06 Feb The Amount Of Non-pecuniary Damage Is Determined By Which Criteria?
Pursuant to Article 58 of the Code of Obligations No. 6098, any person who is attacked by an unlawful person may demand that his / her personal rights be violated. The purpose of non-pecuniary damage is to compensate for the deteriorating mental balance of the person whose right to personality is being attacked and to meet the reduction in spiritual values. In other words, the aim is to provide partial and possible extrapolation of the pain and suffering. The basis of the non-pecuniary damages is the unjustified act of the defendants. Elements of unfair action; the illegality of the act is contrary to the law, that is to say the causal link between the act and harm.
In our law, the duty to determine the amount of non-pecuniary damage is left to the discretion of the judge. In cases where the law gives discretion, the judge will decide in accordance with the law and justice. The judge must appreciate the appropriate amount of compensation, taking into account the principle of equality set out in Article 4 of the Civil Code.
The non-pecuniary damages shall be of a specific character, which has a similar function to the compensation for carrying out the spiritual peace of mind. There was no punishment, nor was it intended to compensate for the damage to the law. The amount of money awarded in respect of non-pecuniary damage is in fact neither compensation nor penalty. There is also a function similar to compensation since it aims to awaken a sense of peace and to relieve the suffering of the soul.
In the case of non-pecuniary damages stipulated in Article 56 of the Code of Obligations No. 6098, the defect is not required but may be effective in the case. In the justification of this decision, special circumstances and conditions which affect the amount of non-pecuniary damage will be clearly shown. Since these may vary according to each event, the judge must exercise his discretion in this regard and show the reasons that influence him / her in the place of decision in objective dimensions.
In the light of these brief information which includes the opinions of the Supreme Court; As stated, the duty to determine the amount of non-pecuniary damage is left to the discretion of the judge. If the duty to determine the amount of such compensation is left to the discretion of the judge, the judge must respect the appropriate amount of compensation in accordance with the law and justice (right and judgment), taking into account the principle of equality set out in Article 4 of the Civil Code. In determining the amount, the reasons that will affect the appreciation rights by considering the special conditions and conditions which may vary according to each event should be shown objectively in the decision place. Judging the judge of moral compensation;
The nature of the action and the event,
Personality rights are damaged, if there is any economic and social situation and defect, and the degree of defect, if any,
The degree of defect, the economic and social status of the attacker,
The title of the parties, the occupation authority and other social and economic conditions,
Economic conditions of the country,
The weight of the event, its history,
Money should take into account the purchasing power.
Moreover, the amount of non-pecuniary damage;
Should be in accordance with justice,
The verdict violating the personality rights must be at a reasonable rate between the amount of compensation,
It should not have consequences that will lead to a prosperity of one side,
It must comply with the purpose of non-pecuniary damage,
The loss must be as much as necessary to achieve the effect of the desired satisfaction (satisfaction) in the present situation to realize the spiritual peace of mind,
It must be proportionate to the moral damage suffered;
In the event of loss, the amount of spiritual peace of mind should be realized.
It should be as much as necessary to achieve the effect of the desired sense of satisfaction in the present state.
The approach in the developing law should be in accordance with the sense of satisfaction as well as the deterrent rate.