THE LEGAL REGULATION OF COMPENSATING FOR NON-PROPERTY DAMAGE CAUSED TO BUSINESS ENTITY (FORMULATION OF PROBLEM)
Journal Title: Право та інновації - Year 2016, Vol 2, Issue 14
Abstract
Problem setting. Recently, due to the increased number of appeals to the courts from individuals and organizations, lawyers are facing uncertainty in the application of law that protect the intangible assets of legal entities. Regarding legal entities legislator mentioned only laconic phrase about moral damage, which is the humiliation of business reputation of person or entity. Although this standart formulated in p. 4. 23 of the Civil Code of Ukraine (hereinafter – the Civil Code of Ukraine), but in fact it has not received the necessary development based on law enforcement. Analysis of recent researches and publications. These issues were researched by such outstanding scientists as P. M. Rabinovich, V. V. Lutz, G. V. Eremenko, Ya. O. Zavoyura, Yu. O. Zaika, T. Karnaukh, V. P. Paliyuk, S. A. Belyatskin, V. Lapitskyy and others, which indicates its urgency. The target of research article is to research permissibility of compensating for non-property damage caused to business entity, the concept of non-property damage and criteria for bringing to economic responsibility in the event of non- property damage caused to business entity and their consolidation at the legislative level. Article’s main body. The problem of protection non-property damage caused to business entity have activated according to recent development of the information society and the appearance of new media, new ways and means of sharing information. While considering this problem it is difficult to identify a clearly formulated approach because in fact the arguments offered in the literature and jurisprudence may all be reduced to the fact that in the context of Art.23 of the Civil Code of Ukraine compensation for moral damage caused to legal entity is impossible, since it will be more correct to use the term «non-property damage.» Determining the moral damage through physical and mental suffering, Article 23 of the Civil Code of Ukraine clearly reads that it applies exclusively to individuals [1]. A legal entity, as an organization is not able to feel any pain, because it is clear that a criterion for moral damages as «physical pain and mental suffering» is not inherent to entity. But paragraph 4 of this article provides that moral damage is also in damage to business repute of an individual or entity that is also called «goodwill». The term «business reputation of the legal entity,» as opposed to «business reputation of an individual», is quite complex. Legislation does not define term «goodwill», because it is a «moral and ethical category and at the same time non-property right which the law considers as an independent object of judicial protection» in accordance with paragraph 4 of Regulation №1 « On the judicial practice in cases on protection of honor and dignity of the individual and business reputation of individual and legal entity» by Plenary Session of the Supreme Court of Ukraine of February 27, 2009 [5]. But paragraph 5 of part 2 of Information letter №01–8 / 184 by the Supreme Comercial Court of Ukraine (hereinafter – SCCU) «About some issues of the practice of commercial courts in legislation of information» of March 28, 2007 interpreted that reputation of legal entity is a prestige brand (commercial) names, trademarks and other intangible assets of legal entity among consumers of goods and services. Conclusions and prospects for the development. Thus, after alteration of paragraph 4 Part 2 Article 23 of the Civil Code of Ukraine by adoption of the Law of Ukraine «On Amendments to the Civil Code of Ukraine at to the right to information» of December 22, 2005, the emphasis has shifted from discussing the possibility of compensation for moral damage to the legal entity to the issue of economic legal responsibility for non-property damage caused to business entity
Authors and Affiliations
YA. O. KUTSENKO
Keywords
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