Damage fee

The human person is the fundamental value of modern legal systems, and its fulfilment is the goal of all societies.

The Fundamental Law declares the protection of human personality in general, and leaves it to other laws to draw up detailed rules in relation to specific areas of law (such as criminal law, civil law). According to Article XX(1) of the Fundamental Law "everyone has the right to physical and mental health", which includes the right to live a life worthy of a human being, free from pain and suffering.

Personality rights are complex and difficult to typify, as they depend to a large extent on the subject of the person. Consequently, the law gives personality rights general protection, since there is no numerus clausus for rights relating to the person, and it is therefore impossible to list them in a taxonomy. Accordingly, Article 2:42 of the Civil Code lays down a general rule that 'everyone has the right to freely assert his personality within the limits of the law and the rights of others, and to be free from any obstacles to this. Human dignity and the individual rights that flow from it must be respected by all. Personal rights are protected by this law."

Whether you suffer personal injury in an accident at work or in a traffic accident, your right to person (right to physical and mental health) is violated. You may ask yourself the following questions: can the physical disfigurement or loss of enjoyment of life resulting from the violation of your right to person be compensated at all? Is there a monetary compensation for the physical or mental harm suffered?

Damages awards as a civil sanction for infringement of personal rights

Pursuant to Article 2:52 of the Civil Code: ' A person whose personal rights have been infringed may claim damages for the non-material damage suffered. The conditions for the obligation to pay damages, in particular the determination of the person liable to pay damages and the method of compensation, shall be governed by the rules of liability for damages, with the proviso that no proof of the occurrence of a loss other than the fact of the infringement is required in order to be entitled to damages."

The damage fee is a sanction for the violation of the right to privacy, it cannot be linked to external features, these are unnecessary and arbitrary conditions.

Obviously, an infringement of a person's rights cannot be expressed in monetary terms, but this does not mean that a claim cannot be brought under this heading.

Compensation for loss of enjoyment of life as a functional solution is the most tenable in relation to the legal instrument. It is clear that personal injury cannot be repaired. Compensation must therefore be given a meaning in relation to this institution that seeks to make life easier for the victim. In fact, the notion of lost enjoyment of life implies the possibilities that the injured party has lost or will lose as a result of the infringement.

Compensation for pecuniary loss is a broader category than compensation, as it includes, in addition to the elimination of the harm caused by the infringement, the elimination, or at least the reduction, of the subjective sense of loss or lack of satisfaction of the injured party caused by the infringing conduct. Satisfaction also includes social condemnation of the infringement and recognition of the need to compensate for the harm caused. Its aim is to restore the physical and psychological balance of the person who has suffered an infringement of his or her personality rights.

The requirement for a damages award is that the underlying right is protected, while at the same time deterring infringers from engaging in injurious conduct. Therefore, the amount of the fine must be set at a level which is appropriate to counterbalance the intangible, non-monetary harm by the provision of a monetary benefit.

The Civil Code lists the circumstances that the legal practitioner may take into account and consider particularly important for the determination of the amount, such as the gravity of the infringement, its repetitive nature, the degree of imputability, the impact of the infringement on the victim and his environment, etc.

The amount of the damages award must therefore be determined taking into account the socially recognised purpose of a pecuniary penalty: to ensure that the amount awarded provides real compensation for the harm caused by the infringement of personality rights, while at the same time being suitable for sanctioning the infringement. The pecuniary compensation thus determined is capable of reducing the subjective sense of lack of satisfaction of the injured party as a result of the infringing conduct and also implies a social condemnation of the infringement.