Reparation - PowerPoint Presentation

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IV of 1959 (on the Civil Code, no longer in force: as of 15. 03. 2014.)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

.Slide5
Slide6

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

personalitySlide9
Slide10

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

environmentSlide11
Slide12

„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)