No. F01-980/2015 in case No. A28-3810/2014), certificates of book value, appraiser’s conclusion, etc.

Decrease in property value as an element of real damage

Assessing the decrease in value due to harm caused is significant complexity, so it is advisable to carry it out by an appraiser.

To make a claim for damages in the form of depreciation of the value of property, it does not matter whether it was sold to the victim or remains in his ownership (clause 13 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25). The size of the reduction can be determined, among other things, as the difference between the sale price of damaged property and the price of new property (determination of the RF Armed Forces dated July 19, 2016 No. 59-KG16-9).

When making a claim for the value of the reduction, you should take into account some of the consequences of its presentation on the overall amount of damages. Thus, in one of the cases, the court, having recovered the reduction in value, refused to recover expenses in the form of interest paid for the use of credit funds, indicating that the plaintiff’s rights were restored (resolution of the AS SZO dated 06.06.2016 No. F07-745/2016 in case No. A56- 41511/2014).

Expenses for restoration of rights as an element of real damage

The costs of restoring the situation of the victim must be confirmed by calculation, and, if necessary, by calculation (estimate) and expert opinion (determination of the RF Armed Forces dated February 16, 1999 No. 5-B99pr-37). These costs include:

Actual costs incurred to repair damage. Here the cost of replacement goods (Article 393.1 of the Civil Code of the Russian Federation) and the work performed is subject to recovery. However, the defendant has the right to prove that if a more reasonable and common method of eliminating harm had been used, the costs would have been lower, in which case the compensation will be reduced (clause 13 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25).
Future costs of restoring rights. For example, in a situation where a plot of land was lost, the court recovered its value, determined by expert means (resolution of the AS SZO dated May 24, 2016 No. F07-1460/2016 in case No. A13-8647/2015). In another case, the expert opinion estimated the cost refurbishment(Resolution of the Supreme Court of the Russian Federation dated May 18, 2016 No. F01-1147/2016 in case No. A43-4443/2015).

Costs associated with restoration of rights, as an element of real damage

In addition, other costs associated with the restoration of rights may be collected:

the cost of control and regulatory work on railway transport, since their implementation during repairs is mandatory (Resolution of the AS SZO dated December 13, 2016 No. F07-11244/2016 in case No. A56-6664/2016);
costs of examination, payment for services emergency commissioners(determination of the Supreme Court of the Russian Federation dated April 28, 2015 No. 18-KG15-45);
legal expenses for a representative (the most vague category, since they are collected “in a reasonable amount”), payment for an examination.

In each case, the court evaluates the legality of filing a claim for direct damages. Thus, in one of the cases, it was refused to recover damages caused to the owner by a change in use land plot, in the amount of the market value of the land plot with the previous purpose (resolution of the AS SZO dated December 8, 2016 No. F07-10877/2016 in case No. A56-91016/2015).

In addition, the attribution of costs to the restoration of rights is considered. Thus, in one of the cases, the court considered the costs of preparing a claim, consultations and participation of a representative in checking the quality of the goods, an independent examination, and carrying out work on diagnosing and disassembling the gearbox ( appellate ruling Sverdlovsk Regional Court dated July 28, 2016 in case No. 33-13233/2016).

Let's consider some situations.

Real damage as a result of an accident includes loss of marketable value

As a rule, the need for such a recovery arises when the amount of compensation paid by the insurance company under the MTPL policy is not enough to cover the actual damage. Based on Art. 1072 of the Civil Code of the Russian Federation, a person who has insured his liability voluntarily or compulsory insurance in favor of the victim, in case of insufficient insurance payments, is obliged to compensate the difference between the insurance compensation and the actual amount of damage.

To determine the actual damage in an accident, the following are taken into account:

The cost of restoration repairs, as well as the difference between the paid insurance compensation and the actual costs (determination of the RF Armed Forces dated July 5, 2016 No. 88-KG16-3).
Loss commodity value(UTS). This controversial issue often comes up in practice, because insurance companies sometimes they refuse to pay it (see resolution of the AS SZO dated June 22, 2016 No. F07-3482/2016 in case No. A42-1951/2015).
Instead of the vehicle tax, you can submit for collection the difference between the residual value and the real market value of the car without damage (determination of the RF Armed Forces dated July 19, 2016 No. 59-KG16-9).

Actual damage as a consequence of breach of contractual obligation

Unlike tortious liability, regulated by the norms of the Civil Code of the Russian Federation, liability resulting from a breach of obligation is also determined by the terms of the agreement of the parties. Such a document or law may establish restrictions on the recovery of damages (Articles 394, 400 of the Civil Code of the Russian Federation). For example, the contract may provide that losses cannot be recovered in excess of the penalty (exceptional penalty).

IMPORTANT! If there are no restrictions, real damage is proven by general rules.

For example, in paragraphs. 3.1, 3.6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 17 states that the real damage of the lessor may include:
- costs for dismantling, return, transportation, storage, repair and sale of the leased asset;
- fee for early return a loan received by the lessor for the purchase of the leased asset.
In addition to documents confirming actual expenses, it is acceptable to use the appraiser's opinion. Thus, in one of the cases, the cost of eliminating deficiencies in the contractor’s work was proven in this way (see the resolution of the AS SKO dated October 5, 2016 No. F08-7213/2016 in case No. A32-12848/2015).

Recovery of real damage by way of recourse: some features

In accordance with Art. 1081, 1082 of the Civil Code of the Russian Federation, the person who paid the compensation has the right of recourse (reverse claim) against the causer in the amount of the compensation paid, including in order to recover damages. For example, such losses are payments made by the consumer in the event of the sale of a product with defects that arose through the fault of the manufacturer. Actual damages include all payments directly related to defects, for example:
- cost of goods;
- reimbursement of expenses for examination of product quality;
- compensation for moral damage caused due to the properties of the goods (resolution of the Arbitration Court of the Moscow Region dated June 24, 2015 No. F05-7322/2015 in case No. A40-148183/14).
However, expenses caused by the actions of the seller who paid compensation to the consumer cannot be recovered through recourse:
- fine;
- legal expenses;
- compensation for moral damage caused by the actions of the seller himself, and not his supplier or manufacturer, against whom a recourse claim has been filed (see the resolution of the Federal Antimonopoly Service of the Moscow Region dated May 31, 2012 in case No. A40-95361/11-118-750).
Compensation for property damage due to unlawful actions of a bailiff

If harm is caused as a result of the actions of the bailiff, Art. 1064 of the Civil Code of the Russian Federation, as well as Art. 19 of the Law “On Bailiffs” dated July 21, 1997 No. 118-FZ, Art. 119 of the Law “On enforcement proceedings» dated 02.10.2007 No. 229-FZ.

The subject of proof in such cases is determined according to general rules. This is indicated in paragraph 82 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On the application of legislation by courts...” dated November 17, 2015 No. 50. As a rule, a fact illegal actions(inaction) is preliminary (before filing a claim for damage) checked in court. If there is a decision that has entered into legal force, it is possible to go to court to claim actual damages.

For example, in one of the cases court of cassation satisfied the creditor's request to recover direct damage from the FSSP of the Russian Federation in the amount of the value of the debtor's property, from which the bailiff had unlawfully lifted the arrest (resolution of the AS SZO dated July 21, 2016 No. F07-4981/2016 in case No. A21-5004/2015).

Recovery of damage caused by an offense (including a crime)

A claim for compensation for damage caused by a crime can be made as part of a criminal proceeding or separately. In case of committing administrative offense- only separately, in civil law.

In this situation, the unlawfulness of the act of the harm-doer has been proven by a judicial or administrative act that has entered into legal force. Thus, it is necessary to prove the existence of a cause-and-effect relationship and the amount of damages, including direct damages.

The following case can be cited as an example. The value of the land plot, estimated by an expert, the right to which the organization lost due to his fault, was recovered from the former manager. The court considered that in this case there is damage in the form of expenses that the plaintiff must incur to restore the violated right (resolution of the AS SZO dated May 24, 2016 No. F07-1460/2016 in case No. A13-8647/2015).

So, depending on the circumstances of a particular case, actual damage may include the value of lost property, as well as the costs of restoring the property status of the person who was harmed. Their list is assessed by the court from the point of view of the principles of full and fair compensation for damage.

Labor legislation establishes that the employee is obliged to compensate for direct actual damage to the employer. But what should be understood as direct actual damage, and what does not apply to it?

Part 1 of Article 238 of the Labor Code of the Russian Federation establishes that the employee is obliged to compensate the employer for direct actual damage caused to him.

The second part of this article says that direct property damage must be understood as:

a real decrease in the employer’s available property or deterioration in the condition of the said property;
a real decrease in the available property of third parties or deterioration in the condition of the property of third parties, if the said property was with the employer and he was responsible for the safety of this property);
costs or excessive payments for the acquisition or restoration of property;
costs or excessive payments to compensate for damage caused by the employee to third parties.

Rostrud in its letter dated October 19, 2006 No. 1746-6-1 “On the financial liability of employees of an organization” refers to direct actual damage:

lack of monetary or property values;
damage to materials and equipment;
expenses for repairing damaged property;
payments for forced absence or downtime;

The income lost by the employer (lost profits) does not count as direct actual damage.

Direct actual damage to the employer in examples

I propose to consider two examples, from which it will become clear what should be understood as direct actual damage that the employee causes and is obliged to compensate.

While demonstrating a tablet, a salesperson at a hardware store dropped it on the floor and broke it. The cost of the tablet in the store is 25,000.

Option one.
As a result of the fall, the tablet received severe mechanical damage and cannot be restored. The employer obliges the employee to compensate damage in the amount of 25,000 rubles, i.e. the full cost of its sale in the store. At the same time, the store purchased tablets in batches for 17,000 rubles apiece. Thus, direct actual damage to the store is 17,000 rubles. The difference between the retail price of 25,000 and the purchase price of 17,000 is 8,000 rubles. This is the store’s benefit from the sale of the tablet, which was not received due to its breakdown and which cannot be recovered from the employee.

Option two.
As a result of the fall, the tablet received minor mechanical damage and was repaired for 5,000 rubles, after which it was successfully sold. In this case, the employer also cannot recover the cost of the broken tablet from the employee. The direct actual damage to him will be the funds spent on repairs, i.e. 5000 rubles.

A fire inspector conducts an inspection of the organization. During the inspection, violations of requirements were identified fire safety: the width of doorways and corridors is insufficient, the fire exit is barricaded with a barrel of gasoline, all fire extinguishers are empty. Based on the results of the inspection, the legal entity was brought to administrative responsibility in the form of a fine.

The employer has an employee whose job responsibilities include ensuring fire safety in the organization. The employer obliges the employee to reimburse the fine in full.

In this case, the employer is wrong. It is impossible to recover the entire amount of the fine from the employee. Yes, the fact of improper performance by the employee job responsibilities took place. And partly, bringing the employer to administrative liability was due to the fault of the employee. However, the employee cannot be blamed for the insufficient width of the doorways and corridor: he did not design and build the building. But shortcomings in the fire exit and fire extinguishing equipment became possible due to the fault of the employee.

Another question is how to isolate from the amount of the fine that part that relates to violations due to the fault of the employee and is direct actual damage? Judicial practice on the collection of fines imposed on legal entities for the actions of workers, very ambiguous. I hope that it will be suitable as an example for the issue under consideration.

To sum it up
Compensating direct actual damage to the employer is the employee’s obligation established by current legislation. However, when the question of compensation for damage arises, it is necessary to carefully look at whether the employee is compensating for the actual damage caused or the employer is trying to recover from him lost benefits or something else.

03.09.2019

Causing material (or reputational, but resulting in material) damage to the employer is one of the most important aspects of modern Russian legislation.

Only having a clear definition of such an act in hand can one bring the offender to criminal administrative responsibility, or impose any other sanctions on him within the framework of the current norms of the law.

Of course, the very fact of such an act must be fully justified - this is another reason for introducing formal definitions of damage to the employer.

In practice, a distinction is made between direct and indirect damage incurred, although the line between them is sometimes quite difficult to establish. Let's look at these concepts in more detail.

What is this concept?

Direct actual damage to the employer is the definition for any costs associated with the deterioration of the employer's property due to the conscious and purposeful actions of the employee.

Such costs include both a sharp decrease in the residual value of the property and payments necessary to compensate for such a decrease.

How is it different from indirect?

The line between direct actual and indirect passes through the already mentioned degree of malicious intent of the employee when he causes damage to the employer.

In many cases, it turns out to be either completely impossible to assess this parameter, or this assessment will contain a fair amount of subjectivity.

In the case where, in carrying out his actions, the employee clearly did not intend to harm his boss in one way or another, the consequences can be qualified as indirect damage.

Examples

Examples of direct damage include:

Deliberate damage or destruction of equipment.
Deliberately causing harm to fixed assets on the organization's balance sheet (buildings, structures, economic facilities, etc.).
Damage or destruction of valuable intangible assets.
Deliberate disregard for safety precautions and operational standards and labor discipline standards, carried out with the aim of causing damage (so-called “sabotage”).
Conscious avoidance of one's own official duties with the same sabotage purpose.