compensation and gratification Attitude changes in judiciary practices Here the emphasis is on perceiving one s social environment as predictable ID: 161858
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Slide1
Reparation, compensation and gratification
Attitude
changes
in
judiciary
practicesSlide2
„Here the emphasis is
on
perceiving
one
's
social
environment
as
predictable
,
ordered
, and
benign
(
if
not
benevolent
).
According
to
theory
, trauma and
loss
have
the
potential
to
threaten
both
one
's
sense
of
meaning
in
life (i.e.,
they
may
threaten
significant
aspects
of
one
's
self-concept
),
as
well
as
the
assumptions
one
holds
about
the
comprehensibility
and
meaningfulness
of
events
(
one
's
assumptive
world
;
Janoff-Bulman
, 1992).
For
instance
,
the
loss
of a
loved
one
not
only
may
render
unobtainable
or
unimportant
goals
(
or
possible
selves
)
toward
which
one
was
striving
or
force
one
to
reevaluate
one
's
values
and
commitments
but
also
may
expose
as
illusory
key
assumptions
about
justice
,
fairness
,
control
,
and
the
benevolence
of
the
world
.” (Davis, 1998)Slide3
Non-pecuniary
losses
Act
IV of 1959 (on the Civil Code, no longer in force: as of 15. 03. 2014.)
Section
84.
(
1)
A
person
whose
inherent
rights
have
been
violated
shall
have
the
following
options
under
civil
law
,
depending
on
the
circumstances
of
the
case
:
e)
file
charges
for
punitive
damages
in
accordance
with
the
liability
regulations
under
civil
law
.
Section
355
.
(
1)
The
person
responsible
for
the
damage
shall
be
liable
for
restoring
the
original
state
,
or
,
if
this
is
not
possible
or
if
the
aggrieved
party
refuses
restoration
for
a
substantiated
reason
, he
shall
indemnify
the
aggrieved
party
for
material
and
non-material
damages
.
(2)
Damage
shall
be
indemnified
in
cash,
unless
compensation
in
kind
is
justified
by
the
circumstances
.
Compensation
in
kind
may
be
justified
particularly
if
the
object
of
indemnification
is
produced
by
the
person
responsible
for
the
damage
or
is
otherwise
at
his
disposal
.
(3)
An
annuity
can
also
be
awarded
as
indemnification
.
On
general
principle
, an
annuity
shall
be
awarded
if
indemnification
is
designed
to
support
or
assist
in
the
support
of
the
aggrieved
person
or
those
of
his
relatives
entitled
to
be
supported
by
him
.
(4)
On
the
grounds
of
indemnification
,
compensation
must be made
for
any
depreciation
in
value
of
the
property
of
the
aggrieved
person
and
any
pecuniary
advantage
lost
due
to
the
damage
as
well
as
the
indemnity
or
costs
necessary
for
the
attenuation
or
elimination
of
the
material
and
non-material
losses
sustained
by
the
aggrieved
person
.Slide4
Solatium
doloris
Act
V of 2013 (on the Civil Code)Section 2:52 (1) Any person whose rights relating
to
personality
had
been
violated
shall
be
entitled
to
restitution
for
any
non-material
violation
suffered
.
(2)
As
regards
the
conditions
for
the
obligation
of
payment
of
restitution
-
such
as
the
definition
of
the
person
liable
for
the
restitution
payable
and
the
cases
of
exemptions
-
the
rules
on
liability
for
damages
shall
apply
,
with
the
proviso
that
apart
from
the
fact
of
the
infringement
no
other
harm
has
to
be
verified
for
entitlement
to
restitution
.
(3)
The
court
shall
determine
the
amount
of
restitution
in
one
sum,
taking
into
account
the
gravity
of
the
infringement
,
whether
it
was
committed
on
one
or
more
occasions
,
the
degree
of
responsibility
,
the
impact
of
the
infringement
upon
the
aggrieved
party
and
his
environment
.Slide5Slide6
Act III of 1952 (on
the
Code of Civil Procedure)Section 163 (3) The court shall recognize as true any facts which are
considered
common
knowledge
. The
same
applies
to
information
of
which
the
court
has
knowledge
officially
. The
court
shall
take
these
facts
into
consideration
regardless
of
whether
they
are
mentioned
by
the
parties
or
not
,
however
,
the
parties
must be
notified
of
this
during
the
hearing
.Slide7
Human dignity
„
The right to equal protection is guaranteed by equality
incorporated in the right to human dignity.”DECISION 34/1992 (VI. 1.) AB“One of the functions of the right to human dignity declared in point 1 section 54 of the Constitution is to ensure equality. At the beginning, historically it meant equality before the law, however in the modern constitutions and the practices of the constitutional courts equality
in
corporated
in dignity is also expressed in the further rights derived from it. This equality shall prevail in the dimension of constitutional legal protection. The physical well-being and health is not more valuable and more worthy of protection than individual free rights or the right to self-determination
.”Slide8
Equal
rights
enabling the free
fulfillment
of a
personalitySlide9Slide10
Extent of
Solatium
dolorisCivil Code section 2:52. (3)
extent
of
the
violation
of
law
repeated
violation
of
law
e
xtent
of
imputability
impact
of
the
violation
of
law
on
the
plaintiff
and
their
environmentSlide11Slide12
„The treatment not only means to repair what has been broken but also to strengthen and preserve the things that are perfect. The essence of attitude change is to focus on the development and the building of competences rather than on the correction of weaknesses.”
(
Oláh, 2004)Psychoanalitical approach
to
processing
trauma
Based
on
Oláh (2004)Slide13
Act III of 1952 (on
the
Code of Civil Procedure)Section 206 (1) The court shall ascertain the relevant facts of a case upon weighing
the
arguments
of
the
parties
against
the
evidence
obtained
by
the
performance of
taking
of
evidence
. The
court
shall
evaluate
the
evidence
as
a
whole
, and
shall
rule
relying
on
its
conviction
.
(3)
The
court
shall
determine
the
amount
of
damages
or
any
other
claim
to
be
awarded
at
its
own
discretion
,
after
weighing
all
circumstances
of
the
case
,
provided
that
it
cannot
be
established
based
on
the
opinions
of
experts
or
other
evidence
.Slide14
Pain
and
suffering
Damages
Reparation
Compensation
Non-pecuniary
losses
Solatium
dolorisSlide15
“If civil law acknowledges non-pecuniary compensation as a means to protect personality – as no objective criteria can be set up to its application - it cannot make it subject to such outside conditions, which are unnecessary and arbitrary. The proportions of a claim and personal injury are both based on estimation, which cannot be objectively measured, and which cannot be adjusted constitutionally to the consequences in the legal regulation. It is solely determined by the sobriety, personal commitment and moderation of the court
.”
(
DECISION 34/1992 (VI. 1.) AB)Slide16
Thank
you
for your attention!Slide17
References
Course books, magazines
Davis, C.G.; Nolen-
Hoeksema, S; Larson, J. (1998). Veszteségélmény, jelentéstulajdonítás és előnykovácsolás. A jelentés két megközelítése In: Kulcsár Zs. (szerk.) (2005) Teher
alatt
…
Pozitív
traumafeldolgozás
és
poszttraumás
személyiségfejlődés
(
szöveggyűjtemény
)
Trefort
Kiadó
, Budapest, 149-176. p.
Oláh A. (2004).
Mi
a
pozitívuma
a
pozitív
pszichológiának? Iskolakultúra 14(11) 39-47.p.Oláh A. (2005).
Érzelmek, megküzdés és optimális élmény Trefort Kiadó, BudapestRegulations, decisions of the Constitutional CourtDecision of the Constitutional Court 8/1990. (IV.23.)Decision of
the Constitutional Court 34/1992. (VI. 1.)1959. évi IV. law (old Civil Code)2013. évi V. law (Civil Code)1952. évi
III. law (Code of Civil Procedure)