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ABSTRACT
The article covered the formation of norms on compensation for damage caused by state bodies, the participation of
state bodies in delict relations as a "state institution" as well as a "legal entity" and the importance of this. Also, the
specific aspects of delict responsibility of public institutions were explained. It was substantiated in which cases the
obligation of state bodies to compensate for damage should be paid from the state budget and in which cases at the
expense of their own extra-budgetary funds.
The opinions of Civilist scientists expressed by officials of state bodies on the issue of compensation for damages
caused by unlawful decisions, illegal actions (inaction) were analyzed. From foreign countries, for example, Germany,
England, Turkey, Ukraine, the legislation of the Russian Federation and a number of CIS countries has been studied.
In our national legislation, proposals and recommendations have been developed to improve the mechanism of
compensation for damage caused by state bodies. In the process of exercising the powers of power by state bodies
and their officials, it was scientifically substantiated that it is necessary to establish a special fund of the state in order
to ensure timely and full compensation for damage to a citizen and legal entity.
KEYWORDS
Obligations arising from damage, delict liability, damage, damage compensation, delinquens, victim.
INTRODUCTION
Research Article
PARTICIPATION OF STATE AUTHORITIES IN DELICT OBLIGATION
RELATIONS: PROBLEMS AND SOLUTIONS
Submission Date:
January 20, 2023,
Accepted Date:
January 25, 2023,
Published Date:
January 30, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue01-11
Nuriddin Kuldashev
Associate Professor, Doctor Of Legal Sciences, Academy Of The Ministry Of Internal Affairs Of The Republic Of
Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 01-2023
58
International Journal Of Law And Criminology
(ISSN
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VOLUME
03
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Pages:
57-65
SJIF
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(2022:
5.
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OCLC
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Publisher:
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Servi
In international civilism, there are unanimous opinions
that the damage caused by government bodies and
their officials is a special type of deli. However, in
national and foreign literature there are controversial
opinions on the issue of the financial source of
compensation for damage caused by state bodies and
their officials (funds of the state budget
–
the amount
of guilty officials).
In the scientific research of a number of scientists in
foreign countries, one or another aspect of the
research topic was studied. For example: масалан
Leyland Peter, Anthony Gordon (Oxford University) [1,
p. 458-480], Galiya I. Chanysheva, Oleksandr S. Yunin,
Nadiia V. Milovska, Roman V.Pozhodzhuk, Viktoriia V.
Mazur [2], Şölen Külahçı (Cyprus International
University) [3, p. 245-
261], Ahmet Bozdağ (Marmara
University) [4, p. 33-48]
In our scientific research, we came to the conclusion
that each state should ensure that these powers are
always carried out correctly and accurately in the
prescribed manner, while giving authority to its bodies.
It was scientifically substantiated that if the authority
that the state, state bodies and their officials give
cannot guarantee the exercise of its power free of
absolute error, it must undertake the obligation to
compensate for both the damage caused to the
individual and the legal entity as a result of this. On the
issue of the participation of state bodies in delict
commitment relations, we studied some problems [5-
10].
It should be noted that at the international level, a
generally
recognized
unified
procedure
for
compensation for damage caused to individuals and
legal entities by state bodies and their officials is not
established. In our study, the legislation of some
foreign countries on this issue was studied. The
scientific approaches of national and foreign scientists
to the topic were also analyzed. In the end, it became
possible to study and collect advanced achievements
of foreign countries, develop proposals and
recommendations for the introduction into our
national legislation of optimal mechanisms for
compensating for material and moral damage.
The study used general and special methods of
scientific knowledge. The method of analysis and
synthesis, as well as logic, was used to determine the
participation of state bodies as legal entities in delict
relations. And the dialectical method made it possible
to consider the state of scientific research on the topic.
The comparative-legal method was used in the analysis
of the norms of the law of the Republic of Uzbekistan
on delict relations with the participation of state
bodies. The method of analysis of statistical data has
determined the extent of damage caused by
government bodies and officials in our country and the
extent to which the victim is in a state of recovery. The
logical-semantic method was used to determine the
content and significance of delict responsibility of state
bodies as a legal entity. With the help of the normative-
dogmatic method, the content of regulatory legal acts
regulating delict relations with the participation of
state bodies was analyzed. Through the use of the legal
modeling method, it made it possible to develop
proposals to optimize National Civil Law in matters of
responsibility of state bodies and their officials. The
materials studied consist of the legislation of the
Republic of Uzbekistan and foreign countries,
including Turkey, Ukraine, the Russian Federation,
Belarus, Kazakhstan and several other CIS countries on
the subject of research, as well as scientific work of
national and foreign scientists.
Liability for damage caused by state bodies and their
officials is a special type of liability relationship arising
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from damage. Obligations arising from damage or
liability for damage are also referred to in scientific
circulation as the “delict” Institute. The delict Institute
is widely used in the legislation of most countries of the
world (in England, France, Germany, Turkey, Ukraine,
the Russian Federation and other CIS member states)
as universal rules that protect the violated rights and
interests of individuals.
In our national legislation, the formation of the
institution of compensation for damage caused by
state bodies and their officials coincides with the
period when the country was part of the former Union.
More precisely, in Article 56 of the Constitution of the
former Uzbek SSR, adopted on April 19, 1978, “the
grajdans of the Uzbek SSR have the right to recover
damages caused by the actions of state and public
organizations, as well as officials during the
performance of their service duties” [11, on p18.], that
the constitutional norm was defined.
Academic H.Rahmonkulov says that article 481 of the
Civil Code of the Uzbek SSR, adopted in 1963, was a rule
regarding the payment of damages to citizens as a
result of illegal actions committed by state
management bodies, public organizations and their
officials during the performance of their service duties,
but this norm has not been applied in practice due to
the fact that the procedure for compensation for
damage caused is not clearly established by lawe [12,
on p100].
Of course, in this place, it should also be noted that in
the Constitution of the former USSR, the Constitution
of the former Uzbek SSR and the Civil code,
compensation for property or material damage caused
by state bodies and officials is provided for in an official
manner, but compensation for moral damage is not
established by any legislation of that time.
Expressing his reaction to this problem, Hamrokulov
said, "... although compensation for moral damage was
not prescribed as a type of liability under the former
CCCP legislation, this legal entity appeared in the
European countries at the beginning of the XX centure.
A fyqapo living in Europe claimed that he suffered
moral damage in the territory of the former USSR, and
could not pay compensation for it. In the previous
USSR legal document, moral damages were not
covered” [13, on p 29]
Leyland Peter and Anthony Gordon note that "before
the adoption of the Crown Proceedings Act of 1947 in
England, there was a different position on the tort
liability of the Crown and administrative authorities,
but today their tort liability is exactly the same as that
of other private law subjects, that is, for wrongful acts.
they can also be sued for damages caused by their
actions" [1, on p 458].
Indeed, in the history of England, The “Crown
Proceedings Act” [14] Act, adopted in 1947, made a
fundamental change in the issue of delict responsibility
of the Kingdom, administrative bodies and officials.
Article 2 of this law is called the “delict responsibility of
the Kingdom”, which defines the responsibility of the
Kingdom and administrative bodies for damages
caused by unlawful acts (inaction), the procedure and
grounds for compensation for damages.
Turkish researcher Şölen Külahçı said that “one of the
integral principles of the legal state is that the state is
responsible for illegal actions and that it compensates
for the
damage caused to individuals” [3, 34
-B.],
emphasizes the rightful opinion.
At the same time, it should be noted that the Civil Code
of the Republic of Uzbekistan, adopted in 1997, is
fundamentally different from the Civil code of the
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former Uzbek SSR, which establishes somewhat
optimal mechanisms for compensation for damage
caused by state bodies and officials. For example,
Chapter 57 of the code entitled “obligations arising
from harm” is devoted to the delict Institute, which
provides: responsibility for damage caused by
government bodies, citizens ' self-government bodies,
as well as their officials, bodies carrying out the
investigation before the investigation, along with
issues such as inquiry, preliminary investigation,
prosecution authorities and responsibility for damage
caused by unlawful actions [15,on p 490-512].
But life is developing rapidly, and social relations are
expanding. These processes, in turn, lead to the need
to improve the institutions of effective protection of
the rights and interests of the individual in civil law, to
abandon the rules that do not justify themselves, and
to develop legal norms that directly follow the
requirements of Advanced International Standards.
Separately, it should be noted that the “concept of
improving the civil legislation of the Republic of
Uzbekistan” approved by the decree of the president
of the Republic of Uzbekistan dated April 5, 2019 No. F-
5464 [16] ushered in a new period of development of
the delict Institute in our national legislation. The
concept defined such urgent tasks as improving the
right of obligation, improving the institution of civil
legal responsibility, ensuring a fair procedure for
compensation
for
damage.
Today,
an
interdepartmental
commission
consisting
of
representatives of the industry, practitioners,
specialists, the scientific community and lawmakers is
operating to carry out these tasks.
In Articles 15, 990 of the Civil Code of the Republic of
Uzbekistan, state bodies are defined as subjects of
delict relations. In addition, in the status of a legal
entity (institution) of state bodies, it is also implied to
be a responsible subject in delictional relations (for
example, as the owner of surplus sources of risk, as an
employer, etc.)
At this point, it should be noted that in some states, for
example, in the civil legislation of the Republic of
Turkey, “the damage caused by state bodies and their
officials” is not defined as a separate type of delusion,
and this is treated as “the responsibility of the
employer”. For example, Se
ction 2 of the law of the
Republic of Turkey “on obligations”, adopted in 2011, is
normalized in Article 66 of “liability relations arising
from holes”“[17].
It should also be noted that in the civil legislation of
most states within the CIS, “damage cause
d by state
bodies and their officials” is noted as a separate type
of deli. When analyzing the laws of these states, it was
found that there are some uncertainties and problems
related to the subject of the study. In particular, these
problems:
- failure to establish clear mechanisms for
compensation for damage caused by these delicacies;
- lack of clarification of financial sources of damage
compensation in the legislation;
- compensation for damage is due to the presence of
inaccuracies in the question of which cases should be
imposed on the state div and in which situations on
officials.
In addition, it is quite obvious that in civil law
documents, the obligation of state bodies and officials
to compensate for the damage caused by unlawful
decisions, illegal actions (inaction) is imposed on a
particular state div, and a special fund is not
established in order to compensate for such damages.
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For example, the Civil code of the Russian Federation
(16-art.) [18]; Civil code of the Republic of Kazakhstan
(267, 922-art.) [19]; Civil code of the Republic of Belarus
(15-art.) [20]; Civil code of the Republic of Azerbaijan
(1100art.) [21] and the Civil Code of the Republic of
Uzbekistan (15-art.) [15] defined in the relevant articles.
In our opinion, it is desirable that special financial
resources are formed to compensate for the losses
caused by unlawful decisions and unlawful actions
(inaction) of state bodies and officials. This, in turn,
increases the chances of compensation for the damage
caused to the victims in a timely and complete hajm. In
addition, there is no possibility that the state div does
not always have enough funds to compensate for the
damage.
It is also important to determine the damage caused by
the activities of the state div as a “legal entity”
(institution). In this matter I.S. Kokorin highlights: "the
determination of the responsibility of the Internal
Affairs bodies depends on what kind of activity the
damage was caused by. For example, if the damage
was caused by the implementation of economic
activities on general grounds according to Article 1064
of the RF GK, on the basis of Article 1070 of the RF GK
if it was caused in the process of carrying out criminal-
procedural activities” [22, p. 53] responsibility says
origin. V.Vlasov, on th
e other hand, states that “in the
event of a fact of damage caused by the action of a
specific law enforcement institution or official, it is
correct to impose legal responsibility on the state, and
in civil legal relations they themselves will be liable as a
legal entity when participating in the status of a subject
of Civil Law” [23, p. 24].
When we conclude about it, I.S.Kokorin noted that it is
in accordance with the general principles of civil law to
impose on the state the obligation to compensate not
only the damage caused in the process of carrying out
criminal-procedural activities of the internal affairs
bodies, but in general all the damage caused by them.
While we are researching the system of legal regulation
of delict relations with the participation of state
bodies, Professor O.Okhyulov's " civil legal regulation
today has mainly a two
–
tier (Civil Code-special laws)
and sometimes a three-
tier system” [24, 14 p.], we
realize that their thoughts are true. Because, it can be
seen that the participation of state bodies in the
relationship of the delicacy as a delicacy is legally
regulated by the Civil Code
–
separate laws and sub-
legislative acts.
Scientists who have studied the civil legal liability of
police officers under German law say that “the issue of
civil legal liability of federal police officers is regulated
by
the
Federal
Policy
Act
(Section
3
called“compensation for damages”) and the re
levant
provisions of the German Civil Code (Civil Code, 2002)”
[2, 4-b.]. That is, it can be said that in German law these
relations are mainly regulated by two tiers. In our
country, however, these relations of delicacy are
regulated by three-tier law documents, which include:
Civil Code, special laws [25] and decisions of the
Cabinet of Ministers (for example, 04/24/2017.
Resolution No. 235) [26]
Of course, the fact that these relations are regulated
by various norms of law, on the one hand, complicates
the process of resolving disputes correctly, and on the
other hand, makes it difficult for the same legal
regulation of these relations. For example, in Part 3 of
Article 15 of the Civil Code of the Republic of
Uzbekistan:”the compensation of damage by the
decision of the court can be entrusted to the officials
of these bodies if the damage is caused by the fault of
officials of state bodies, citizens ' self-government
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bodies“, Article 46 of the law”on internal affairs
bodies: ” The role of harm caused to i
ndividuals and
legal entities due to illegal actions or inaction of an
employee of the internal affairs div is compensated
by the internal affairs bodies at the expense of extra-
budgetary savings, the amount of which is
subsequently levied on the guilty person, " the rule is
established.
The inconsistency in the above norms is that the code
establishes that in the event of the official's fault, the
obligation to compensate for the damage is assigned
to him, and the law establishes that the official is
compensated by the internal affairs div regardless of
whether there is a fault or not. In addition, according
to the code, only by decision of the court is it possible
to impose an obligation on an official to compensate
for damage, while the law does not provide for this
rule. Also, the law does not provide an explanation in
what order the question of whether there is an
employee's fault in causing damage is resolved in
practice, which in an unjustified way can cause
situations of loading delictional responsibility or
unjustifiably requiring a regress.
According to the rule established in Part 2 of Article 46
of the law of the Republic of Uzbekistan “On internal
affairs bodies”, the harm caused by the illegal actions
or inaction of the employee can be compensated at the
expense of extra-budgetary savings of the internal
affairs bodies, and this amount can then be collected
from the guilty person.
Part 3 of Article 1001 of the Civil Code of the Republic
of Uzbekistan “...it is established that the state that
paid the damage caused by officials has the right to
regress in relation to these persons in cases where the
fault of such persons is determined by the judgment of
the court, which entered into legal force. That is, an
employee can make a regress request to a civil servant
only when the fault of the employee is determined by
the court. Accordingly, it is advisable to include in the
content of this norm the words “this amount will be
charged from the person who was later found guilty by
the court.”
Based on the foregoing, it can be said that it is
necessary to unify the norms of public and civil law
regulating delictional relations with the participation of
state bodies. In this case, it will be necessary to exclude
from the law the norms that clearly delimit the norms
of public and civil law, which are interpreted differently
or require clarification on the issue of their application
in practice.
Another of the problems associated with the subject of
the study is the growing conflict of damage caused by
state bodies and their officials to citizens and legal
entities, as well as the unsatisfactory state of timely
and full compensation of these damages to victims. For
example, for 12 months of 2019, there was a situation
of damage to citizens and legal entities by 537 officials,
and for 6 months of 2020 by 459 officials. Also, during
the 6 months of 2020, 172 billion were delivered by the
above subjects. 260 million. 114 billion of material
damage in sum. 267 million. the sum is levied. That is,
44% of the total damage caused was not provided for
the collection of victims for various reasons [27]. This
means that our work in this area is still far from perfect
and is not without flaws.
The obligation of the state to compensate for the harm
caused to a citizen or legal entity as a result of the
activities of state bodies and officials in a legal state in
connection with the powers of power is an important
guarantee of protecting the rights and interests of
persons. Of course, although it is considered important
in the civil legislation of each state to establish in the
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appropriate order the optimal mechanisms for timely
and full compensation of damage to citizens, ensuring
the implementation of this in practice is a separate
issue.
From the above, we can conclude that each country
should have a system of full guarantee of the rights and
interests of individuals, their personal and property
rights. The organization of a special budget fund in
order to timely and fully compensate for the damage
caused by state bodies and officials in the activities of
the implementation of the powers of power also
serves as a full guarantee of human rights.
In Civil Law, relations related to damage caused by
state bodies and their officials are a complex civil legal
relationship regulated by the norms of public and
private law. It is involved in relations in the status of a
state div and a legal entity (institution).
As a result of the study, the following conclusions were
drawn:
- it is necessary to understand the relationship between
the participation of the state div in the relationship
of delict, in connection with the damage caused to
citizens and legal entities in the process of carrying out
the functions and functions imposed by law by them.
The obligation to compensate for such damage should
also be paid to the budget funds of the state;
- the use of property attached to state bodies on the
basis of the right to operational management can harm
citizens or legal entities. Such damage is not associated
with the activities of the implementation of their
authority. Therefore, the obligation to compensate for
such damage must be compensated at the expense of
their extra-budgetary funds;
- it is necessary to unify the norms of law governing
delict relations with the participation of state bodies. It
should be clearly defined to be the norm that clearly
determines the procedure for compensation by the
state for damages caused by unlawful actions of state
bodies, at what expense and in what order the damage
will be compensated by the state.
In conclusion, the organization of a special state fund
for compensation for damage caused by state bodies
and officials serves as a guarantee of timely and full
compensation for damage caused.
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