The USA Journals Volume 03 Issue 06-2021
6
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 16, 2021 |
Pages:
6-12
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-02
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
The article examines the problems of compensation for moral damage caused to the consumer by
defects in goods, work performed or services rendered. The article analyzes domestic and foreign
law enforcement practice on the issues of compensation for moral damage to consumers and points
to the absence of clear criteria for determining the amount of moral damage both in the Republic of
Uzbekistan and in foreign countries. The article points to the existing disagreements between the
plaintiffs and the judges in determining the amount of compensation for non-pecuniary damage. The
rights of individuals and legal entities to claim compensation for moral damage are distinguished.
KEYWORDS
Consumer, moral damage, moral suffering, product shortcomings, honor, dignity, compensation,
rationality, justice.
INTRODUCTION
Consumption and fair trade are among the
fundamental principles of any democratic
society, and the protection of human rights as
a consumer is an objective, inevitable rule of
law and one of the most important
characteristics of such a society. Consumer
protection is an integral part of the consumer
protection system enshrined in Article 53 of
the Constitution of Uzbekistan, since it is the
state that guarantees consumer protection. It
should be noted that the history of the
development of consumer protection dates
back to the middle ages. It was then that a law
was passed in Austria on the addition of starch
to margarine. It was because the market
inspector had to be able to determine the
Problems Of Compensation For Moral Damage Caused To The
Consumer
Babayev Djahongir Ismailbekovich
Professor, Candidate Of Judicial Science, Department Of Civil Law, Tashkent State University Of
Law, Uzbekistan
Journal
Website:
http://theamericanjour
nals.com/index.php/taj
pslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 06-2021
7
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 16, 2021 |
Pages:
6-12
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-02
I
MPACT
F
ACTOR
2021:
5.
952
status of the sale of margarine as butter based
on taste. At that time, there were also laws in
force establishing liability for the sale of
substandard goods. 15th century in Austria,
for the sale of milk with the addition of water
or sour milk, a measure was used as a
punishment according to which the seller had
to drink all this milk himself. On the other
hand, in France, 16th century, buyers had the
right to throw rotten eggs at sellers. In many
countries, there is a special position of market
inspector, whose duties include overseeing
compliance with the rules of the public
market, punishing violators and encouraging
honest traders.
Violation of consumer rights in the sale of
goods, performance of work, and provision of
services can cause not only material, but also
moral harm. In this case, the person whose
rights have been violated may demand from
the manufacturer, seller, and contractor,
performer adequate compensation for the
moral suffering caused to him. The
consumer's right to demand compensation for
moral damage in case of violation of his rights
is understood from the general rules of the
institution for the protection of civil rights and
special legislation on the protection of
consumer rights. In particular, Article 11 of the
Civil Code of the Republic of Uzbekistan
provides for compensation for non-pecuniary
damage as one of the ways to protect civil
rights, and Article 22 of the Law “On
Protection of Consumer Rights” deals with
compensation for moral damage.
Currently, at the level of development of
civilized thinking, there is a rule according to
which moral damage manifests itself in the
form of moral and physical suffering, for
which an individual who has experienced such
suffering has the right to demand some
compensation. In particular, the Decree of the
President of the Republic of Uzbekistan
No.UP-5464 dated April 5, 2019 «The concept
of improving the civil legislation of the
Republic of Uzbekistan» sets the task of
strengthening the compensatory function of
civil legislation by introducing the procedure
for calculating moral and material damage [1].
On the basis of the above, non-pecuniary
damage is compensated by obtaining
compensation for moral suffering and physical
pain.
Moral damage to the consumer can be
inflicted in any legal relationship in which he is
involved. Although non-pecuniary damage is
generally considered tort, it can also arise
from
non-performance
of
contractual
obligations or non-performance of contractual
requirements. This situation is also observed
in judicial practice. For example, on February
25, 2020, the Karmana inter district Civil Court
considered a claim for compensation for
material and moral damage caused by
violation of consumer rights by the seller's
refusal to eliminate defects in the goods, the
warranty period of which had not expired. In
this case, the court recognized the consumer's
demand as justified and ruled to replace the
product with a new one and recover 300,000
Uzbek soums in the form of compensation for
moral damage [2].
Moral damage caused by the failure to provide
the consumer with the necessary information,
the inadequacy of the quality of service to the
established requirements, the provision of
incorrect information, is satisfied at the
request of the consumer. In this case, the
consumer can provide relevant information
about his mental and physical suffering or
The USA Journals Volume 03 Issue 06-2021
8
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 16, 2021 |
Pages:
6-12
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-02
I
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2021:
5.
952
provide documents about the negative impact
on his moral state. The specified condition
must be accompanied by a medical certificate
of adverse health changes or some confirmed
evidence of moral suffering. For example,
moral suffering can be expressed in the
appeal of the buyer to the seller with a
demand to replace a defective product,
receiving a refusal from the seller, the inability
to find the seller within a certain period of
time, or the seller's address is incorrectly
specified. The same situation is observed
when performing work and providing services.
For example, a TV set was repaired by a
domestic service company and a warranty
period was set for it. However, if the TV
breaks down during this warranty period, the
customer-consumer will be denied or abused,
a repair fee will be charged, or the
corresponding spare parts will be available
later, which causes moral damage. In this
case, the consumer has the right to demand
compensation from the consumer services
enterprise for both moral damage and
material damage.
The category of moral damage is a sub-
institutional of civil law, which is always
somewhat contradictory and cannot be
measured by strict criteria. In judicial practice,
the plaintiff can also claim the amount that he
wishes and considers necessary, without
providing any documents or relevant evidence
to confirm and accurately measure the
amount of non-pecuniary damage, and the
court can award compensation for non-
pecuniary damage in a significantly reduced
amount. In this situation, the court cannot
substantiate the reason for the decrease in
the amount of non-pecuniary damage,
because non-pecuniary damage cannot be
assessed
on
the
basis
of
«physical
appearance», which is a key element of
measurement in civil law. Thus, when
determining the amount of non-pecuniary
damage, the court, as a rule, limits itself to
citing the general criteria set out in Articles
1021-1022 of the Civil Code. In most cases,
these cases are based on the circumstances of
the case, the degree of fault of the inflictor of
harm and the requirements of reasonableness
and fairness. However, there is no clear
measure on these criteria. However, these
criteria are spiritual and personal. In this
sense, the plaintiffs can demand trillions,
billions and hundreds of millions of
compensation for non-pecuniary damage, as a
result of which the court will award
compensation in the amount of several
hundred thousand soums. This provision is
found all over the world. In the United States,
for example, there are many illogical claims
for compensation for moral and material
harm, which lawyers often call a special term -
frivolous lawsuit. In most cases, this is due to
the boundlessness of human imagination,
expressed in claims of up to a trillion dollars,
and in almost all cases these claims are not
even accepted for consideration by the courts
[3].
The moral damage caused to the consumer is,
first of all, the moral, spiritual and physical
suffering experienced as a result of the
violation of his rights as a person, as well as
the moral pain caused by information
defaming honor and dignity specified in Article
100 of the Civil Code. In this regard, an obvious
problem arises that the provisions of Article
100 of the Civil Code can be applied in case of
violation of consumer rights, the connection
of the provisions of this article with moral
damage caused to the consumer as a whole.
In our opinion, Article 100 of the Civil Code
The USA Journals Volume 03 Issue 06-2021
9
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 16, 2021 |
Pages:
6-12
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-02
I
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states that any person must be compensated
for moral damage caused by an encroachment
on his honor and dignity. In this case, the
consumer, like any other consumer, has the
right to demand compensation for moral
damage caused to him in accordance with this
article. Thus, the consumer has the right to
demand compensation for moral damage
caused by the violation of his rights,
regardless of whether the entrepreneur
entered into a contractual relationship with
the consumer on the basis of his status.
In law enforcement practice, there is a
different approach to compensation for moral
damage. In particular, according to the judge
of the Supreme Court of the Republic of
Uzbekistan J. Tirkashev, moral damage is
inflicted on citizens and organizations by
defaming their honor and dignity, by
disseminating
inaccurate
information,
harming the life and health of citizens, as well
as other rights of citizens and legal entities
guaranteed by the Constitution of Uzbekistan
[4].
In this case, it is arguable that organizations
also have «honor and dignity». Nevertheless,
the categories of honor and dignity belong
only to the individual. On the contrary,
organizations can only have a business
reputation. Consequently, it is appropriate to
compensate for moral damage to a citizen,
and not to organizations, although there is a
reference to the fact that a legal entity may
also have the right to demand compensation
for moral damage in accordance with part
nine of Article 100 of the Civil Code.
The first paragraph of clause 2 of the
Resolution of the Plenum of the Supreme
Court of the Republic of Uzbekistan «On some
issues of the application of legislation on
compensation for moral harm» [5] defines the
concept of moral damage and states that
moral and physical suffering is moral harm.
Consequently, the courts must be guided by
statutory criteria when determining the
amount of non-pecuniary damage. O. Okyulov,
in his interpretation of the concept of moral
harm, defines the terms «physical pain» and
«moral suffering», and also indicates that the
presence of one of these two components is
sufficient to cause moral harm, and if both of
these
components
are
manifested
simultaneously, the degree of moral damage
and liability should be higher [6]. In our
opinion, the physical pain experienced by the
consumer in connection with harm to health
as a result of violation of his rights is assessed
as moral damage and he should be paid some
compensation.
An
example
of
the
simultaneous expression of physical pain and
mental suffering is damage to health by a
product that has defects and rejections of
claims for compensation, as well as
accusations of fraud and deceit on the
consumer. In the case of a combination of
these cases, the amount of compensation for
non-pecuniary damage should be higher.
In the legal literature, there are many opinions
about the legal nature of compensation for
moral damage. According to I.I. Nasriev,
compensation will at least mitigate the
suffering caused. As a result, there is no way
to recover moral damage, and it is impossible
to eliminate it by payment. It can only be
compensated for in a certain value [7]. B.M.
Khamrokulov, on the contrary, argues that the
term «compensation» in relation to moral
damage cannot be used, since it is impossible
to realistically assess the amount of moral
damage, therefore it is necessary to
The USA Journals Volume 03 Issue 06-2021
10
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
June 16, 2021 |
Pages:
6-12
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-02
I
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2021:
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compensate for moral damage, which serves
only as consolation for the victim, and also
emphasizes that compensation is not the
restoration of the violated right.[8]
In addition, it should be noted that the legal
determination of the amount claimed by the
victim in the event of non-pecuniary damage
depends primarily on the determination of the
amount to be recovered and the proper
application of the rules of proportionality,
fairness and fairness. This is especially
important when protecting consumer rights.
After all, when a consumer, unlike other
subjects, as the weak side of legal relations,
requires compensation for moral damage, it is
necessary to establish a higher amount of
compensation in relation to him. Thus,
violation of consumer rights by a professional
counterparty with higher legal, professional
knowledge and skills than a consumer is
different from causing moral damage
between equal participants in another type of
legal relationship. In this regard, when dealing
with moral harm, given that the consumer is a
weak side, and the other party knows about
this, first of all, it is necessary to pay attention
to the proportionality of the illegal act
committed by the counterparty and the
amount of compensation.
Article 22 of the Law “On Protection of
Consumer Rights” states that the tort feasor
must pay compensation if he is at fault. This
provision on the payment of compensation
for non-pecuniary damage to the consumer is
also provided for in article 1021 of the Civil
Code. Since in the event of harm to the life
and health of the consumer as a result of
defects in the goods (work, service), the
question of innocent liability in the legislation
remains open. Article 1020 of the Civil Code
provides for exemption from liability for
damage caused by defects in goods (works,
services) in the following two cases: a) the
damage was caused by force majeure; b)
violation by the consumer of the established
rules for storing or using goods (results of
work, services). The above article does not
define the absence of fault as a basis for
exoneration from liability. It turns out that the
shortcomings of the goods are also the fault
of the manufacturer, seller, contractor and
executor. However, it is important to
determine that compensation for harm,
including moral damage, caused by defects
caused by natural wear and tear of the goods,
the expiration of the service life of its parts,
without direct human influence, should be
regarded as innocent responsibility. In this
regard, it is appropriate to draw attention to
the rule of absence of guilt as a basis for
exemption from liability for failure to fulfill the
obligations provided for in part three of
Article 333 of the Civil Code. That is, if the
basis for exemption from liability under
contractual obligations is the absence of guilt,
then the basis for exemption from liability for
harm caused by the lack of goods (work,
services) are force majeure circumstances and
the actions of the victim. Consequently, the
counterparty must prove his innocence in the
relationship of the obligation in order to be
exempted from liability for moral damage
caused to the consumer, and in relation to the
tort, the counterparty must prove force
majeure circumstances and the guilt of the
victim.
In civil law, the issue of determining the
amount of compensation for moral damage is
the most relevant and intractable, and
therefore is a measure of responsibility that
requires
different
interpretations
and
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approaches. According to M.M. Mamasiddikov
in judicial practice, there are a number of
problems with determining the amount of the
penalty when considering and resolving cases
of compensation for moral damage. The fact
that at present there is no clear legal concept
on this issue, and even the Resolution of the
Plenum of the Supreme Court does not
provide an appropriate explanation, indicates
the relevance of this issue [9]. According to N.
Egamberdiyeva,
when
determining
the
amount of moral damage, one should proceed
from the degree of guilt of the offender. After
determining the degree of guilt, it is also
necessary to determine its amount. The size
issue is also not clearly regulated in the
legislation. The decision on the amount of
damage is left to the discretion of the courts
themselves [10].
In our opinion, in addition to the above criteria
(the nature of guilt and suffering), rationality
and justice are also decisive factors in
determining the amount of compensation for
moral damage. The current legislation does
not define the criteria of fairness and
reasonableness. However, these concepts are
understood and interpreted by everyone in a
different way, based on their own perception
of the world and society. Consequently, these
concepts have no clear boundaries, volume or
dimension. However, when determining the
amount of compensation for moral damage, it
is necessary to develop a specific approach to
the interpretation and application of these
concepts. Indeed, the court determines the
amount of compensation for non-pecuniary
damage by assessing these categories in the
course of the proceedings. Thus, the
availability of appropriate guidance on how to
interpret the concepts of fairness and
reasonableness serves to ensure that the
courts' approach in this regard is the same. O.
Okyulov connects the criterion of justice with
the ratio of harm and the compensation
established for it, rationality is associated with
taking into account the property status of the
parties to the legal relationship. In our
opinion, the criterion of reasonableness in
determining the amount of compensation for
moral damage is expressed primarily in a
decision that corresponds to reason as an
inner feeling. A conclusion that is appropriate
for the situation and which many consider
reasonable is a reasonable decision. The
nature of reasonableness in determining the
amount of compensation for moral damage to
the consumer is established based on the
characteristics of the harm, contradictory
actions between the victim and the tortfeasor.
Based on the above analysis, it should be
noted that in order to increase the level of
consumer protection in Uzbekistan, the
priorities of state policy in this area may be
the following:
The need to further harmonize the legal
framework of Uzbekistan in the field of
consumer protection with European
norms and rules, as well as improve
national consumer legislation (detailed
description of the law on the conditions
for the return and exchange of goods;
rules for the return of goods, warranty
service, etc.);
Ensuring interaction, functioning and
coordination of actions of executive
authorities with local governments and
public associations of consumers;
Creation of specialized organizations for
independent testing, examination of the
quality and safety of goods and services
sold on the market;
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Pages:
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Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue06-02
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Providing and supporting research in the
field of consumer protection;
Increasing the role of the media in
informing consumers about the results of
comparative testing of goods and
services;
Ensuring the necessary objectivity and
reliability of information about the
relevant goods and services, so that
consumers can make an informed choice
between different offers on the market;
Creation of an «anti-rating» of enterprises
that constantly violate consumer rights;
Increasing the level of knowledge of
consumers
through
the
mandatory
introduction of appropriate training
courses
in
secondary
and
higher
educational institutions;
Introduction of the concept of «absolute
responsibility of producers» for all goods
and services supplied to the market,
creation of a system of incentives for
manufacturers and sellers of high-quality
and safe products;
Implementation of measures at the state
level
to
protect
consumers
from
genetically modified organisms, potential
risks associated with the use of food
additives (for example, strengthening the
conditions for their registration, reducing
the validity of certificates and quality
certificates).
REFERENCES
1.
National Database of Legislation,
06.04.2019, No. 08/19/5464/2891.
2.
10,000,000 and 300,000 soums of
moral damage were recovered in favor
of
the
consumer
//
https://istemol.uz/ru/archives/4517.
3.
Billions, trillions, undecillions. Record
claims
and
payments
/
http://rapsinews.ru/judicial_analyst/201
40522/271383358.html
4.
Tirkashev J. In what order the moral
damage
is
recovered
//
http://sud.uz/manual-harm-what-it- is-
recovered/.
5.
https://www.lex.uz/docs/1449509.
6.
Commentary to the Civil Code of the
Republic of Uzbekistan: Scientific
Comments. T. 3. / Ministry of Justice of
the
Republic
of Uzbekistan.
–
Tashkent: Baktria press, - 346 p.
7.
Nasriev I.I. Moral damage, some
problems of its compensation //
Journal of Legal Research. Journal
Legal Research. Journal of Law
Research. 2017. - №3. - S. 68. //
www.tadqiqot.uz
8.
Hamroqulov B.M. Improving the basis
for compensation for non-pecuniary
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24 b.
9.
Mamasiddiqov
M.M.
Procedural
features of litigation of disputes
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from
labor
relations.
-
Tashkent: TSU, 2005. - 102 p.
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