This thesis of the rest find solace in the wording of art
of Annamaria Villafrate - damage, subjective moral still creates divisions in case lawIn the face of those who, respecting the judgments twin of the Supreme court in considered part of the non-pecuniary damage, pronunciations, recent support for the autonomy. Pursuant to art.
'The non-pecuniary damage shall be compensated only in the cases determined by the law.
In fact, in the past, the interpretation of this rule led the judges to recognize the moral damage, the subheading of non-pecuniary damage, only if a result of a crime. p, asi, under which: 'Every offence obliged to export refunds, in accordance with civil law. Every crime which has caused patrimonial or non-patrimonial, it obliges the offender to pay compensation and the persons who, under civil law, must respond to the fact of him. The moral damage, in the presence of injury to the person usually accompanies the damage the biological and existential, that make up the item comprehensive of non-pecuniary damage, which should not give rise to double counting damages and automation that are beyond the concrete case.
Over time, the extensive interpretation of these provisions leads the court to conclude that the moral damage is compensable only if the consequent of a crime.
It is sufficient that the conduct is only abstractly configurable as a crime to believe it is legitimate for his compensation.
Just think of the recognition of the moral damages for the excessive duration of the process, a matter which has nothing to do with criminal matters. That said, according to the United Sections of the the 'heartache of the soul or inner suffering or flare-psychic, purely emotional and interior, c. moral harm is subjective'. Always according to the Supreme Court, the effect is painful to the damage, if prolonged and intense, one of the most important not for the purposes of its recognition, but its quantification, thus overcoming the thesis that defines it as a disturbance in the transitional state of mind. Not only disturbance in the transitional state of mind, then, but also suffering intense and prolonged.
After the United Sections of the the meaning of moral damage evolves further, to encompass including its causes also the violation of the dignity of the person.
defines it as a 'prejudice, not the balance sheet constituted by the subjective suffering as a result of the harmful act in itself is considered to be' the D. thirty-seven it describes as the 'suffering and disturbance of the state of mind, beyond that of the injury to the dignity of the person. Clarified the meaning, it is necessary to address the issue of the recognition of moral damages as a separate item. According to the notes, the United Sections of it is included in the biological damage because every injury causes suffering, bodily and psychological.
Recently, however, in the face of decisions that adhere to the guidelines of the Judgments twin (see: the civil Cassation court n.), others assert the autonomy of the moral damage compared to the organic (Civil Cassation court n.
civil Cassation court n.). Significant in this regard is the civil Cassation court n, that between the points of the decalogue on compensation for damage to health, explains: ') In the presence of a damage to health, does not constitute duplicate damages the joint allocation of a sum of money as compensation for biological damage, and of a further sum by way of compensation for the prejudices that have no basis medical and legal, why not having a basis of organic and extraneous to the determination of medical-legal degree percentage of permanent disability, represented by the inner suffering (such as, for example, the pain of the soul, the shame, the contempt of self, fear, despair).) Where it is properly inferred and properly proven the existence of one of these prejudices do not have basic medical-legal, they must be the subject of separate assessment and clearance (as it is confirmed, today, from the text of the articles. ass, as modified by art. in article, paragraph, of law, four in August, no.), which, under the single definition of 'non-pecuniary damage', to distinguish the damage dynamic relational caused dallelesioni 'moral').) The non-pecuniary damage not arising from an injury of health, but consequent to the injury of other interests constitutionally protected, it should be liquidated, not unlike that in the case of bodily harm, taking into account much of the prejudice suffered by the victim in the relationship with itself (the inner suffering and the feeling of grief in all its possible forms, id est the moral damage the interior), as those relating to the dynamic dimension-relational, of the life of the person affected. In the one case as in the other, without automation of compensation and after a careful and thorough investigation. In short, as is also stressed by the recent order of the civil Court of Cassation n, in the absence of injury 'any vulnus caused to a value other interest constitutionally protected will be a mirror image evaluated and assessed, the outcome of complete investigation, and in the absence of any automation (which in the single concrete instances, it is not impredicabile, even if not frequent, the hypothesis of the finding that only suffering or only the modification in pejus of the aspects of the dynamic relational life), the same, double aspect, much of the suffering, how much of the deprivation decrease in modification of the activity dynamic-relationships previously performed by the damaged party (in this sense, already Cass. Found that the moral harm is subjective, may be assessed and paid independently of the 'normal suffering' consequent to a physical injury, the Private Insurance Code (d. seven of September, no.
and subsequent amendments), in accordance with this orientation in the field of road accidents (c.c.) establishes two different criteria, the liquidators of non-pecuniary damage, in all its components: biological, moral and relational.
The Tables of the Milan Court analyzed only in reference to road accidents, the willingness of the Court of Cassation (judgment no.) are applicable throughout the national territory, the title of the policy unit liquidation of non-pecuniary damage to the person.
It follows that the same is also applicable in the case of injury to the integrity of the psycho-physical person resulting from the offence caused and the crimes that are outside the road traffic (Ex: medical malpractice).
The system of clearance of tables provided for the liquidation of non-pecuniary damage in all its aspects, expected average values, customizable, as far as the damage more to be tried (even with assumptions).
The Judge then, in a reference to moral damages, may exceed the limits of the minimum and maximum increment, taking into account the factual circumstances.
Consider, however, that the customization percentage meets the needs liquidatorie moral harm is wrong. The rest of the damage, moral prejudice, not the balance sheet and, as such, impossible to evaluate in an analytical way. In these cases, only the careful judgment of the judge may lead to a settlement proper. Only taking into account the actual suffering endured by the person offended, the gravity of the offense and all the elements of the case, the concrete, the compensation will be adequate. Pursuant to art. in fact: 'If the damage cannot be proven in its precise amount, is dismissed by the court with assessment equity'. In this case, if the person that asks for the compensation trial the an of the damage, i.e.
its existence, but it is not able to quantify it, the court may fill the gap in equity.
