Compensation for violating individual property is an crucial tool for protecting the rights of all human being. If individual violates your dignity, good name, privacy or the right to an image, you can claim financial compensation.
Such situations happen for example when:
- defamation on the Internet,
- publications of offensive content,
- breach of privacy by distributing photos or recordings without consent,
- providing false information in the media,
- breach of correspondence secrecy,
- illegal usage of the image in advertising,
- Persistent harassment (stabling),
- And many others.
Compensation as compensation for non-material damage
Compensation is simply a form of compensation for the non-material injury suffered. In order to get redress, both the kind of individual good violated and the form of this violation must correspond to certain conditions.
On definitions and examples of individual property – read here
Definition of non-injurious injury
Non-material harm within the meaning of civilian law (otherwise, harm) – are all negative effects on the victim's physical and intellectual condition, thus specified a breach of the goods and interests of the rightholder which does not origin repercussions in his estate.
Non-material harm is all that importantly affects well-being, so physical suffering (pain) and intellectual suffering (suffering caused by imprisonment or disfigurement, concern, fear for life, reducing the joy of life through failure of chance to prosecute a favourite profession or hobby, suffering caused by failure of a good name due to slander) (Yes: Adam Szpunar. For injury compensation. "Iuridica Study". XXI/1994. p. 171.
The function of compensation for violation of individual property
The doctrine indicates that compensation for harm with personal property infringements performs 3 basic functions: compensating, repressive and preventive. The compensation function, however, is of top importance, while another functions have little applicable importance (so: L. Jaskuła, Right to a good name and freedom of the press, Warsaw 2008, p. 224).
Legal basis for obtaining compensation for breach of individual property
Article 445 k.c. in § 1 provides that in the event of imprisonment and in the event of deception, rape or abuse of the relation of dependence to fornication, the court may grant the victim an appropriate sum for compensation for incorrect suffered. The same applies to cases where the victim has been deprived of his liberty and in the event of being provoked by deception, rape or abuse of the relation of dependence to fornication (§ 2).
The civilian Code besides includes Article 448 which states that, in the event of a breach of a individual good, a court may grant to the individual whose individual good has been breached, an appropriate sum with the title of compensation for harm suffered or, at his request, justice the appropriate the monetary amount for the social nonsubjective indicated by him, whatever another measures essential to remedy the consequences of the infringement.
Personal property for which a violation is made up
Since the nature of the individual good infringed is not defined in Article 448 k.c., it is understood that that provision applies in the event of infringements of any individual property, both referred to in Article 23 k.c. and individual property in that provision not mentioned if they enjoy the protection of the law.
This distinguishes this provision from Article 445 k.c. where personal goods They're specific. At the same time, it extends the scope of protected goods compared to this provision, in peculiar to specified good as honor, good name, the sphere of private life, secret of correspondence (yes: comment on Article 448 k.c. A. Rzetecka – Gil Lex 37/2013).
Obligation to indicate the kind of individual good that has been violated
The failure of the suspect to indicate the kind of individual good that would be affected by the suspect makes it impossible for the court to consider a request for redress under Article 448 KC in conjunction with Article 24 KC.
In order to establish the claims referred to in Article 24 (including redress claims), the effect of violating 1 of the individual property referred to in Article 23 KC shall be necessary. Moreover, as has been said, it is the burden of proving that the flood is under Article 6 The defendant's unlawful action has seriously violated his individual interests and which (so the ultimate Court judgement of 7 April 2009, Case I ACa 155/13 and the judgement of the Court of Appeal of Katowice of 20 March 2013, Case I ACA 125/13).
Indemnification for violation of individual property
Recognizing the case protection of individual property The court should first find the individual good that may have been infringed and then determine, whether there has been a individual injury, and only in the event of a affirmative consequence to find whether the defendant's actions were unlawful.
Where the claimant requests Compensation for breach of individual propertyevaluation becomes crucial the existence of responsibility on the part of the offender.
The remaining grounds for the claim based on Article 448 kc, i.e. a breach of individual property resulting in non-human injury (compensated reparation) and the causal link between this act and the non-marital harm caused by individual injury (see G. Bieniek, Commentary to KC, Book 3 – Commitments, Vol. I, Lexis Nexis 2009).
The burden of proof in the case of compensation for violation of individual property
Proof that a circumstantial individual good exists, as well as proof that it has been threatened or infringed, shall be borne in accordance with Article 6(c) on the individual seeking legal protection under Article 24(c), i.e. on the plaintiff's website. Failure to show the existence of this condition causes the suspect not to be responsible, while the absence of a breach (or threat) of individual property makes unnecessary further findings regarding the origin of the injury.
On the 1 who has taken personal welfare risk The burden of proving that it was not unlawful (yes: ultimate Court judgement of 17 June 2004, V CK 609/03).
Unlawfulness and wine as grounds for individual good
The provision of Article 24 kc states that the individual whose individual welfare is at hazard of individual else's action may request the omission of this action, unless it is not unlawful. In the event of a breach, the injured individual may besides require that the individual who committed the infringement complete the steps essential to remedy the consequences, in peculiar that he or she make a message of the appropriate content and form.
The said Article 24 kc, regarding claims provided for in it, protects only against unlawful infringement or the threat of individual property, while does not require that the infringement is of a criminal nature. Therefore, it is not required that the plaintiff trust on the defendant's objectives or intentions as a basis for assessing whether the infringement was unlawful. These are necessarily subjective circumstances which are not applicable to the classification of this infringement as unlawful, due to the fact that the lawfulness itself is determined according to nonsubjective criteria.
However, if the victim besides requests cash compensation or payment of an appropriate monetary sum for the social nonsubjective indicated, this request refers to the general principles laid down in the civilian Code. In this respect, the component of guilt is already important.
With respect to actions undertaken by highly specialised individuals, with a number of powers, the implementation of which, frequently leading to a violation of someone's individual welfare, has as its overarching nonsubjective the protection of the legal order. specified entities should be treated as professionals to whom advanced standards of expertise and diligence must be imposed in the performance of individual tasks must be imposed and, on the another hand, application of the rule of proportionality, i.e. the usage of appropriate means and proportionately essential to accomplish the nonsubjective (yes: ultimate Court judgement of 26 March 2003, II CKN 1370/00, Lex No 78827).
Meaning of responsibility for the perpetrator of a individual injury
In the end, there is no uncertainty that, where the subject substance of the proceedings is a request for property protection of individual property By payment of compensation, the victim may claim compensation for the wrong-affected individual (see ultimate Court judgement of 12 December 2002, V CKN 1581/00, OSNC 2004, No 4, item 53).
For the correct thesis o liability on a responsibility basis is mainly a systemic interpretation, and thus the delicate nature of responsibility. The regulation of the work to compensate for the harm caused to cases caused by unlawful conduct and at the same time blamed is in accordance with the basic rule of the pecuniary liability of the harm perpetrator. It is besides consistent with the justification for the simultaneous application of Articles 445 and 448 kc. This explanation was confirmed by the ultimate Court in its judgement of 24 January 2008 (I CSK 319/07, Lex No 448025), recognising the appropriateness of the existence of uniform conditions under the government of pecuniary liability demands for redress and judging the sum for social purposes.
The judicature predominates the view that the condition for granting the benefits provided for in Article 448 (both claims covered by it) is the responsibility of the perpetrator of the individual goods breach, both intentionally and unintentionally, including even culpa levissima, which is the basis of that liability, not only illegal, but besides the faulty action of the perpetrator of the individual goods breach (yes: The territory Court of Kędzierina in its judgement of 30 January 2013, Ref. Act I C 601/12).
Consequences of the placing of Article 448 k.c. within the scope of the provisions on unlawful acts
the Court of Appeal in Poznań in its judgement of 23 May 2013, Ref. Act I ACa 331/13stated that only the guilty action of the perpetrator of the individual good justifies liability Article 448 (c) and in the explanatory memorandum of the judgement explained that the view that Article 448 (c) includes a violation of all individual good within the meaning of Article 23 (c) is so a peculiar provision supplementing the general regulation set out in Article 24 (c) but that Article 448 (c) within the scope of the rules on unlawful acts, for which the rule of blame is the primary condition of liability (responsibility on a hazard basis or on the basis of social coexistence occurs only in the cases expressly defined in the Act), determines that Article 448 (c) can only be applied in the event of a faulty breach of individual property.
If the legislator wanted to taking account of a cash request depended solely on the illegality of the violation of individual property, then it would include this institution in part of general civilian law (within Article 24 of the Code). In the meantime, Article 24 of the Code refers to “the rules provided for in the Code”. So just Confused action of the perpetrator of a individual injury justify liability with Article 448 k.c. Since Article 448 k.c. is located in Title VI of the 3rd Book of the civilian Code, neither the grounds of work nor the grounds for liability are indicated in it, and there are no circumstances in that provision which would exempt liability, there is no reasonable basis for excluding that work from the guilt-based regime.
The Court pointed out that the judicature besides held the view that liability under Article 448 k.c. is not only a condition of liability. illegal, but besides wrongful action of the perpetrator of a individual injury (Monograph H. S.: / Oficina 2007 – lex Monografies to the provision of Art. 448 k.c LEX No 1353796W ‘Money compensation for the injury suffered,’).
Definition of illegality in civilian law
The Court of Appeal in Warsaw in its judgement of 1 March 2017, Ref. Act VI ACa 1850/15has decided that unlawful behaviour means a negative assessment of this behaviour based on a conflict with a broad legal order, i.e. contrary to the laws in force or rules arising from the principles of social coexistence.
Unlawfulness constitutes a qualification of the act in question, it considers the conduct to be objectively incorrect and abstractive of the component of the offence (which is applicable only erstwhile a possible request for property protection is made). In determining the illegality, consideration shall be given to the ratio in which the conduct remains in relation to the applicable rules of conduct.
Presumption of illegality in violation of individual property
According to the settled view, any action affecting individual welfare is considered unlawful if no of the special circumstances justifying Eat.
The exclusion of illegality includes action within the legal order, i.e.:
- action permitted by the applicable provisions,
- the exercise of the right to an entity,
- consent of the victim, and
- acting in defence of legitimate interest.
There is so presumption of illegality, which is simply a crucial facilitation for the plaintiff, since shifts the burden of proof to the defendant's sidewhich must prove 1 of the above circumstances in order to avoid liability for violation of individual property (yes: judgement of the Białystok territory Court of 13 May 2014, File reference: I C 458/14).
Harm as an component essential to settle a individual violation
For a compensation for violation of individual property it is essential to show the injury caused by this infringement. The basic criterion for assessing the infringement as harm remains the size and strength of the ailment, assessed by nonsubjective measures, and the degree of the negative consequences for the victim resulting from the individual welfare breach (yes: Commentary to the civilian Code under prof. Krzysztof Pietrzykowski, Warsaw 2008, Vol. 1 p.1465, and judgement of the Płock territory Court of 24 March 2016, Ref. Act I C 1522/15).
Amount of compensation for breach of individual property
The amount of compensation granted under Article 448 k.c., as stressed in the case law, is assessed. Therefore, the organization can effectively challenge its tallness only if disproportionateity to the harm is clear or gross (yes: ultimate Court judgement of 8 August 2007, I CSK 165/07, 15 October 2009, I CSK 83/09, SA in Poznań of 4 March 2010, I ACa 141/10).
Compensation of Article 448 k.c. is primarily compensatory and thus the compensation amount must represent a certain economically noticeable value. erstwhile assessing what the sum is, within the meaning of Article 448 k.c., the appropriate title of compensation for the harm suffered caused by a breach of individual property shall be taken into account: the kind of good that has been breached and the nature, severity and duration of the experience of the individual whose welfare has been compromised, the degree of the negative intellectual experience caused by the breach Among another things: the drama of the experiences of the deceased's loved ones, the sense of loneliness, moral suffering and intellectual shock caused by the death of the loved one, the function of the deceased individual in the family, the kind and strength of the connection between the victim and the deceased, the occurrence of disorders resulting from the departure (e.g. neurosis, depression).
The Court of Appeal in Warsaw in its judgement of 8 February 2017, Ref. Act VI ACa 1870/15stated that the task of redress is to compensate and mitigate emotional damage. This means that in determining its height, all the circumstances of a peculiar case should be taken, the effect on the kind and degree of suffering, but besides that it does not become a origin of enrichment for the victim.
Measures to defend the damaged goods must be adequate to the infringement itself and selected taking into account the full circumstances of the case. Assessment of whether the actions needed to remedy the consequences of a breach of individual property referred to in Article 24(1) of the Code are adequate for obtaining adequate satisfaction by the victim, should so take into account the scale of the dissemination of activities affecting his individual property. (cf. ultimate Court judgement of 10 September 2009 with justification, V CSK 64/09, LEX No 585910; judgement of the Court of Appeal in Katowice of 31 January 2007, I ACa 1682/06, LEX No 307313).
Why is it worth utilizing a lawyer to make amends for violating individual property?
Personal property infringement proceedings are frequently complicated and require not only cognition of the law, but besides the ability to show the relation between the wrongful action of the perpetrator and the consequences of the victim’s life. The lawyer has the cognition and experience to effectively prepare the legal argument, to gather appropriate evidence and to decently formulate demands for redress. Professional support importantly increases the chance to get a satisfactory judgement or settlement.
