Intangible goods in the legal mechanism of compensation for moral harm
Authors:   University of Tyumen, Solomin Sergey K. ,   Kuzbass Institute of the Federal Penitentiary Service of Russia, Solomina Natalia G. ,   University of Tyumen; Kuzbass Institute of the Federal Penitentiary Service of Russia
Published: December 2024

The article assesses the legislative approach to the definition of the scope of the concept of an intangible good, as well as judicial practice formed within this approach for the purpose of determining the limits of application of the claim for compensation for moral harm. The authors subjected to critical analysis the individual approaches of the supreme judicial bodies of the Russian Federation to the application of the rules on compensation for moral harm. The study is based on the application of general scientific (analysis, synthesis, abstracted) and special research (formal and legal, legal modelling) methods. Based on the legislative model of the “non-exhaustive list of intangible goods”, the authors turn to the basics of the national doctrine on the civil and legal protection of intangible goods, formulating a number of fundamental legal axioms, unfortunately, ignored by the legislator at the stage of formation of norms of positive law and, respectively, not taken into account by the law enforcer in resolving disputes, protection of personal
non-property rights of citizens. Thus, determining the relationship of an intangible good to a personal non-property right, the authors derive the basic legal axiom, according to which civil protection should be carried out exclusively in relation to the violated personal right, not the personal (intangible) good of a citizen. The analysis of a number of key positions of the highest judicial bodies on the application of norms on compensation for moral harm made it possible to conclude that these positions either do not comply with the law (objectives of legal regulation) or contradict the substance of the relationship. The authors give a critical assessment of judicial practice that extends the institution of compensation for moral harm via cases in which the moral and physical sufferings of a citizen are not at all in a direct cause-and-effect relationship with the committed offense or appear simultaneously with the occurrence of property damage. The authors infer that the state has created a legal basis for the monetization of any intangible good, and the judicial practice has brought the process of such monetization to the extreme; the idea of social justice simply disappeared. The authors proved that, as a result of the monetization of an intangible good, the function was modified, which the mechanism of compensation for moral harm was supposed to perform: the protective function gave way to the function of a sanction for some groups (violators of personal non-property right) and the function of enrichment for others (victims). As a result of the study, the authors came to the key conclusion that the claim for compensation of moral harm can be used as a protective means only in addition to other (main), exclusively non-property methods of protection, which made it possible to determine the limits of the application of the claim for compensation for moral harm.