The problem of defining moral damage caused to the employee

Olga Panchenko
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Abstract

Compensation for moral damage is one of the rights guaranteed by the Basic Law of Ukraine; reimbursement of this type of harm is one of the ways to protect labor rights as well. One of the main problems at the moment is the absence of the enshrined concept of moral damage in the Constitution and the Civil Code of Ukraine (this institution is of a civil law nature). Consequently, the aim of the Article is to consider how foreign and domestic scientists approach the term “moral damage” in general and in labor relations in particular and to provide our own definition of this category. The following methods were used when preparing the Article: dialectical, monographic, historical, normative and dogmatic, sociological, legal modeling. Research results. The origin of the term “moral damage” in the world practice and in our country has been investigated. It has been examined, what is moral damage in Ukrainian legislation, as well as in the legal instruments of some other States (Italy, Philippines, El Salvador, Kazakhstan, UAE). The approaches to the concept of moral damage in general and in labor relations in particular have been studied based on the works of foreign and Ukrainian researchers, relevant legal acts of our and other countries, court practice. It has been established that there are three approaches to defining the term of moral (non-property) damage caused to an individual in the theory of civil law. We agree with the opinion by researchers who believe that the fact of establishing moral, mental or physical suffering is not enough – it is necessary to have losses of non-pecuniary nature or negative consequences of a moral or other character. The author’s definition of moral damage as well as moral damage caused to the employee as a result of violation of his (her) labor rights has been proposed.
界定对雇员造成的精神损害的问题
精神损害赔偿是《乌克兰基本法》保障的权利之一;赔偿此类损害也是保护劳动权利的途径之一。目前的主要问题之一是《乌克兰宪法》和《乌克兰民法典》中没有精神损害赔偿的概念(该制度具有民法性质)。因此,本文的目的是研究国内外科学家如何看待 "精神损害 "一词,特别是在劳动关系中,并提供我们自己对这一类别的定义。在撰写本文时使用了以下方法:辩证法、专题法、历史法、规范和教条法、社会学、法 律模型法。研究成果。对 "精神损害 "一词在世界和我国的起源进行了调查。研究了乌克兰立法以及其他一些国家(意大利、菲律宾、萨尔瓦多、哈萨克斯坦、阿联酋)的法律文书中的精神损害。根据外国和乌克兰研究人员的著作、我国和其他国家的相关法律文书以及法院实践,研究了一般精神损害概念的处理方法,特别是在劳动关系中的处理方法。研究表明,在民法理论中,对个人造成的精神(非财产)损害有三种定义方法。我们同意一些研究者的观点,他们认为仅仅确定精神、心理或身体上的痛苦是不够的,还必须有非金钱性质的损失或道德或其他性质的负面后果。作者提出了精神损害以及因侵犯雇员劳动权利而对其造成的精神损害的定义。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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