Every person who is a citizen of Russia has the right to protect his honor and good name. These words are spelled out by the letter of the law in the Constitution of the Russian Federation and, therefore, are sacredly and unconditionally executed by the law enforcement, supervisory and judicial authorities of the country and are taken into account in federal laws and by-laws. However, in practice, protecting the honor, dignity and business reputation of a citizen becomes a more complex process than the pompous maxims of the main law of the Russian Federation.
The business reputation of an individual is a combination of personal and professional characteristics person, the prevailing opinion about the subject of civil law relations. According to Article 152 of the Civil Code of the Russian Federation, along with business reputation, the law also protects the honor and dignity of its citizens. Honor should be understood as a set of moral, ethical and spiritual qualities of a person, and dignity - realized by man perception of one's intrinsic value. Trespass against any of the above intangible rights is strictly punishable by law.
How is harm to honor and dignity determined?
A violation of a citizen's right to honor, dignity and business reputation occurs if the reliability of this information is affected. The dissemination of information discrediting you by a certain person in various ways serves as sufficient grounds for your appeal to the judicial system with the subsequent restoration of the lost right.
According to Article 152 of the Civil Code of the Russian Federation, in the framework of civil proceedings in this proceeding, the burden of proving that the disseminated information is reliable will lie entirely with the entity that deliberately released it into the public domain. A citizen whose business reputation has been damaged does not need to prove the unreliability of the disclosed information.
How to restore your business reputation?
Among the methods of protecting honor, dignity and business reputation in civil law, the following methods are used:
- refutation of the information presented;
- recovery from the proper defendant of compensation for the moral damage that was caused to the citizen.
Refutation of false information is possible in several forms, depending on the method in which the defamatory information was disseminated. However, regardless of the method, the refutation must be carried out publicly. In particular, the dissemination of information in the media is subject to refutation in the same sources, indicating the response of the person whose rights were violated. On the Internet, false information is subject to blocking and removal from all available sources. Documentation containing false information is subject to recall and removal from the document flow of the organization or structural unit.
How to evaluate the business reputation of an individual?
Handling a well-formed statement of claim to the magistrate's court with a demand for compensation for moral damage, you need to be prepared for the fact that you will have to prove your suffering and justify the required amount of compensation. The legislation does not establish either a limitation period or the maximum amount of compensation collected in relation to an attack on honor and dignity. Compensation is always collected in cash.
Among the main criteria for moral damage, Art. 1101 of the Civil Code of the Russian Federation indicates:
- the degree of guilt of the offender;
- the nature of the resulting physical and moral suffering of the victim;
- justice and reasonableness;
- individual characteristics of the victim and the circumstances of the harm.
Based on the practice of courts, the amount of compensation to be recovered, as a rule, corresponds to that indicated in the application, provided that it complies with the principles of reasonableness. However, it will be necessary to answer a number of questions to the court regarding the moral suffering that has arisen, and also, if possible, confirm it with documents.
Criminal and administrative methods of protecting lost business reputation
In addition to civil law norms that ensure the protection of a citizen’s business reputation, in this situation it is also possible to turn to the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation.
Violation of honor and dignity in criminal law is called slander and is regulated by Article 128.1 of the Criminal Code of the Russian Federation. As punishment for such a crime, courts use fines and compulsory labor against the convicted person. Convenient and what to charge moral injury and you can receive a refutation order within the same criminal process if you indicate these requirements when filing an application with the court. And even despite the apparent insignificance of the punishment, we should not forget that malicious evasion of the punishment can lead the convicted person to have it revised for real time imprisonment. Insult within the framework of administrative proceedings is regulated by Art. 5.61 of the Code of Administrative Offenses of the Russian Federation and is punishable by an insignificant fine.
The right to use a business reputation allows a citizen to protect his honor and dignity from unlawful attacks on his good name, protect his personality from slander and insult, and bring the culprit to justice with the full rigor of current legislation.
Protection of the business reputation of a legal entity is not a new category in Russian law, but there are still many questions about it. The situation is simplified by the fact that cases are considered partly by arbitration courts. Their approach is usually considered more reasonable, and general courts are forced to follow arbitration courts.
The legislative framework
A whole list of articles in the Constitution mentions the right of citizens and organizations to personal dignity and reputation (Articles 21, 23, 34, 45 and 46). The Basic Law obliges the exercise of the right to freedom of expression, acting reasonably and with prudence, and submits such disputes to the jurisdiction of the courts.
The Civil Code reveals the provisions of the Constitution on business reputation and personal dignity and describes the means of protection and the mechanism for their application.
How to proceed is mentioned in the section on intangible benefits and in part in the section on compensation for harm.
For clarification, one can refer to a number of resolutions of the RF Armed Forces devoted to the infliction of moral harm, the actual protection of the business reputation of organizations, the application of the norms of the Constitution, etc.
Disputes about the violation of intangible benefits are mentioned in other resolutions of the Plenum, in particular on the application of the provisions of international treaties and the Basic Law of the country.
From time to time, courts at the regional level conduct generalizations of practice, and its results are regularly published. Similar reviews were issued by the RF Armed Forces in 2007 and 2016.
You should refer to international treaties and acts affecting the right to protect business reputation.
The Convention for the Protection of Human Rights, which forms the basis for the activities of the ECHR, occupies a special position. Russian courts, in particular, the Armed Forces of the Russian Federation, actively apply the acts of this court, adopted against the Russian Federation and other countries party to the Convention.
It is difficult to find a topic so extensively discussed by representatives of the judicial system as the protection of honor and business reputation of a legal entity.
Changes in legislation in 2013
The accumulated judicial practice has made it possible to introduce changes to the Civil Code that expand the possibilities for protecting the honor and business reputation of a legal entity. What are they?
- the court has the right to establish the fact of violation of non-property rights and publish its decision;
- if a refutation is insufficient, the court has the right to oblige other persons to remove the relevant information;
- use as a protective measure the seizure of material media with defamatory information and its destruction without compensation to the owner of the media;
- prohibit the dissemination of any information that does not correspond to reality and is not of an exclusively vicious nature.
Changes in legislation have led to the fact that the protection of the business reputation of a legal entity is based on Article 150 of the Civil Code. She lists methods and means of protecting business reputation.
Some features of the protection of legal entities
The practice of applying legislation in this area shows that, on the one hand, the business reputation of individuals and legal entities has the same status. But we must not forget about some nuances.
The reputation of an organization may be transferred to a successor as a result of a merger, division or reorganization. If the owner of the enterprise changes as a result of the transaction, the business reputation is transferred along with all rights.
But this only applies to commercial organizations. Simply put, buyers evaluate a product by remembering the brand or other designation that allows them to identify it with a specific manufacturer. So the case to protect the business reputation of a legal entity can be initiated either by the successor or the new owner of the organization.
In general, the legislator maintains the unity of legislation regulating the status of citizens and organizations, excluding the emergence of unnecessary conflicts.
Reputation as an intangible benefit
The Civil Code mentions the dignity and business reputation of a person several times. The first time - in the part that equates the owners of this benefit: people and organizations, the second - in the provisions on a simple partnership, the third - in the clauses on a commercial concession agreement.
As a punishment for administrative violations, it is prohibited to choose measures that would in one way or another affect how customers and partners evaluate the goods and services of the punished organization.
One of the signs of unfair competition is the dissemination of defamatory, distorting or other information that negatively affects third parties’ assessment of the goods or services of a competing company.
It is not for nothing that legislation calls some benefits intangible; they do not have an exact monetary value, and it always remains approximate. Both legislator and judicial practice in fact, it is recognized that a violation, in particular, of business reputation cannot be fully compensated. Due to this, the protection of the business reputation of a legal entity remains open. So how is reputation assessed?
Assessment of infringement of rights in material terms
What are they guided by in terms of calculations when initiating cases to protect the business reputation of a legal entity?
It is part of intangible assets according to the Accounting Rules as amended on December 27, 2007, order 153n. The assessment is made based on the premium that the buyer is willing to pay when purchasing goods from a particular manufacturer.
The assessment also includes lost profits and contracts that could have been concluded. The information in connection with which is submitted must have a direct impact on the plaintiff’s business activities. A mere statement that the defendant's actions caused damages is not enough.
Essential circumstances
Judicial practice on the protection of the business reputation of a legal entity obliges the court to clarify the following points:
- whether there was a fact of dissemination of information;
- whether these facts actually took place;
- whether the information was defamatory.
Information is considered widely disseminated if it is published through the press, the Internet, orally or writing. This also includes statements made in public, in front of a crowd of people. Disclosure of information to even one person is sufficient.
On the second point, it becomes clear whether the event took place, whether the plaintiff had anything to do with it, and whether it occurred at the time indicated in the disputed information.
Information is considered defamatory if it alleges a violation of current legislation, in particular competition rules, business ethics, business customs and other actions that have negative character and that can affect your reputation.
It should be noted that the dissemination of information that is not true, but is not recognized as defamatory, can also be the subject of legal proceedings according to the 2013 amendments. Otherwise, by mixing similar concepts due to misunderstanding, the plaintiff risks losing a case that is justified.
What does not fall under defamatory and false information?
Judicial practice on the protection of the business reputation of a legal entity excludes statements or information of the following nature from falling under the definition of defamatory information.
From a legal point of view, statements made by a specific person may be in the nature of a value judgment and represent solely the person’s personal opinion about an event. They cannot be verified for their actual existence.
If the information makes a statement about facts or events that took place, it cannot be perceived as a value judgment.
So far, courts have not been able to fully distinguish between what is a statement of fact and what is a judgment. Especially in cases where participants are involved in political activities.
Thus, having negative statements addressed to him, including the use of profanity, the plaintiff runs the risk of having the court accept this information as a judgment. However, the fate of the claim depends on the level of literacy of the position developed by the lawyer representing the defendant and the explanations given by the defendant.
Borderline with libel
Proceedings to protect the business reputation of individuals and legal entities often involve libel, which is an act falling under the provisions of the Criminal Code.
What is the difference between them? Slander is a deliberate lie, and the person who spread it understood that it was actually untrue.
In practice, it is almost never possible to prove slander, that is, a targeted, conscious lie, which is why a lot of cases of this kind are considered in civil and arbitration proceedings.
Moral injury
Since the 90s, the question has been raised about how to combine the protection of a legal entity’s business reputation and moral damages. Courts long time could not fully formulate their opinion on this matter.
In 2013 in Art. 152 Civil Code made changes. In particular, the last paragraph of this article makes a reservation that measures aimed at protecting honor and dignity also apply to organizations. An exception is established for the recovery of moral damages.
Why is that? Moral harm is the suffering and experience of a person in connection with illegal actions defendant. In addition, the law gives the organization the right to recover damages, for which average citizen can't count.
By this, those wishing to ensure the protection of the business reputation of a legal entity from defamation (spreading lies) are not disadvantaged, but are given the same protection as citizens. How correct the position is is another question, especially since the ECHR has more than once referred to compensation for non-material damage to the organization.
Claim structure
The claim is drawn up in accordance with the requirements of procedural legislation. There is some difference between applications to arbitration and general court. A sample claim for the protection of the business reputation of a legal entity is usually designed to accommodate this difference.
The document is drawn up according to the following scheme:
- name of the court;
- information about the plaintiff (full name of the organization and location according to constituent documents and entries in the Unified State Register of Legal Entities, as well as full full name. and actual residential address);
- similar information about the defendant (the author of the material, or its distributor, or both);
- similar information about a third party (one whose rights are still affected by the lawsuit, for example an employee who disseminated information using his official position);
- circumstances that forced the claim to be sent to court (all three components described above);
- norms on legislation, links to clarifications of the Armed Forces of the Russian Federation and Resolutions of the Plenums;
- arguments and references to evidence supporting the plaintiff’s position;
- requirements (what exactly the plaintiff asks the court to do to protect his rights);
- a list of attached documents or evidence of their sending to the defendant along with a copy of the claim, if the materials were transferred to the arbitration court;
- signature and date of filing the claim.
The statute of limitations for filing a lawsuit is 12 months from the date of publication of the materials.
If the representative is acting under a power of attorney, a copy of it is attached. A copy of the document confirming the authority of the official who signed the claim or power of attorney for representation is also attached.
The practice of going to court shows that samples are sometimes not enough to prepare a claim to protect the business reputation of a legal entity. It is advisable to involve a specialist who has practice in a similar field.
Which court is the lawsuit filed in?
Claims for the protection of the business reputation of a legal entity are considered by courts of general jurisdiction and arbitration courts. How is the competence of courts differentiated?
If the information disputed by an entrepreneur or commercial organization does not relate to entrepreneurial activity, the case is being considered by the district court in the first instance.
This is the case, for example, with lawyers, whose activities are not considered entrepreneurship by law. This also includes organizations or legal entities that are not engaged in business.
commercial activity or entrepreneurship is the provision of services or the sale of goods for the purpose of distributing profits among the participants or founders of the organization. If such activity takes place, but its result is aimed at supporting the activity, for example, to pay for utilities, rent, the organization cannot be assigned the status of a merchant.
Claims regarding the reputation of government bodies or institutions performing public functions, in particular the Pension Fund of the Russian Federation, the MFC, etc., are not accepted by the courts. The motivation is that such persons perform administrative functions.
If the dispute does not affect the plaintiff's economic activity, but is rather regulated by labor law, it should be dealt with in a general court.
If information is disseminated regarding the quality of goods and services, violations of the rules of business ethics (all that was indicated above about unfair competition), then the application for the protection of the business reputation of a legal entity falls within the competence of arbitration justice.
Applicable evidence
Video materials and newspaper releases may not be preserved in archives, and the plaintiff has the right to present any evidence supporting the claim. For example, testimonies of witnesses who watched the program, copies of programs or materials posted on the Internet. This also includes the program schedule or other messages from the channel about the time of release of the corresponding material.
In this case, in the case of protecting the business reputation of a legal entity, the court will accept as evidence a certificate from an organization engaged in monitoring the activities of the media. It will serve as confirmation of the release of the program and its content.
In addition, plaintiffs use the services of notaries, who record the fact that information is located on a page on the Internet in preparation for trial so that the owner does not have time to delete the information.
In the arbitration process, circumstances confirmed during the exercise by the notary of his powers do not require additional confirmation. There is no similar provision in the Code of Civil Procedure.
How proof is built
General rule states that each party is obliged to prove the circumstances to which it refers. The described category of cases provides for some exceptions; in particular, the defendant is obliged to prove the validity of the information disseminated by him.
As mentioned above, the assessment of the circumstances of the case is given on three points:
- fact of distribution;
- the information is not true;
- the information is defamatory.
In its review, the RF Supreme Court refers to the need for an examination. It is appointed to identify the significance of the effect of the distribution of actions by the defendant, to identify plagiarism on the part of the plaintiff and whether the statements are defamatory.
If an assessment is not given on the above points or an examination is not carried out, the risk of decisions being canceled increases significantly.
Difficulties of proof
First, it is difficult to prove a connection between the damage and the actions of the defendant. Economic activity is, in principle, based on risks, and it is difficult to link the fall of shares or the termination of contracts or the refusal of buyers to purchase goods or use services with the dissemination of defamatory information.
It should be noted that protecting the business reputation of a legal entity from a citizen is based on the same rules and does not have any specifics.
In conclusion - about claims
Protecting the business reputation of a legal entity provides a wide range of ways to influence the defendant. The law assumes the following options:
- the imposition of an obligation by the court to disseminate a refutation in the same way as the original information was disseminated;
- refutation of information through the media should be done in the press organs that disseminated the information;
- the document issued by the organization is subject to cancellation or is issued in exchange new document with refutations;
- oblige the guilty parties to delete the information and (or) oblige the suppression of its further dissemination, as well as oblige the authorities to seize the material media of such information and destroy them without compensation to the owner;
- if the information is distributed on the Internet, the plaintiff has the right to demand the removal of the information and the dissemination of a refutation in a manner that would facilitate its dissemination;
- it is allowed to ask the court to establish the fact that the information does not correspond to reality.
The plaintiff must choose one or more methods that best suit his circumstances and most adequately protect the business reputation of the legal entity.
R.A. SABITOV,
doctor legal sciences, Professor of the Department of Criminal Law and Criminology of Chelyabinsk law institute Ministry of Internal Affairs of Russia, Honored Lawyer of the Russian Federation,
A.Yu. LITVINENKO,
Lecturer at the Department of Criminal Law and Criminology, Chelyabinsk Law Institute of the Ministry of Internal Affairs of Russia
The article discusses the concepts of “business reputation”, “moral damage”, theoretical and practical problems related to the protection of the business reputation of a legal entity; attention is focused on the lack of criminal legal protection of the business reputation of a legal entity in cases of slander, in connection with which it is proposed to supplement the Criminal Code of the Russian Federation with Article 178.1 “Defamation of a legal entity.”
Concepts “business reputation”, “moral injury”, the theoretical and practical problems connected to protection of business reputation of the juridical person are considered in the article. In the article it is paid attention to the absence of a criminal-right protection of business reputation of the juridical person in cases of slander, in this connection it is offered to fix in Criminal Code of the Russian Federation cl. 178.1 “Slander concerning the juridical person.”
Keywords: business reputation, moral injury, suffering, injured person, individual, legal person.
In criminal law, a victim of a crime is undoubtedly an individual who has suffered physical, property, or moral harm as a result of a crime. The issue of recognizing a legal entity as a victim of a crime in theory is resolved ambiguously. Thus, some textbooks on criminal law categorically state that the victim of a crime is the person against whom the crime was committed; Only an individual can be considered a victim in the criminal legal sense, and a legal entity is the subject of a civil legal relationship. Many authors limit themselves to pointing out that the victim of a crime is an individual and do not address the issue of recognizing a legal entity as such.
IN investigative practice The issue of recognizing a legal entity that has suffered some kind of harm as a victim is also resolved ambiguously. So, V.V. Afisov, having studied 450 criminal cases of this type of crime, found that only in 37% of them the victim was recognized as a legal entity, while in other cases, interrogators and investigators recognized a representative of the legal entity as the victim.
In our opinion, victims of crimes in the criminal legal sense can be not only individuals, but also legal entities. This opinion was shared by some pre-revolutionary and Soviet scientists. For example, N.S. Tagantsev believed that “the victim of a criminal act is, first of all, the owner of that law-protected interest that was directly damaged or endangered by the criminal, no matter whether such owner is an individual person, a set of persons, constituting or not constituting a legal entity, including here and the state itself." P.S. Dagel identified an individual or legal entity as a sign of a victim. Among modern scientists who share this point of view, we can note E.L. Sidorenko and A.V. Sumachev, who published works on the victim in criminal law3.
In favor of recognizing a legal entity as a victim of a crime, we present the following arguments.
Firstly, according to Art. 42 of the Code of Criminal Procedure of the Russian Federation, a legal entity is recognized as a victim if a crime causes damage to its property and business reputation. In this case, the rights of the victim are exercised by a representative of the legal entity. Here we agree with those lawyers who believe that the substantive concept of the victim should be enshrined in criminal law. Until it is included in the Criminal Code of the Russian Federation, one should be guided by the criminal procedural concept of the victim.
The criminal procedure law classifies only individuals and legal entities as victims. A legal entity is an organization that has ownership, economic management or operational management separate property and is liable for its obligations with this property, can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, be a plaintiff and defendant in court (clause 1 of article 48 of the Civil Code of the Russian Federation). This concept of a legal entity does not cover the Russian Federation, constituent entities of the Russian Federation, urban, rural settlements and others municipalities(Articles 124-127 of the Civil Code of the Russian Federation). However, the listed subjects of law may be harmed by a criminal act, and they should be recognized as victims of crimes on an equal basis with individuals and legal entities.
Secondly, the task of criminal law is to protect not only the rights and freedoms of man and citizen, but also public relations in the field of economics, provision of public and municipal government, in which legal entities operate, government bodies and local governments.
Thirdly, according to administrative legislation, a victim is both an individual and a legal entity who administrative offense property or moral damage was caused (Article 25.2 of the Code of Administrative Offenses of the Russian Federation).
Fourthly, the articles of the Special Part of the Criminal Code of the Russian Federation often refer to causing damage or a significant violation of legally protected interests not only of citizens, but also of organizations, society or the state (Articles 171-173, 185, 201, 202, 285-286, 288 Criminal Code of the Russian Federation, etc.). Causing harm to organizations or the state by a crime should entail recognition of them as victims.
The victim of a crime is a legal entity in the event of damage to its property or business reputation, and not a representative of a legal entity and not the head of its representative office or branch. That is why in Part 9 of Art. 42 of the Code of Criminal Procedure of the Russian Federation states that if a legal entity is recognized as a victim, its rights are exercised by a representative.
Despite the fact that the rules of the Civil Code of the Russian Federation apply to entrepreneurial activities of citizens carried out without forming a legal entity, an individual entrepreneur is not a legal entity. We cannot agree with the statement of V.V. Afisov that, taking into account the provisions of civil legislation, individual entrepreneurs should be classified as legal entities if the crime caused (or could cause) damage to them economic activity. Chapter 3 of the Civil Code of the Russian Federation, on the contrary, includes individual entrepreneurs among the number of individuals, due to which they must be recognized as injured individuals.
What types of harm can be caused to individuals? N.S. Tagantsev wrote that the harm caused to victims of various groups can be material, property or ideal, not finding tangible expression. Undoubtedly, a legal entity may suffer property damage, which consists of violating the powers of the owner (possessor) of property by illegally seizing it, damaging it, destroying it, or failing to provide it with property. In Art. 42 of the Code of Criminal Procedure of the Russian Federation states that the victim is a legal entity if a crime causes damage to its property. Physical harm cannot be caused to a legal entity, since under physical harm understand the damage to human life or health.
The question of the possibility of causing moral harm to a legal entity remains highly controversial. Some civil experts argue that a legal entity may suffer moral harm. Such harm has an objective content and consists in a negative assessment by third parties of the qualities of a legal entity and its products. Moral damage can be expressed in discrimination, undermining the authority of a legal entity. In paragraph 7 of Art. 152 of the Civil Code of the Russian Federation states that the rules of this article on the protection of a citizen’s business reputation are correspondingly applied to the protection of the business reputation of a legal entity. In Art. 17 of the Model Civil Code, adopted on October 29, 1994 at the fifth plenary meeting of the Interparliamentary Assembly of the CIS Member States, directly states that “in cases provided for by this Code and other laws, moral damage may be compensated to a legal entity.”
However, many lawyers reasonably believe that moral damage cannot be caused to a legal entity.
Clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 No. 10 “Some issues of application of legislation on compensation for moral harm” refers to the infliction of moral or physical suffering by actions (inaction) encroaching on intangible benefits belonging to a citizen or violating his personal non-property rights or violating the property rights of citizens. In this concept, the resolution connects the infliction of moral harm only with the citizen. A legal entity, unlike a natural person, cannot experience moral or physical suffering, since it is an artificial legal construct that does not have a bodily shell, has neither consciousness nor psyche, and is incapable of emotions and experiences. The concept of “suffering” means physical or mental pain that a legal entity is unable to endure.
However, damage to the business reputation of a legal entity may be caused. There is no concept of business reputation in legislation. It is also absent from the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities.” In some publications, an attempt has been made to define the concept in question as a certain opinion about an individual or legal entity, an assessment of its activities. For example, A.L. Anisimov believes that a citizen’s business reputation is determined by his level of qualifications and characteristics professional activity, and a legal entity - by an assessment of production or other activities in accordance with its legal status in the conditions of business and market relations. A.M. Erdelevsky defines the business reputation of an individual and legal entity as relating to the socially significant activities of a person, his assessment by society, the opinion of society about the qualities, advantages and disadvantages of this person.
T. Shulepova, judge of the Arbitration Court Sverdlovsk region, explains that the concept of “business reputation” is defined by the court as an established opinion about an individual or legal entity as a participant in commercial turnover.
The given concepts of a legal entity are based on its linguistic interpretation. For example, in one of the dictionaries reputation (from the French reputation and the Latin reputation - thinking, thinking) is defined as an established general opinion about the merits or demerits of someone, something, public assessment. According to the dictionary of S.I. Ozhegov and N.Yu. A Swedish reputation is a public assessment acquired by someone or something, a general opinion about the qualities, advantages and disadvantages of someone or something.
Civilists associate the business reputation of a legal entity with entrepreneurial relations, commercial and business turnover. In our opinion, the concept of business reputation must be interpreted in such a way that it is possible to protect not only a legal entity engaged in business activities, but also non-profit organizations (public and religious organizations, foundations, institutions, associations and unions). The word "business" means "relating to work", public, official activities. It is won by the deeds of the organization. From this point of view, business reputation can be possessed by, for example, political parties, educational, healthcare, cultural institutions that do not carry out entrepreneurial activities.
Business reputation can be positive (good) or negative (bad). Legal protection subject to a positive business reputation. Apparently, it is impossible to exclude the protection of an organization’s reputation even if it has further deteriorated as a result of the dissemination of defamatory information or other illegal actions. Harm to a legal entity can be caused not only by the loss of a positive reputation, but also by diminishing it.
Thus, the business reputation of a legal entity is a positive or negative public (possibly state) assessment of its activities, advantages, disadvantages and qualities acquired by a legal entity.
Damage to the business reputation of a legal entity is not a type of moral harm, since the organization cannot experience physical and moral suffering as a result of committing a crime. That is why in Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, it is allocated to independent species harm.
Reputation is a sign of slander, provided for in Art. 129 of the Criminal Code of the Russian Federation. However, this article does not apply to a legal entity, since the object of this crime is a person. Moreover, not a single article of the Special Part of the Criminal Code of the Russian Federation lists causing damage to the business reputation of a legal entity as an element of a crime. Nevertheless, such harm can be caused as a result of the commission of economic, environmental, official and other crimes both by the employees of the organization (from within) and by outsiders (from the outside). In this case, the business reputation of a legal entity acts as an additional object of encroachment.
Damage to business reputation can be caused, for example, as a result of the illegal use of a trademark (Article 180 of the Criminal Code of the Russian Federation), receipt and disclosure of information constituting commercial, tax or banking secrets (Article 183 of the Criminal Code of the Russian Federation), fictitious bankruptcy of Art. 197 of the Criminal Code of the Russian Federation), commercial bribery (Article 204 of the Criminal Code of the Russian Federation) and the commission of other crimes. For example, the use of someone else’s trademark negatively affects directly or indirectly the reputation of the quality of the product, the business reputation of its manufacturer and financial situation enterprises. Reputational harm is a type of those consequences of crimes that are expressed in causing significant harm to the rights and interests of the organization (Articles 201, 285, 286, 288, 292, 293, 330 of the Criminal Code of the Russian Federation).
A frequently encountered method of harming the business reputation of a legal entity is the dissemination of false defamatory information about it. The dissemination of such information means its publication in the press, broadcast on radio and television, dissemination on the Internet, presentation in a public speech, or communication in one form or another to at least one person. Defamatory, in particular, are information containing allegations of violation by a legal entity of the current legislation, dishonesty in the implementation of production, economic and entrepreneurial activities, violation of business ethics or business customs, incorrect, unethical behavior of a representative of a legal entity, which detract from its business reputation (p 7 Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities”).
Independent criminal liability for the dissemination of knowingly false information discrediting a legal entity is not provided for by criminal law. In our opinion, it should be established, since this act is capable of causing significant property and non-material harm.
Dissemination of deliberately false information discrediting an organization may be one of the ways to prepare for its raider takeover. The invading company organizes publications in the press, “custom” appearances on television, and sending slanderous letters to competing companies in order to discredit the owners, executives, managers or major shareholders of the target company. Accusatory articles, speeches and letters may relate to poor management of the enterprise, failure to fulfill contractual obligations, violation of the rights of employees and shareholders, alleged bankruptcy, inefficient use of property, etc.
Undermining the business reputation of a legal entity can be a way to eliminate competing entities from the market economic activity. In the context of the financial crisis, antimonopoly services have noted an increase in the number of complaints about unfair competition. Some companies resort to discrediting competitors by publishing in print media, distributing leaflets, sending letters to company clients. For example, one of the Yekaterinburg management companies posted leaflets in the entrances of houses in which they denigrated the organization that provides public services to their residents. Another company sent emails to clients of a competing company, telling them that the company had not delivered the goods on time, and that the real prices did not correspond to those stated in the online catalogue. Because of this, the company lost dozens of orders.
In our opinion, there is a gap in the criminal legislation, i.e. there is no criminal legal protection of the business reputation of legal entities. In order to eliminate it, we propose adding Chapter 22 “Crimes in the Sphere of Economic Activity” of the Criminal Code of the Russian Federation with Article 178.1 “Defamation of a Legal Entity” with the following content:
1. Dissemination of knowingly false information that undermines the reputation of a legal entity is punishable...
2. The same act committed in a public speech, publicly displayed work or means mass media, is punished...
Bibliography
1 See: Criminal law of Russia. Part General: Textbook. for universities / Rep. ed. L.L. Kruglikov. - M., 1999. P. 132.
2 See: Criminal law of Russia. Part General: Textbook. for universities / Under. ed. F.R. Sundurova. - Kazan, 2007. P. 200.
3 See, for example: Kvashis V.E. Fundamentals of victimology. Problems of protecting the rights of crime victims. - M., 1999. S. 129, 142; Russian criminal law: Textbook: In 2 vols. T. 1: a common part/ Ed. L.V. Inogamova-Khegai, V.S. Komisarova, A.I. Raroga. - M., 2008. P. 121-122.
4 See: Afisov V.V. Procedural position of a legal entity as a victim in criminal proceedings in Russia: Author's abstract. dis. ...cand. legal Sci. - Tyumen, 2008. P. 11.
5 Tagantsev N.S. Russian criminal law: Lectures. Part General: In 2 vols. T 2. - M., 1994. P. 13.
6 See: Dagel P.S. Victim in Soviet criminal law // Victim of a crime: thematic collection. - Vladivostok, 1974. P. 18.
7 See: Sidorenko E.L. Negative behavior of the victim and the criminal law. - St. Petersburg, 2003. P. 15; Sumachev A.V. Victim in criminal law (analysis of the main problems). - Nizhnevartovsk, 2005. P. 65.
8 See: Yani P. Legislative definition of a crime victim // Russian justice. 1995. No. 4. P. 41; Sidorenko E.L. Decree. Op. P. 13; Sumachev A.V. Decree. Op. P. 47.
9 See: Afisov V.V. Decree. slave. P. 11.
10 See: Tagantsev N.S. Decree. Op. P. 13.
11 See: Malinin V.B., Parfenov A.F. The objective side of the crime. - St. Petersburg, 2004. P. 88.
12 See: Afanasyeva I.V., Belova D.A. Compensation for moral damage to a legal entity // Lawyer. 2002. No. 8. P. 29-32.
13 See: Plotnikov V. Business reputation as an object of civil legal protection // Economy and Law. 1995. No. 11.
pp. 17-19.
14 See: Criminal procedural law of the Russian Federation: Textbook. / Rep. ed. P.A. Lupinskaya. - M., 2001 P. 103.
15 Information bulletin of the Interparliamentary Assembly of the CIS Member States. 1995. June.
16 See, for example: Bagdanov O.V. Compensation for moral damage: Textbook. allowance. - Saratov, 2005. P. 27-28; Erdelevsky A.M. Compensation for moral damage: analysis and commentary on legislation and judicial practice. - M., 2004.
pp. 122-123; Afisov V.V. Decree. Op. pp. 12-13; Bonner A. Is it possible to cause moral harm to a legal entity? // Russian justice. 1999. No. 7. P. 15.
17 Bulletin of the RF Armed Forces. 1995. No. 3. P. 16-17.
18 See: Erdelevsky A.M. Decree. Op. P. 123.
19 See: Ozhegov S.I., Shvedova N.Yu. Dictionary Russian language. - M., 1999. P. 771.
20 Russian newspaper. 2005. March 15.
21 See: Anisimov A.L. Honor, dignity and business reputation are protected by law. - M., 2004. P. 3.
22 See: Erdelevsky A.M. Decree. Op. P. 116.
23 See: Shulepova T. The honest name of business // Russian newspaper. 2007. April 3
24 See: Modern dictionary foreign words. - St. Petersburg, 1994. P. 528.
25 See: Ozhegov S.I., Shvedova N.Yu. Decree. Op. P. 677.
26 Ibid. P. 159.
27 See: Anisimov S.N. Raiding in Russia. Features of national capture. - St. Petersburg, 2007. P. 190-193; Faenson M.I., Pimanova A.A. Raiding (hostile takeover of enterprises): practice of modern Russia. - M., 2007. P. 34,
39-40.
28 See: Vylegzhanina U. “Black Banner”. Cases of unfair competition have become more frequent // Rossiyskaya Gazeta. 2009. July 9.
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On October 1, 2013, changes to the Civil Code came into force, which prohibited legal entities from seeking compensation for moral damage. In March of this year, the Presidium of the Supreme Court stated that legal entities can protect their reputation by refuting published information and recovering damages. But St. Petersburg University decided that he still has the right to a million dollar compensation for damage caused to the university’s business reputation from an incriminating article in an online publication. The case reached the Supreme Court, which explained why the prohibition on legal entities from seeking compensation for moral damage does not prevent them from demanding compensation for damage caused to the company’s reputation.
Refutation is not enough to restore justice
Administration of St. Petersburg state university Trade unions were outraged by the publication of the local media - Zaks.ru. The note cited the position of the youth public organization"Vesna", which accused the rector of the university, Alexander Zapesotsky, of violating the constitutional right of students to freedom of speech.
A year and a half after publication, the University appealed to the Arbitration Court of St. Petersburg and the Leningrad Region with a claim to protect business reputation against the editors of the site and its founder (case No. A56-58502/2015). The applicant demanded that the following information be declared untrue and discrediting the business reputation of the university: "The administration of the St. Petersburg Humanitarian University of Trade Unions (SPbSUP) and the rector Alexander Zapesotsky violate Article 29 of the Constitution, which guarantees citizens freedom of speech". These are the words of representatives of the “Spring” movement that the publication quoted.
In addition, the plaintiff asked to oblige the defendant to remove the article from the publication’s website, post a refutation and recover 1 million rubles from the media. as compensation for damage caused to the business reputation of the university.
The first instance recognized that the material discredits the business reputation of the university, but refused to collect millions in compensation. According to the court, the plaintiff did not present evidence that confirms the real Negative consequences from the published article for the reputation of the university. Judge Svetlana Astritskaya only decided to remove the controversial material from the publication’s website, publish a refutation and collect 6,000 rubles in favor of the university. for state duty.
The appeal came to a different conclusion and satisfied the plaintiff's claims in full. In his decision appellate authority referred to the fact that defendants in such disputes can be not only the authors of statements, but also those who disseminated this information (clause 5 of the Resolution of the Plenum of the Supreme Court of February 24, 2005 No. 3 “On judicial practice in cases of protecting the honor and dignity of citizens , as well as business reputation of citizens and legal entities"). The Arbitration Court of the North-Western District overturned the appeal decision and upheld the first instance act.
VS: "Legal entities can compensate for reputational damage"
The university did not agree with the district court's decision and appealed it to the Supreme Court in order to get the act of appeal upheld. Lawyer Alexander Makarov from Reznik, Gagarin and Partners law firm, representing the interests of the plaintiff, assured at the court hearing that a substitution of concepts had occurred in the process: “The courts indicated that the plaintiff does not have the right to compensation for moral damage, but the applicant asked for something else - to compensate for the reputational damage caused, the content of which differs from the first.” .
The lawyer emphasized that Art. 152 of the Civil Code (“Protection of honor, dignity and business reputation”) in the current version does not exclude the recovery of reputational intangible damage in favor of a legal entity. The Supreme Court then denied the applicant, upholding the acts of the first instance and the district court. Thus, the media will not have to pay millions in compensation (see).
In its act, the Supreme Court points out that the prohibition on legal entities from seeking compensation for moral damage does not prevent them from demanding compensation for damage caused to the company’s reputation. In support of their position, the judges of the Supreme Court refer to the Determination of the Constitutional Court of December 4, 2003 No. 508-O: "Absence direct instructions in the law on the method of protecting the business reputation of legal entities does not deprive them of the right to make claims for compensation for losses, including intangible ones caused by derogation of business reputation, or intangible damage that has its own content".
The Judicial Collegium for Economic Disputes of the Supreme Court explains why it refused to satisfy the university’s demands: the plaintiff did not prove a certain level your business reputation and its derogation.
Pravo.ru experts: “In essence, the dispute was resolved correctly”
Dmitry Seregin, advisor law firm"YUST", explains that in the Civil Code, moral harm refers mainly to physical and moral suffering: “In this sense, moral harm really cannot be caused to a legal entity.” However, damage to business reputation should be distinguished from moral damage, for example, a decrease in trust in a legal entity due to the dissemination of defamatory information, Seryogin emphasizes: “In this case, the injured legal entity may demand compensation for losses, but for this it must prove the fact of their occurrence, connection with undermining their reputation and justifying the size."
Anatoly Semenov, public ombudsman for the protection of the rights of entrepreneurs in the field of intellectual property, considers the reference of the Supreme Court to the decision of the Constitutional Court to be controversial. In his opinion, the Constitutional Court in its Determination did not indicate the admissibility of applying “compensation for moral damage” by analogy, but the possibility of demanding “compensation for losses.” The word “compensation” in this context does not mean a special sanction, but is synonymous with “compensation” or “penalty,” the lawyer believes. Semenov doubts that the position of the Constitutional Court in this case can overcome the direct instructions of the law and create new category"intangible losses".
Pavel Khlustov, lawyer, partner at Barshchevsky and Partners, I am sure that the dispute has been resolved correctly on the merits, but the legal basis for the stated claim as intangible damages is incorrect. The expert considers any statements that, by its legal nature, compensation for moral damage to a legal entity to be some kind of “intangible losses”, are doubtful, given the absence of a corresponding norm in the current legislation. In addition, we should not forget that the recovery of moral damage or non-material losses, by its legal nature, is a measure of legal liability, explains Khlustov: “The latter can only occur for those acts that are recognized as offenses by the law in force at the time of their commission (Article 54 Constitution)". The speaker reminds that a legal entity can demand recovery of damage caused to its business reputation using the rules on the recovery of damages: “And not the provisions that regulate compensation for moral damage, or the “intangible damages” that grate on every lawyer.”
In all four parts of the Civil Code of the Russian Federation, the business reputation of a legal entity is mentioned only three times. One of these references is in the first part of the Civil Code of the Russian Federation, which indicates that the rules on the protection of a citizen’s business reputation, provided for in Art. 152 of the Civil Code of the Russian Federation, accordingly, apply to the protection of the business reputation of a legal entity. The second mention refers to a commercial concession agreement (clause 2 of Article 1027 of the Civil Code of the Russian Federation), and the third - to a simple partnership (clause 1 of Article 1042 of the Civil Code of the Russian Federation).
Based on these provisions, the following conclusions can be drawn:
1) the business reputation of a legal entity is an intangible benefit;
2) the business reputation of a legal entity, unlike the business reputation of a citizen, has the sign of transferability (clause 2 of Article 1027 and clause 1 of Article 1042 of the Civil Code of the Russian Federation);
3) the methods of protecting the business reputation of a legal entity and a citizen are identical.
In addition, business reputation has a sign of alienability, but only in the field of entrepreneurship. The alienation of business reputation occurs together with the alienation of the enterprise as a property complex. The transfer of goodwill in this case is possible, since the enterprise includes a commercial designation. The alienation of business reputation is also carried out together with the alienation of a trademark. Thus, the alienation of business reputation is carried out together with a means of individualization of legal entities, goods, works, services and enterprises.
The business reputation of a legal entity, among other things, can be assessed. The cost of a positive business reputation in accordance with Section VIII"Business reputation" Regulations on accounting“Accounting for intangible assets”, approved by Order of the Ministry of Finance of the Russian Federation dated December 27, 2007 N 153n, is equal to the premium to the price paid by the buyer in anticipation of future economic benefits in connection with the acquired unidentifiable assets.
The Supreme Court of the Russian Federation drew attention to the special importance of business reputation for a legal entity in Resolution No. 3 of February 24, 2005 “On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities” (hereinafter referred to as the Supreme Court Resolution RF No. 3). The court indicated that the business reputation of legal entities is one of the conditions for their successful activities. Also, the special importance of business reputation for a legal entity is enshrined at the legislative level. Code of Administrative Offenses of the Russian Federation in Art. 3.1 establishes a rule according to which administrative punishment cannot be aimed at harming the business reputation of a legal entity. In accordance with Art. 14 of the Federal Law “On Protection of Competition” establishes a ban on unfair competition in the form of dissemination of false, inaccurate or distorted information that may cause losses to a business entity or damage its business reputation.
Thus, the business reputation of a legal entity is an intangible asset that has a direct impact on the activities of this entity. A positive business reputation helps attract new clients; a negative one can turn out to be an insurmountable barrier between an organization and its potential counterparties.
It is worth immediately noting that Article 33 of the Arbitration Procedure Code of the Russian Federation establishes special jurisdiction of arbitration courts in cases of protection of business reputation in the field of business and other economic activities. Part 2 of Article 33 of the Arbitration Procedure Code of the Russian Federation states that special jurisdiction in these cases is established regardless of the subject composition of the legal relationship from which the dispute arose. If a dispute about the protection of business reputation arises in an area not related to business and other economic activities, then, regardless of the subject composition, such a dispute will be subject to the jurisdiction of a court of general jurisdiction (clause 3 of Resolution of the Supreme Court of the Russian Federation No. 3).
Analysis of paragraph 1 and paragraph 7 of Art. 152 of the Civil Code of the Russian Federation allows us to conclude that a legal entity has the right to seek judicial protection of business reputation if three circumstances occur together: the fact of dissemination of information about the legal entity, the defamatory nature of this information and the discrepancy between its reality.
Resolution of the Supreme Court of the Russian Federation No. 3 reveals the content of these concepts.
Dissemination of information is understood quite broadly. Distribution can be carried out, for example, in print, on radio and television, on the Internet, in public speaking, statements addressed to officials, oral communication.
Untrue information is statements about facts or events that did not take place in reality at the time to which the disputed information relates.
Defamatory information, in particular, includes information containing allegations of violation by a legal entity of the current legislation, dishonesty in the implementation of production, economic and entrepreneurial activities, violation of business ethics or business customs that detract from the business reputation of the legal entity.
In addition, the Supreme Court of the Russian Federation, in this Resolution, draws the attention of the courts to the fact that it is necessary to distinguish between statements of fact, the correspondence of which can be verified, and value judgments, opinions, beliefs that are not the subject of judicial protection under Art. 152 of the Civil Code of the Russian Federation, since, being an expression of the subjective opinion and views of a particular person, they cannot be verified for compliance with their reality.
If the dissemination of information discrediting business reputation occurred in the media, then the legal entity has the right to demand a refutation of this information in the same media. If the information is contained in a document emanating from an organization, then the legal entity has the right to demand replacement or cancellation of this document.
Ill-wishers may disseminate information that infringes on the rights or legally protected interests of a legal entity, but is not of a defamatory nature. In this case, paragraph 3 of Art. 152 of the Civil Code of the Russian Federation provides a legal entity with the right to publish its response in the same media in which the publication was made.
A legal entity, being a participant in business transactions, may suffer losses that will be caused by the dissemination of defamatory information about it. In these cases, the legislator, in addition to the possibility of refuting such information, gives the legal entity the right to demand compensation for losses, which means actual damage and lost profits.
When collecting damages, a legal entity may encounter some difficulties and, to a certain extent, injustice. The difficulties lie in the recovery of lost profits, which in practice, even in the case of a relationship sealed by an agreement, causes great difficulties. The injustice lies in the fact that even if a legal entity is compensated for real damage and lost profits, they may not cover all losses, since the impact of a media report containing defamatory information may last for for a long time. If the information was disseminated in printed publications, then over time its relevance will fade, but this information can be available on the Internet without any restrictions.
When defamatory information about a citizen is disseminated, the issue of “injustice” is resolved through compensation for moral damage. The Civil Code understands moral damage as physical or moral suffering that a legal entity, as an artificial entity, cannot experience. Accordingly, a legal entity has no right to demand compensation for moral damage. This conclusion is confirmed in judicial practice (Resolution of the Supreme Arbitration Court of the Russian Federation of August 5, 1997 N 1509/97; Resolution of the Supreme Arbitration Court of the Russian Federation of February 24, 1998 N 1785/97; Resolution of the Supreme Arbitration Court of the Russian Federation of December 1, 1998 N 813/98).
On the other hand, since 2003, there has been a certain tendency in judicial practice aimed at satisfying the claims of legal entities for compensation for moral damage caused by derogation of business reputation. The turning point was the Determination of the Constitutional Court of the Russian Federation of December 4, 2003 N 508-O “On the refusal to accept for consideration the complaint of citizen Sh. regarding the violation of his constitutional rights by paragraph 7 of Article 152 Civil Code Russian Federation" (hereinafter - Definition of the Constitutional Court of the Russian Federation N 508-O). In specified Definition contains a number of provisions that have expanded the possibilities of protecting the civil rights of legal entities:
- the applicability of a particular method of protecting violated civil rights to the protection of the business reputation of legal entities should be determined based on the nature of the legal entity;
- the absence of a direct indication in the law of the method of protecting the business reputation of legal entities does not deprive them of the right to make claims for compensation for losses, including intangible ones caused by derogation of business reputation, or intangible damage that has its own content (different from the content of moral damage caused to a citizen ).
The Constitutional Court of the Russian Federation in its Determination referred to the decision of the European Court of Human Rights of April 6, 2000 in the case “Company v. Portugal”. IN this decision The European Court indicated that the court cannot exclude the possibility of awarding compensation to a commercial company for intangible losses.
It is worth noting that the term “intangible losses” is not typical Russian legislation, since in accordance with Art. 15 of the Civil Code of the Russian Federation, losses are always material. On the other side, this term reflects the specifics of the harm caused to a legal entity.
In this regard, the legal dispute between OJSC and CJSC is very indicative (case No. A40-40374/04-89-467). The reason for the trial was the publication in the newspaper "K" of an article that, in the opinion of the JSC, discredited its business reputation. It is worth noting that the Moscow Arbitration Court, the Ninth Arbitration Court of Appeal and the Federal Arbitration Court of the Moscow District spoke favorably on the issue of recovery of reputational (intangible) damage caused to a legal entity by derogation of its business reputation.
The Moscow Arbitration Court, satisfying the claim for the recovery of reputational (intangible) damage, indicated that the damage to the reputation of the OJSC was expressed in the loss of confidence in the bank on the part of its clients, which resulted in a significant outflow Money from the bank. The court also agreed with the OJSC’s argument that the measure of impairment of business reputation is the amount of reduction in the volume of the deposit base.
In a different trial The legal entity also filed a claim for compensation for reputational damage (case No. A32-6861/2008-16/114). In this case, the Arbitration Court Krasnodar region by its decision dated 08/22/2008 and the Fifteenth Arbitration Court of Appeal, by its Resolution dated 12/08/2008, refused to recover reputational damage. The cassation instance sent the case for a new trial to the court of first instance, which, by its decision dated July 7, 2009, satisfied this requirement. 15 The AAC overturned the decision of the court of first instance regarding the recovery of reputational damage. At the same time, 15 AAS indicated that, firstly, only a citizen can experience moral or physical suffering, and, secondly, Art. 12 Civil Code of the Russian Federation and others federal laws do not provide for such a method of protection as recovery of reputational damage. Looking ahead, it should be said that the cassation court recognized the right of a legal entity to recover reputational damage (Resolution of the Federal Antimonopoly Service of the North Caucasus Region dated February 5, 2010 in case No. A32-6861/2008-16/114). Subsequently, this case reached the Supreme Arbitration Court of the Russian Federation, which upheld the decision of the Arbitration Court of the Krasnodar Territory dated July 7, 2009 and the Resolution of the Federal Arbitration Court of the North Caucasus Region dated February 5, 2010 in force, thereby indirectly confirming the right of a legal entity to compensation for moral damage (Determination of the Supreme Arbitration Court of the Russian Federation dated June 2, 2010 N VAS-6424/10).
Argument 15 of the AAS in case No. A32-6861/2008-16/114 regarding the fact that federal legislation does not provide for such a method of protection as the recovery of reputational damage can be contrasted with the following arguments 9 of the AAS in case No. A40-40374/04-89-467 .
9 AAS indicated that Art. 12 of the Civil Code of the Russian Federation contains such a method of protection as compensation for moral damage, and also provides for the possibility at the level of federal legislation to establish other methods of protection. In development of this norm, paragraph 5 of Art. 152 of the Civil Code of the Russian Federation indicates the possibility for a citizen to demand, in addition to a refutation of information and compensation for losses, also compensation for moral damage caused by the derogation of his business reputation. And paragraph 7 of the same article indicates that these rules also apply to the protection of the business reputation of a legal entity. In addition, 9 AAS referred to the Definition of the Constitutional Court of the Russian Federation N 508-O regarding the fact that the applicability of a specific method of protecting the business reputation of a legal entity should be decided taking into account the nature of the legal entity. Thus, 9 AAS actually concluded that such a method of protection as the recovery of reputational damage is contained in the legislation, although under a different name - “compensation for moral damage.” In other words, compensation for moral damage means the recovery of reputational damage (the legal nature of the legal entity is taken into account).
The possibility of recovering reputational damage is provided for in the already mentioned Resolution of the Supreme Court of the Russian Federation No. 3. Of those considered in Lately judicial disputes, which indicate the possibility of recovering reputational damage, we can highlight the Resolution of the Eighth Arbitration Court of Appeal dated November 2, 2009 in case No. A75-3887/2009.
The contradictory judicial practice that develops when compensating for moral damage to a legal entity is partly due to the paucity of legal regulation of this issue in the Civil Code of the Russian Federation. It is worth keeping in mind that the first part of the Civil Code of the Russian Federation was adopted in 1994, when market relations in our state were in their infancy. At that time, the developers of the Civil Code of the Russian Federation hardly expected that business reputation for a legal entity would have enormous importance. Market relations gradually developed, and over time, an urgent need arose for a detailed development of the issue of protecting the business reputation of a legal entity.
Protection of the business reputation of a legal entity can also be carried out within the framework of criminal proceedings. Yes, Art. 42 of the Code of Criminal Procedure of the Russian Federation provides that if a crime causes damage to a business reputation, a legal entity may be recognized as a victim. To do this, it is necessary to establish the fact of committing a socially dangerous act and the fact of causing harm to the business reputation of a legal entity. Crimes that can harm the business reputation of a legal entity, for example, are the illegal use of a trademark (Article 180 of the Criminal Code of the Russian Federation), illegal receipt and disclosure of information constituting commercial, tax or banking secrets (Article 183 of the Criminal Code of the Russian Federation). In order to protect business reputation, a legal entity has the right to make a claim for compensation for property damage, if there are grounds to believe that this damage was caused directly by a crime (Article 44 of the Code of Criminal Procedure of the Russian Federation). Article 44 of the Code of Criminal Procedure of the Russian Federation contains a provision that a civil plaintiff can bring a civil claim for property compensation for moral damage. Compensation for moral damage caused by derogation of the business reputation of a legal entity may take place within the framework of civil proceedings, which is confirmed by judicial practice. A similar conclusion cannot be drawn regarding criminal proceedings at this time.
When damage to a business reputation is caused, non-contractual obligations arise for its compensation, which should be regulated by Chapter 59 of the Civil Code of the Russian Federation. On the other hand, Art. 1064 of the Civil Code of the Russian Federation, which is of a general nature in regulating obligations for compensation for harm, says the following: “Harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, is subject to compensation in in full person who caused the harm." From the content of this wording, we can conclude that either the business reputation of a legal entity relates to property, or when harm is caused, no non-contractual relations arise. Since clause 7 of Article 152 of the Civil Code of the Russian Federation is in Chapter 8 of the Civil Code of the Russian Federation, which is called "Intangible benefits and their protection", the assumption that business reputation relates to property has no basis. In addition, the content of Article 42 of the Code of Criminal Procedure of the Russian Federation leads to this conclusion: "The victim is recognized ... as well as a legal entity in the event of a crime causing damage to his property and business reputation." Thus, we can conclude that at the time of the adoption of the first and second parts of the Civil Code of the Russian Federation, the business reputation of a legal entity did not represent special interest for business participants. And this, in turn, was the reason for almost complete absence regulatory regulation such an important attribute for a legal entity.
It is also worth paying attention to Art. 151 of the Civil Code of the Russian Federation, which states: “If a citizen has suffered moral harm (physical or moral suffering) ....” Does this not lead to the conclusion that physical or moral suffering is moral harm specifically for the citizen? In the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 N 10 “Some issues of application of legislation on compensation for moral harm,” moral harm is also correlated with physical or moral suffering. Accordingly, moral harm for a legal entity is expressed not in physical or moral suffering, but in possible deprivations in the future. Only in relation to a legal entity does moral harm have a different name - “reputational harm”.
IN currently Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 23, 1999 No. 46 “Review of the practice of resolving disputes related to the protection of business reputation by arbitration courts” remains in force. This document covers a small number of issues. In addition, 11 years have passed since its adoption, and given the constantly changing judicial practice, the letter requires updating. Making changes to it or adopting a new clarification judicial act Supreme Arbitration Court The Russian Federation will help to remove inconsistency in the issue of compensation for moral (reputational) damage to a legal entity caused by derogation of its business reputation.
Business reputation, being the “packaging” of a legal entity, is the object of increased attention. The paucity of legal regulation of the business reputation of a legal entity has forced entrepreneurs to look for the most suitable ways to protect it. As a result, over time, such a method of protection as the recovery of reputational damage began to acquire an independent character. Considering the fact that judicial practice reflects trends in social relations, and they are inherent constant development, we should expect further improvement in ways to protect the business reputation of a legal entity.