VALIDITY OF THE USE OF PRESUMPTIVE MORAL DAMAGE BY EXPERT PSYCHOLOGISTS

УДК 159.99 PDF

DOI 10.37566/2707-6849-2020-3(32)-15

Margarita ZHURAVLEVA,

forensic expert, head of the department of psychological and other research of the Odessa Research Institute forensic examinations of the Ministry of Justice of Ukraine, teacher-trainer of the Odessa regional branch of NSSU, Lecturer, Department of Criminology and Psychology, Odessa State University of Internal Affairs, candidate of psychological sciences

VALIDITY OF THE USE OF PRESUMPTIVE MORAL DAMAGE BY EXPERT PSYCHOLOGISTS

The purpose of the article is to consider the scientific validity and legal viability of the use of presumed (average) damage proposed by Mr. Erdelevsky A.N. The presumed moral damage continues to be the basis on which the expert psychologists of Ukraine conclude the amount of a personal moral injury. The authors of the article consider this approach unreasonable, unscientific, and erroneous.

The appearance of presumed harm was conditioned by Mr. Erdelevsky’s view on justice, which should take place: average justice for an average person. The authors of the article believe that the rationality and justice principle in the legislation of Ukraine has a different meaning, namely: a reasonable and fair solution approach in a specific particular case of causing moral damage.The article considers and analyze the facts demonstrating the irrelevant use of presumed damage in the Ukrainian legal space:

1) Mr. Erdelevsky’s approach is opposed (antagonistic) to the Ukrainian legislation since the author determined certain average damage (presumptive) indicators, however the Ukrainian lawmaker refused regulating the clear amount of compensation and has provided this right to the Court. Meanwhile, the fact that the average compensation amounts are not established by the Ukrainian legislation demonstrates the current position of the legislator in regard to this issue.

2) Mr. Erdelevsky’s attitude was accepted neither by the lawmakers nor by the judicial system of Ukraine and Russia. At the same time, the author himself never talked about the practical nature of his formula, he did not insist on its efficiency exactly in such a form, did not offer its implementation to psychologists. Presumptive damage was developed by the author on the basis of analysis of the Criminal Code of the Russian Federation as a theoretical proposal for the Supreme Court of the Russian Federation, therefore, its application is outrageously unwarranted with respect to the legislation and fundamentally wrong.

3) At his own discretion, very approximately, without any psychological education, Mr. Erdelevsky A.N. supposes (or thinks up) the cases where the suffering of a person is analogous. The author is very free to interpret the legislation of the Russian Federation. In one case, he takes the Criminal Code and the degree of punishment established in it as a basis, in the other he independently decides to depart from the Criminal Code article and increase the amount of compensation for presumptive damage.

The methodology, which appeared in 2019 in the Register of methods for conducting forensic examinations of the Ministry of Justice of Ukraine under number 14.1.75, in imitation of Mr. Erdelevsky A.N., suggests the use of presumptive damage, but does not contain any justification for its use.

The article substantiates the proposal to solve the problem of establishing an indicative amount of compensation for the moral suffering of a person, taking into account only psychological components and using exclusively qualitative criteria for analysis.

Keywords: moral damage, presumptive damage, compensation, suffering, sequence of expert actions.

References

Paliyuk V. P. Compensation for moral (non-property) damage: monograph. 2nd edition, rev. and exp. Кyiv: Pravo [Law], 2000. 272 p. [ukr.]

Erdelevsky A. M. Compensation for moral damage: analysis and commentary of legislation and judicial practice. 3d edition, rev. and exp. Moscow: Wolters Kluwer, 2004. 320 p. [russ.]

Civil code of Ukraine / Verkhovna Rada of Ukraine. URL: https://zakon.rada.gov.ua/laws/show/435-15 [ukr.]

Code of Civil Procedure of Ukraine / Verkhovna Rada of Ukraine. URL: https://zakon.rada.gov.ua/laws/show/1618-15 [ukr.]

Zhuravleva M. O. Methodological foundations of the study of moral damage. Forensics and judicial examination: interagency scientific and methodical collection / Kiev SRI of Forensics; ed. board: O. G. Rubin (chief ed.) and others. Кyiv, 2017. Ed. 62. P. 448–452. [ukr.]