Supreme Civil SSUU, Case No. 26972 11.11.2008
In recent years the figure of the damage has written important existential moments, ranging from fertile and barren land, between those for and against, conferences and books, emotions and fears.
In particular, it was doubtful what should be understood by category existential damage, also was not clear whether that figure, even if any, could be combined with the biological damage (as a violation of the right to health, art. 32 Cost .) and non-pecuniary damage (defined traditionally as a transient psychological disturbance).
Finally, with a firm stance, the United Sections argued that the non-pecuniary damage, art. 2059 cc, can not be divided into different items for damages, but must be viewed as essentially unique.
The position of the United Sections Sections
United deal, a professed former, the issue in question.
First, art. 2059 cc to be completed with the structural elements of art. 2043 cc
Then, there are assumptions encoded in non-pecuniary damages in connection with the compromise of personal values \u200b\u200b(Article 2 1. No 117/199), damages resulting from the deprivation of liberty caused by the exercise of judicial functions; Article 29, paragraph 9, 1. No 675/1996; use of illegal procedures in the collection of personal data; art. 44, paragraph 7 of Legislative Decree no. 286/1998, the adoption of acts of discrimination on racial, ethnic or religious art. 2 1. No 89/2001; failure to comply with the reasonable time duration of the process).
Outside of the cases determined by law, by virtue of principle of minimum protection for damages due to inviolable constitutional rights, the protection is extended to cases of non-pecuniary damage produced by lesion of the inviolable rights of the person recognized by the Constitution.
a result of this extension is due in art. Ce 2059, damage from injury inviolable right to health (art. 32 of the Constitution) called biological damage, which is given by the Articles. 138 and 139 of Legislative Decree no. 209/2005, specific legal definition (Judgement No. 15022/2005, No. 23918/2006). Previously, as is known, the protection of biological damage was instead preparing through the bond between the art. 2043 EC and Art. 32 of the Constitution (as held by Constitutional Court. No 184/1986) to avoid the limit imposed by art. Ce 2059, pursuant to which might well have been from the outset to find a place (as held by the subsequent ruling of the Court No 372/1994 for the biological physical or psychological harm suffered by the victim's primary joint).
Find appropriate place in the norm, even the protection afforded to those who have seen the inviolable rights of the affected family (Articles 2, 29 and 30 of the Constitution) (Judgement No. 8827 and No. 8828/2003, concerning the case of damage loss or impairment of the parental relationship in the case of death or cause serious disability of a spouse [1] ).
same happened to it to damage resulting from the invasion of the reputation, image, name, to privacy, the inviolable rights of the person recorded in his dignity, preserved by the Articles. 2:03 GC (Judgement No. 25157/2008).
Outside of these cases, the formulation can obtain compensation for the non-pecuniary damage, but only if it is found that the infringement of a person's inviolable right: there must be an injustice constitutionally qualified [2] . Therefore, not all lessons can be compensated to the person or any non-pecuniary bias, but only those who make unjust constitutionally qualified.
should be abandoned subcategories existential damage [3] and material damage [4] , because you just check the damage to the inviolable rights of the person; also read that the interpreter must follow is that of art. 2059 cc with inviolable constitutional rights, which are not intended as an exhaustive list: the protection is not restricted to cases of inviolable rights of the person expressly recognized by the Constitution in this historical moment, but, by virtue of the opening article. 2 of the Constitution to an evolutionary process, the interpreter must be considered possible to infer from the overall constitutional system indexes that are appropriate to assess whether new emerging interest in social reality are not generally relevant for the sort, but doing is constitutional positions inviolable of human [5] . The CD
existential injury is therefore compensable only to the extent constitutionally qualified marked by the injustice of the event of damage. If there is no infringement of constitutionally inviolable rights of the person is not given compensation claims.
The seriousness of the offense is additional requirement for admission to non-pecuniary damages resulting from the injury to the person's constitutional rights inviolable. The law must be recorded over a certain threshold, causing a serious injury. The injury must exceed a certain threshold of offensiveness, making the injury so serious as to be worthy of protection in a system that imposes a minimum degree of tolerance [6] . The filter
the severity of the injury and the seriousness of the mistake through the balance between the principle of solidarity with the victim, and that of tolerance, with the result that the non-pecuniary damages is payable only if the level is exceeded tolerability and the injury is not futile. Prejudices characterized by futility [7] each person listed in the complex social context must accept them under the duty of toleration requires that cohabitation (Article 2 of the Constitution).
Both requirements must be confirmed by the court according to the parameter constituted by the social consciousness in a particular historical moment.
From the beginning of the necessary recognition to the inviolable rights of the person [8] , the minimum protection consists of the compensation, it follows that the lesion of the inviolable rights of the person who has given a non-pecuniary damage includes the obligation to compensate the damage , whatever the source of liability, contract or tort.
If the breach of the obligation shall, in addition to the breach of the obligations of economic employed under the contract, including the infringement of a person's inviolable right of the creditor, the protection of non-pecuniary damages can be paid in the action of responsibility contract, without recourse to the expedient cumulation of actions. What
non-pecuniary interests may be relevant in the context of contractual obligations, is confirmed by the provision of Article. Ce 1174, according to which the provision was the subject of the obligation must be capable of economic assessment and should correspond to an interest, whether or not capital, of the creditor.
The identification, in relation to the specific case of contract, including interest in the contract that, in addition to those in financial content, present a non-asset, should be conducted to ascertain the cause of the actual shop, to be understood as a synthesis of the real interests that the contract is intended to establish, beyond model, even typical, used, summary, and then concrete reason, the dynamics of contract.
Even in non-pecuniary damage can merge the logical scheme compensation ex art. 1223 cc, so that in this matter must keep in mind is the loss, as the non-utility [9] .
As for the complicated issue of damages thanatological [10] inherent all'irrisarcibilità the damage from instant death, which assumes a weak point in the compensation system (because it threatened to leave no legal protection merely because the victim of is not spent an appreciable period of time between injury and death, reducing considerably the possibilities for compensation), arriving at the solution that is unconstitutional and paradoxical punished more severely aggravated by the injury death compared to the so-called direct and immediate death, the Supreme Court stated that the court may instead recognize and properly settling the only material damage, a refreshment of mental suffering experienced by the victim of physical injury, which is followed shortly thereafter the death, which has been polished during the agony of waiting in conscious end. Is avoided given the lack of protection by the law that denies the legitimacy, in the case of immediate death or damaging event occurred a short distance, damages for loss of biological life and admits to the loss of health only if the individual has been alive for a considerable time, which defines man. One such mental suffering, even if the maximum intensity of life contained, they are not likely, because of the limited time interval between injury and death, to degenerate into disorder and result in biological damage, it should be compensated as moral damages, in its new broadest sense. Reflections
short hot
The joint sections indicate the way forward in the field of personal injury and there is, indeed, a certain openness in favor of the human person and of its dynamic and relational aspects, but it is treated to a new place : it has gone from existential damage, as a category, injustice constitutionally qualified.
There is, necessarily, a deminutio of protection, but a perspective different: there is more than one category, but a series of damages related to injuries of the inviolable rights of the human person, to check and read from time to time, through a combined reading of Article. 2059 cc with Groundnorm.
If, otherwise, had been accepted at the prospect that he wanted to confirm the category of existential damage would run the risk, according to the Court, to bring the art. 2059 cc, which is a typical character, nell'atipicità distinctive art. 2043 cc, id est, the existential damage could not be recognized because not typical, in contrast to the letter of the same Article. Since Article 2059 cc
. 2059 cc is typical, then, can be connected with Article standards (such as the Constitution) and not with the category of existential damage, which did not present the characteristics of the breed.
protection, then it is extended to a creditor injured after a failure because it will also benefit the non-pecuniary damages, through the exaltation of art. 1174 [11] cc (non-pecuniary interest on the CD), without having to act as a tort action in combination with the contract, because we must guarantee at least the remedy in compensation cases of injury of the inviolable rights of the human person (otherwise, there would be a weak point in art. 24 of the Constitution); interesting application of Article. 1223 [12] cc to non-pecuniary damage, with the result that should be compensated not only the loss but also loss of earnings: in the event of biological damage, for example, you should not consider only the loss of a part of the body, but also lost profits arising from such loss (forced renunciations to be with their children, play with them or stay with his wife, driving, etc..), as long as identified in the Constitution, accepting too extensive argument for on the general clause of Article. 2 of the Constitution
0 comments:
Post a Comment