home Exchange rates What does article 152 say? Civil Code of the Russian Federation (CC RF)

What does article 152 say? Civil Code of the Russian Federation (CC RF)

Civil Code The Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in Russian Federation. The norms of civil law contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992 and initially went in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. In connection with the huge amount of material that required inclusion in the Civil Code, it was decided to accept it in parts.

The first part of the Civil Code of the Russian Federation, which entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (section I "General Provisions", section II "Property and other property rights", section III"The General Part of the Law of Obligations"). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (on the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law ( various types property and property rights), transactions, representation, statute of limitations, ownership, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition to the first part, was put into effect on March 1, 1996. It is completely devoted to section IV of the code " Separate types obligations." Based on the general principles of the new civil law of Russia, enshrined in the Constitution of 1993 and part one of the Civil Code, part two establishes a detailed system of norms on individual obligations and contracts, obligations from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of a new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes Section V "Inheritance Law" and Section VI "International Private Law". In comparison with the legislation in force before the entry into force on March 01, 2002 of part three of the Civil Code of the Russian Federation, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the circle of objects that can be transferred in the order of hereditary succession; introduced detailed rules relating to the protection of the inheritance and its management. Section VI of the Civil Code on regulation civil law relations, complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains rules on qualifications legal concepts in determining the applicable law, on the application of the law of the country with plurality legal systems, about reciprocity, return sending, establishing the content of the norms of foreign law.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII "Rights to the results of intellectual activity and means of individualization." Its structure includes general provisions- norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive practice of application, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, the assignment claims and transfer of debt, collateral, etc., which necessitated the introduction of a number of systemic changes into the Civil Code of the Russian Federation. As noted by one of the initiators of such changes, the President of the Russian Federation D.A. Medvedev, “The current system needs not to be reorganized, fundamentally changed, ... but to be improved, unlocking its potential and developing implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized nations in the state. market relations, an effective mechanism for the protection of all forms of ownership, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary ... "<1>.

On July 18, 2008, Decree of the President of the Russian Federation N 1108 "On the improvement of the Civil Code of the Russian Federation" was issued, which set the task of developing a concept for the development of the civil legislation of the Russian Federation. On October 7, 2009, the Concept was approved by the decision of the Council for the Codification and Improvement of Russian Legislation and signed by the President of the Russian Federation.

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<1>See: Medvedev D.A. The Civil Code of Russia - its role in development market economy and the creation of a rule of law // Bulletin of civil law. 2007. N 2. V.7.

(as amended by Federal Law No. 142-FZ of July 2, 2013)

1. A citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, if the person who disseminated such information does not prove that it is true. The refutation must be made in the same way that information about the citizen was disseminated, or in another similar way.

At the request of interested persons, it is allowed to protect honor, dignity and business reputation citizen after his death.

2. Information discrediting the honor, dignity or business reputation of a citizen and disseminated in the media must be refuted in the same media. A citizen, in respect of whom the said information has been disseminated in the media, has the right to demand, along with a refutation, also the publication of his answer in the same media.

3. If information discrediting the honor, dignity or business reputation of a citizen is contained in a document emanating from an organization, such document is subject to replacement or revocation.

4. In cases where information discrediting the honor, dignity or business reputation of a citizen has become widely known and in connection with this the refutation cannot be brought to public attention, the citizen has the right to demand the removal of the relevant information, as well as the suppression or prohibition of the further dissemination of the specified information by withdrawing and destruction, without any compensation, of copies of material carriers made for the purpose of putting into civil circulation containing the specified information, if without the destruction of such copies of material carriers, the removal of the relevant information is impossible.

5. If information that discredits the honor, dignity or business reputation of a citizen becomes available on the Internet after their dissemination, the citizen has the right to demand the removal of the relevant information, as well as a refutation of the specified information in a way that ensures that the refutation is brought to the attention of Internet users.

6. The procedure for refuting information discrediting the honor, dignity or business reputation of a citizen, in other cases, except for those specified in paragraphs 2-5 of this article, is established by the court.

7. The application to the violator of measures of responsibility for non-execution of a court decision does not relieve him of the obligation to perform the action provided for by the court decision.

8. If it is impossible to identify the person who has disseminated information discrediting the honor, dignity or business reputation of a citizen, the citizen in respect of whom such information has been disseminated has the right to apply to the court for recognition of the disseminated information as untrue.

9. A citizen in respect of whom information is disseminated that discredits his honor, dignity or business reputation, along with the refutation of such information or the publication of his answer, has the right to demand compensation for losses and compensation for moral damage caused by the dissemination of such information.

10. The rules of paragraphs 1-9 of this article, with the exception of the provisions on compensation for moral damage, may also be applied by the court to cases of dissemination of any information about a citizen that does not correspond to reality, if such a citizen proves that the specified information does not correspond to reality. The limitation period for claims made in connection with the dissemination of the said information in the mass media is one year from the date of publication of such information in the relevant mass media.

11. The rules of this article on the protection of the business reputation of a citizen, with the exception of the provisions on compensation for moral damage, respectively apply to the protection of the business reputation of a legal entity.

Article comments

The right to protection of honor and good name is guaranteed by Art. 43 of the Constitution of the Russian Federation.

Comment. Art. determines the conditions and procedure for protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities. Honor is a public assessment of the social and spiritual qualities of a person; dignity - an internal assessment by a person of his qualities; business reputation - the prevailing public opinion about the professional merits of an individual and legal entity. Since an attack on the dignity of a person cannot be imagined without an attack on her honor, the concepts of honor and dignity are usually used together. On the contrary, infringement on business reputation can be independent.

In accordance with par. 1 paragraph 2 of the Resolution of the Plenum of the Supreme Court of August 18, 1992 N 11 "On some issues that have arisen in the consideration by the courts of cases on the protection of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" under the dissemination of information discrediting the honor and dignity of citizens or the business reputation of citizens and legal entities, should be understood as the publication of such information in the press, broadcast on radio and television and video programs, demonstration in newsreel programs and other media, presentation in official characteristics, public speaking, statements addressed to officials, or a message in another, including oral, form to several or at least one person. The communication of such information to the person to whom they concern cannot be recognized as their dissemination.

The requirement of a person to protect honor, dignity or business reputation is subject to protection if the disseminated information is, firstly, discrediting, and secondly, untrue.

Discrediting is such information that detracts from the honor and dignity of a citizen or the business reputation of a citizen or legal entity from the point of view of ethical, moral principles, business customs, etc. In accordance with par. 2 clause 2 of the Resolution of the Plenum of the Supreme Court N 11, discrediting information is classified as information containing allegations of a violation by a citizen or legal entity of the current legislation or moral principles (of committing a dishonest act, improper behavior in work collective, everyday life and other information that discredits production, economic and social activities, business reputation, etc.).

In the order specified by the comment. Art., claims to refute the information contained in court decisions and sentences, decisions of the preliminary investigation bodies and other official documents, for which an appeal is provided for by another procedure established by laws (paragraph 3 of the Resolution of the Plenum of the Supreme Court No. 11) cannot be considered.

Information discrediting a person must relate to the facts that have taken place (the behavior of the person, his specific actions); value judgments (such as "a vile person", "an incompetent journalist", "an unreliable organization") cannot serve as a basis for satisfying a claim, although it is often quite difficult to determine where the value judgment ends and the statement of fact begins.

The disseminated information must be untrue. Otherwise, no matter how discrediting this information may be, the person will be deprived of legal protection. At the same time, the plaintiff is obliged to prove the very fact of the dissemination of information (clause 7 of the Resolution of the Plenum of the Supreme Court No. 11), as well as the fact that the disseminated information is discrediting. The obligation to prove the conformity of the disseminated information with reality lies with the defendant.

Sometimes widespread information can be true, but at the same time be discrediting. Thus, the dissemination of information that a person was undergoing treatment for a venereal disease may negatively affect the assessment of this person in the eyes of society. However, if this person goes to court with a claim for the protection of honor and dignity, the court may refuse to satisfy the plaintiff's claims due to the fact that the fact of treatment actually took place. In this regard, some scientists propose to change the relevant provision of the Civil Code in such a way that a person is provided with legal protection in the event of dissemination of information, although it is true, but of a discrediting nature, except when the dissemination of such information is necessary to protect the rights and interests other persons. Thus, the guardianship and guardianship authorities and the prosecutor will be forced to voice in court the information they know about the crimes or immoral acts committed by the person, if this person claims to become an adoptive parent. In such a situation, the dissemination of such information is necessary to protect the rights of the adopted child.

At the request of interested parties, the protection of the honor and dignity of a citizen is allowed even after his death (see comments to Article 150 of the Civil Code). Interested parties include the surviving spouse and close relatives (parents, children, brothers, sisters, grandfathers, grandmothers, grandchildren), since there are such concepts as family honor, family honor, clan honor (for more see: Maleina M. N Personal non-property rights of citizens, Moscow, 2000, p. 141). Some organizations may also be recognized as interested parties (for example, the Union of Composers of the Russian Federation, the Union of Writers of the Russian Federation, the Union of Theater Workers of Russia). The prosecutor can also file such claims (Article 45 of the Code of Civil Procedure).

The main means of protection provided by comment. Art., is a refutation of information discrediting a citizen or legal entity.

If information discrediting the honor, dignity or business reputation of a citizen or legal entity is disseminated in the media, they must be refuted in the same media. Defendants in claims for refutation of information discrediting honor and dignity or business reputation are the persons who disseminated this information. If the claim contains a requirement to refute the information disseminated in the mass media, the author and the editorial office of the relevant mass media are involved as defendants. The procedure for publishing a refutation and the grounds for refusing to publish a refutation are established by Art. 43-45 of the Mass Media Law.

According to claims for the refutation of discrediting information set forth in the official characteristics, the defendants are the persons who signed them, and the enterprise, institution, organization on behalf of which the characteristic was issued (paragraph 6 of the Resolution of the Plenum of the Supreme Court N 11).

At the same time, the law does not oblige the plaintiff to first file a claim with the defendant, including in the case when the claim is brought against the mass media that disseminated defamatory information.

If it is impossible to identify the person who disseminated information that discredits the honor, dignity or business reputation of a citizen or legal entity, the victim has the right to apply to the court for recognition of the disseminated information as untrue. In this case we are talking about establishing the facts legal significance, therefore, such issues should be resolved in the order of special proceedings in accordance with Ch. 28 Code of Civil Procedure.

A citizen or an organization in respect of which information has been published by the media that infringes on their rights or interests protected by law, has the right to publish their response in the same media. The right to reply (comment, remark) is regulated in more detail by the Mass Media Law (Article 46 of the Law).

Point 4 comment. Art. essentially reproduces the norm contained in the Law on Enforcement Proceedings. In case of non-execution without valid reasons of the executive document, obliging the debtor to perform certain actions or refrain from doing them, within the period established by the bailiff, he issues a decision to impose a fine on the debtor in the amount of up to 200 minimum wages and assigns him a new deadline for execution ( article 85 of the Law). In case of subsequent violations by the debtor without good reason of the new deadlines for the execution of the executive document, the amount of the fine doubles each time. The payment of the fine does not release the violator from the obligation to perform the action envisaged by the court decision.

Encroachment on the honor and dignity of a citizen and the business reputation of a citizen or a legal entity may lead to adverse consequences in their property area (see, in particular, Information Letter of the Presidium of the Supreme Arbitration Court dated September 23, 1999 N 46 "Overview of the practice of resolving disputes by arbitration courts related to with the protection of business reputation "(Vestnik VAS. 1999. N 11). In this case, they have the right to demand compensation from the defendant for damages. A citizen in respect of whom information discrediting his honor, dignity or business reputation is disseminated, has the right, along with a refutation of such information and to demand compensation for damages (see Article 151 of the Civil Code and comments to it) caused by their distribution. compensation, regardless of the fault of the offender.

In view of the fact that legal entities are a fiction, and therefore cannot experience physical or moral suffering, they do not have the right to compensation for moral damage.

The statute of limitations does not apply to claims for the protection of honor, dignity and business reputation (Article 208 of the Civil Code).

The honor and dignity of a citizen is also protected by criminal law. In the event that the actions of a person who has disseminated information discrediting another person contain signs of a crime under Art. 129 of the Criminal Code (slander) or Art. 130 of the Criminal Code (insult), the victim has the right to apply to the court to bring the perpetrator to criminal liability, as well as to file a claim for the protection of honor and dignity or business reputation in civil proceedings.

The refusal to initiate a criminal case, the termination of the initiated criminal case, as well as the issuance of a sentence do not exclude the possibility of filing a claim for the protection of honor and dignity or business reputation in civil proceedings (paragraph 8 of the Resolution of the Plenum of the Supreme Court No. 11).

At the request of interested persons, the protection of the honor, dignity and business reputation of a citizen is allowed even after his death.

3. If information discrediting the honor, dignity or business reputation of a citizen is contained in a document emanating from an organization, such document is subject to replacement or revocation.

5. If information discrediting the honor, dignity or business reputation of a citizen becomes available on the Internet after its dissemination, the citizen has the right to demand the deletion of the relevant information, as well as a refutation of the specified information in a way that ensures that the refutation is brought to the attention of Internet users.

7. The application to the violator of measures of responsibility for non-execution of a court decision does not relieve him of the obligation to perform the action provided for by the court decision.

10. The rules of paragraphs 1-9 of this article, with the exception of the provisions on compensation for moral damage, may also be applied by the court to cases of dissemination of any information about a citizen that does not correspond to reality, if such a citizen proves that the indicated information does not correspond to reality. The limitation period for claims made in connection with the dissemination of the said information in the mass media is one year from the date of publication of such information in the relevant mass media.

Commentary on Art. 152 of the Civil Code of the Russian Federation

1. There is no legal definition of honor, dignity and business reputation. Usually in the doctrine honor is understood as social assessment qualities and abilities of a particular person, dignity - self-esteem of one's qualities and abilities, reputation (Latin reputatio - reflection, reflection) - an opinion formed about a person based on an assessment of his socially significant qualities, including professional ones (in the latter case, it is customary to talk about business reputation). Moreover, reputation as a public opinion that has developed about a person is personified, among other things, through a name (name) (any subject has the right to demand from everyone and everyone that only those actions and (or) events in which he participated) be associated with his name (name) and appearance. Therefore, the protection of reputation is often called the protection of a good name and is also associated with the protection of the image of a citizen (see comments on Article 152.1 of the Civil Code).

Although all of these benefits are recognized as independent, in content they are inextricably linked with each other, determining the status of the individual, her self-esteem, position in society and the basis of objective perception by others. In this sense, the protection of reputation coincides with the protection of honor and dignity in the form in which it is provided by law (for more details: Sergeev A.P. The right to protect reputation. L., 1989. P. 4), and together they serve as a necessary limiting the abuse of freedom of speech and the media (paragraph 4 of the preamble, paragraph 1 of the Resolution of the Supreme Court No. 3). Therefore, the protection of honor and dignity simultaneously takes place with the protection of the name and inviolability of personal life (conditionally, this is called the protection of reputation in the broad sense).

2. According to paragraph 1 of Art. 152 The basis for the protection of honor, dignity, business reputation is the simultaneous presence of the following conditions: untrue information about facts that are discrediting, disseminated by a third party.

In theory, information about facts that do not correspond to reality is usually understood as factual judgments about the qualities and abilities of a person, his behavior, lifestyle, events that have occurred in life, to which the criteria of truth and falsity are applicable (i.e. there is the possibility of verification), for example, allegations that a person has committed an offense, has sadistic or masochistic tendencies, etc. Judicial practice has adopted a position according to which information contained in court decisions and sentences, decisions of preliminary investigation bodies and other procedural or other official documents cannot be considered as untrue, for appeal and contestation of which another statutory provision is provided. court order(for example, the information contained in the dismissal order cannot be refuted in accordance with Article 152 of the Civil Code, since such an order can only be challenged in the manner prescribed by the Labor Code) (paragraph 4, clause 7 of Resolution of the Supreme Court No. 3).

It is necessary to distinguish evaluative judgments from factual judgments, to which the criteria of truth (falsity) are not applicable, since such judgments express only the private opinion of a third person, his attitude to the subject of thought as a whole or to individual features (for example, the judgment that a person has a friendly (militant) ) view, etc.). Consequently, the statement of a value judgment cannot violate the honor, dignity and business reputation. Another thing is if such a value judgment is expressed in an indecent form (through profanity, etc.), if there are signs of a crime, honor and dignity can be protected by bringing to criminal liability for insult (Article 130 of the Criminal Code).

The doctrine distinguishes so-called value judgments with factual reference, which contain statements in the form of an assessment (for example, an indication that a person is mean, unscrupulous, etc.). It is impossible to unequivocally answer whether the dissemination of such information should be considered a derogation of honor, dignity and business reputation. From the point of view of content, it is rather difficult to distinguish between mere value judgments and value judgments with factual reference, since the connection with facts is somehow inherent in any assessment of the qualities of the subject. If the information is not neutral in nature from the point of view of ethics and at the same time can be checked for compliance with reality, then only taking into account the specific circumstances in each case, as well as taking into account the essence of the information, and not individual details protection of honor, dignity and goodwill seem to be admissible.

Discrediting information is recognized as information containing allegations of a violation by an individual (legal) person of the current legislation, the commission of a dishonest act, incorrect, unethical behavior in personal, public or political life, bad faith in the implementation of economic and entrepreneurial activities, violation business ethics or business customs that detract from the honor and dignity of a citizen or the business reputation of a citizen or a legal entity (paragraph 5, clause 7 of Resolution of the Supreme Court No. 3). The concept of "damaging information" is evaluative in nature, so the above list can hardly be considered exhaustive. Any information containing negative information of a legal or moral nature should be considered discrediting (see also: Sergeev A.P. Decree. Op. P. 24 - 25). However, the problem of qualifying information as discrediting also does not have one-stop solution. It is necessary to take into account all the specific circumstances of the case, including those related to the personality of both the injured person and the person who disseminated the information.

Art. 152 do not apply to cases of so-called defamation, i.e. dissemination of information corresponding to reality that discredits a person (for example, about the presence of a criminal record, venereal disease, etc.) or even not discrediting, but negatively characterizing, or simply unpleasant or undesirable for a particular person (in particular, disclosure of family secrets, information about physical shortcomings, etc.). In such situations, the legitimate interests of the victim are ensured by the rules on the protection of privacy, etc. (This approach has also been confirmed in judicial practice- see par. 1, 2, paragraph 8 of the Resolution of the Supreme Court No. 3).

The dissemination of untrue and defamatory information is usually understood as the publication of such information in the press, broadcast on radio and television, demonstration in newsreel programs and other media, on the Internet, as well as using other means of telecommunications, presentation in service characteristics, public speeches, statements addressed to officials, or a message in one form or another, including oral, to at least one person. The communication of such information to the person to whom they concern cannot be recognized as their distribution if the person who reported this information has taken sufficient confidentiality measures (paragraph 2, clause 7 of the Decree of the Supreme Court No. 3).

The issue of dissemination of information is not always obvious. In particular, sometimes citizens apply to state (municipal) bodies with statements containing information (for example, about a crime committed or being prepared) that does not correspond to reality. In itself, such an appeal cannot serve as a basis for bringing the applicant to civil liability under Art. 152, unless it is established that the appeal to the authorities had no grounds and was dictated not by the intention to fulfill a civic duty, but solely by the desire to harm another person (clause 10 of the Decree of the Supreme Court No. 3).

Finally, the distribution of the above information must be carried out by a third party. In particular, this means that the dissemination of any information by a person about himself cannot be considered a circumstance that violates the conditions for the objectivity of forming an opinion about the corresponding person, which, last but not least, depends on his own behavior. From the meaning of Art. 152 it follows that this rule has exceptions. So, if a person disseminates defamatory information about himself as a result of physical and (or) mental violence exerted on him, then there is a decrease in honor, dignity and business reputation as a result of misconduct another person who should act as an obligated party on the demand for the protection of honor, dignity and business reputation.

3. As follows from paragraphs 1, 7 of the commented article, the subjects of the right to protection are citizens and legal entities who believe that defamatory information that does not correspond to reality has been circulated about them. Protection of the interests of minors or incapacitated persons is carried out by their legal representatives.

At the request of interested persons (for example, relatives, heirs, etc.), the protection of the honor, dignity and business reputation of a citizen is allowed even after his death. Such a rule is justified, since the preservation of a good memory of a person is socially significant. In addition, the protection of the interests of the dead is inextricably linked with the protection of the interests of the living, in particular relatives and friends. Within the meaning of the law, the protection of the business reputation of a legal entity that has ceased to exist is allowed at the request of its successors.

In theory, it is rightly stated that collectives not endowed with the rights of a legal entity can act as subjects of the corresponding right to protection in the presence of organizational unity (see for more details: Sergeev A.P. Decree. Op. P. 11 - 12). For example, a family can be called a kind of collective, any capable member of which can act in defense not only on his own behalf, but also on behalf of the whole family as a whole (protection of family honor and reputation).

4. Persons who act as a source of information (traditionally they are called authors, although the terminology is not entirely successful) and persons who have disseminated relevant information are recognized as persons liable for requirements for the protection of honor, dignity and business reputation.

For example, depending on the circumstances named persons are: a) the author and the editorial office of the relevant mass media, if the disputed information was disseminated in the mass media, indicating the person who is its source; b) the editorial staff of the mass media, i.е. organization, individual or group individuals those engaged in the production and release of a specific mass media (clause 9, article 2 of the Mass Media Law), as well as the founder if the editorial office does not have the status of a legal entity, if the name of the author is not indicated when publishing or otherwise distributing untrue defamatory information (paragraph 2, 3, paragraph 5 of the Decree of the Supreme Court No. 3); c) a legal entity (Article 1068 of the Civil Code), whose employee disseminated discrediting and untrue information in connection with the implementation of professional activities on behalf of the organization in which he works (for example, in a job description) (paragraph 4, clause 5 of the Resolution BC No. 3).

5. When making a claim for the protection of honor, dignity and business reputation, the burden of proof is distributed as follows. The victim must prove the fact of dissemination of information by the person to whom the demand is made, and their discrediting nature. The defendant, on the contrary, is obliged to substantiate the validity of the disseminated information (paragraph 1, clause 9 of the Decree of the Supreme Court No. 3).

The law may establish cases of exemption from liability for the dissemination of inaccurate defamatory information. Thus, liability does not arise if this information is present in mandatory messages; received from news agencies; contained in response to a request for information or in the materials of the press services of state (municipal) bodies, organizations, institutions, enterprises, bodies of public associations; are verbatim reproduction of fragments of speeches of deputies, delegates of congresses, conferences, plenums of public associations, as well as official speeches officials state (municipal) bodies, organizations and public associations; contained in author's works that are broadcast without prior recording, or in texts that are not subject to editing; are a verbatim reproduction of messages and materials or their fragments distributed by another mass media, which can be identified and held liable for this violation (Article 57 of the Mass Media Law). This list is closed and is not subject to broad interpretation. Therefore, for example, the reference to the fact that the publication is an advertising material cannot serve as a basis for exemption from liability (paragraph 1, clause 12 of the Decree of the Supreme Court No. 3).

According to paragraph 6 of the commented article, the protection of honor, dignity and business reputation is provided by law even if it is impossible to identify the person who disseminated false information (for example, when sending anonymous letters to citizens and organizations or disseminating information on the Internet by a person who cannot to identify). The victim has the right to apply to the court with an application for the recognition of such information as untrue in the order of special proceedings (paragraph 3, clause 2 of Resolution of the Supreme Court No. 3).

6. A special way to protect honor, dignity and business reputation is a refutation (clauses 2, 3 of the commented article). However, by its nature, it is a kind of such a general method of protection as the suppression of unlawful acts and the restoration of the situation that existed before the violation, and can be implemented within the framework of: information to the media of his response to the publication) or b) jurisdictional form of protection (in particular, by filing a lawsuit in court). When satisfying the claim, the court in the operative part of the decision is obliged to indicate the method and procedure for refuting discrediting information that does not correspond to reality and, if necessary, state the text of such a refutation, indicating which information is untrue and discrediting, when and how it was disseminated, and also determine the period , during which it must follow (paragraph 1, 2, paragraph 17 of the Decree of the Supreme Court No. 3).

If unreliable defamatory information was circulated in the media, they must be refuted in the same media, or when the release of the media in which the refuted information was circulated is terminated for the duration of the dispute, they must be refuted at the expense of the defendant in another mass media information (clause 13 of the Decree of the Supreme Court No. 3). If the specified information is contained in a document emanating from the organization, such a document is subject to replacement or revocation.

The Civil Code does not provide for an apology as a way of judicial protection of honor, dignity and business reputation, therefore the court does not have the right to oblige the defendants in this category of cases to apologize to the plaintiffs in one form or another. However, the court has the right to approve a settlement agreement, according to which the parties, by mutual agreement, provided for the defendant to apologize in connection with the dissemination of untrue discrediting information about the plaintiff, since this does not violate the rights and legitimate interests of other persons and does not contradict the law (paragraph 2 , 3 p. 18 of the Resolution of the Supreme Court No. 3).

Failure to comply with the court decision entails the imposition of a fine on the violator, which is collected in the income of the Russian Federation. At the same time, payment of the fine does not relieve the violator from the obligation to perform the refutation action provided for by the court decision (clause 4 of the commented article).

7. According to paragraph 5 of Art. 152 refutation of inaccurate discrediting information can be used along with other methods of protection, in particular, compensation for damages (see commentary to Article 15 of the Civil Code) and compensation for moral damage (see commentary to Article 151 of the Civil Code), which can be recovered only in in favor of the plaintiff, but not the persons indicated by him (paragraph 1, clause 18 of the Decree of the Supreme Court No. 3).

Currently, judicial practice has taken a rather controversial position on the possibility of compensating for moral damage to a legal entity in the event of diminishing its business reputation. It is believed that since the rule on the possibility of demanding, along with the refutation of unreliable discrediting information, losses and moral damage in terms of the business reputation of a citizen, respectively, applies to the protection of the business reputation of legal entities (clause 7 of the commented article), to the extent that this rule is in full also applies in cases where such information is disseminated in relation to a legal entity (paragraph 1, clause 15 of Resolution of the Supreme Court No. 3). This position is not consistent with the legal definition of moral harm as physical and moral suffering (paragraph 1 of article 151 of the Civil Code), which can only be experienced by an individual, but not a legal entity, since the latter is an artificially created (fictitious) subject of law.

Be that as it may, if we allow the possibility of compensating a legal entity for other (apart from property) damage, it is necessary to talk about some other type of non-property damage than moral damage. In particular, in accordance with par. 5 p. 2 of the Definition of the Constitutional Court of December 4, 2003 N 508-O "On the refusal to accept for consideration the complaint of citizen Shlafman V.A. about the violation of his constitutional rights by paragraph 7 of Article 152 of the Civil Code of the Russian Federation" (Bulletin of the COP. 2004. N 3) the applicability of a particular method of protecting violated civil rights to protecting 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 damage caused by detracting from business reputation, or intangible damage that has its own content (other than the content of moral harm caused to a citizen), which follows from the essence of the violated intangible right and the nature of the consequences of this violation.

The position of the Constitutional Court is quite reasonable and complies with the provisions of paragraph 2 of Art. 150 of the Civil Code, however, amendments to the current legislation are required for an unambiguous solution to this problem.

Judicial practice under Article 152 of the Civil Code of the Russian Federation

Judgment of the ECtHR dated 20.06.2017

15. In her statement of claim, the applicant complained that the unlawful publication of her son's photograph in a pamphlet calling for the adoption of children had tarnished the honor, dignity and reputation of herself and her son. In particular, the photo was published without her knowledge and consent. The booklet was sent to various organizations in the city of Usolye and the Usolsky district of the Perm Territory (to libraries, hospitals, police stations) and caused a negative attitude towards her and her son from colleagues, neighbors and relatives. The surrounding people decided that she had abandoned her son. The boy became the object of ridicule in kindergarten. In addition, the publication of the photo affected her honor and dignity and her reputation as a school teacher. With reference to articles and the Civil Code of the Russian Federation (see section "Relevant legislation of the Russian Federation and law enforcement practice" of this judgment), she asked the court to award her compensation for non-pecuniary damage and oblige the publishing house to apologize for publishing the photo.

Judgment of the ECtHR dated 25.04.2017

9. On 8 December 2004 the District Court examined and partially granted the claim, referring to an article of the Civil Code of the Russian Federation and Ruling no. 11 of the Plenum of the Supreme Court of the Russian Federation. It gave the following reasoning:

"... controversial information: "... [to] which indecently quickly developed entrepreneurial activity, spitting on the charter of the partnership and a number of regional and federal laws" are subject to rebuttal [by the defendants]...because in the course of the trial the defendants did not prove that T.'s actions were unlawful.

Judgment of the ECtHR dated 13.06.2017

The statement that a crime has been committed must be considered in the manner provided for by the Code of Criminal Procedure, therefore N.’s statement cannot be recognized by the court as a value judgment or opinion, and [its authenticity] must be proved by presenting to the court criminal procedure documents confirming that in the actions of L.K. there was a crime. In violation of an article of the Civil Code, the defendant failed to present such documents to the court...

Judgment of the ECtHR dated 03.10.2017

The court cannot accept as grounds for dismissing the claim [for the protection of honor, dignity and business reputation] the arguments of the defendants, according to which the disputed information is opinions, value judgments that are not subject to refutation in accordance with the article of the Civil Code, for the following reasons.

Ruling of the Supreme Court of the Russian Federation of January 9, 2018 N 305-ES17-19519 in case N A40-211675/2016
Ruling of the Supreme Court of the Russian Federation of January 9, 2018 N 303-ES17-19915 in case N A24-84/2017

According to the article of the Civil Code of the Russian Federation, a person has the right to demand in court a refutation of information that discredits his business reputation, if the person who disseminated such information does not prove that it is true; if information discrediting the business reputation of a legal entity is disseminated in the mass media, they must be refuted in the same mass media.

Ruling of the Supreme Court of the Russian Federation of January 23, 2018 N 305-ES17-20889 in case N A40-166380/16
Determination of the Constitutional Court of the Russian Federation of January 25, 2018 N 62-O

ARTICLES OF THE CIVIL CODE OF THE RUSSIAN FEDERATION,

AS WELL AS PART 1 OF ARTICLE 6 OF THE FEDERAL LAW "ON ORDER

CONSIDERATION OF APPEALS OF CITIZENS OF THE RUSSIAN FEDERATION"

The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazev, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtsev,

Determination of the Supreme Court of the Russian Federation of February 27, 2018 N 309-ES17-23545 in case N A60-60916 / 2016

According to an article of the Civil Code of the Russian Federation, a legal entity has the right to demand in court that information discrediting its business reputation be refuted if the person who disseminated such information does not prove that it is true; if information discrediting the business reputation of a legal entity is disseminated in the mass media, they must be refuted in the same mass media.

Ruling of the Supreme Court of the Russian Federation of February 26, 2018 N 309-ES17-23372 in case N A07-26792/2016

According to the article of the Civil Code of the Russian Federation, a person has the right to demand in court a refutation of information that discredits his business reputation, if the person who disseminated such information does not prove that it is true; if information discrediting business reputation is disseminated in the mass media, they must be refuted in the same mass media.

Ruling of the Supreme Court of the Russian Federation of March 12, 2018 N 304-ES18-71 in case N A27-13325/2016

Civil Code of the Russian Federation Article 152. Protection of honor, dignity and business reputation

(see text in previous edition)

At the request of interested persons, the protection of the honor, dignity and business reputation of a citizen is allowed even after his death.

3. If information discrediting the honor, dignity or business reputation of a citizen is contained in a document emanating from an organization, such document is subject to replacement or revocation.

6. The procedure for refuting information discrediting the honor, dignity or business reputation of a citizen, in other cases, except for those specified in paragraphs 2 - of this article, is established by the court.

7. The application to the violator of measures of responsibility for non-execution of a court decision does not relieve him of the obligation to perform the action provided for by the court decision.

10. The rules of paragraphs 1 - of this article, with the exception of the provisions on compensation for moral damage, may also be applied by the court to cases of dissemination of any information about a citizen that does not correspond to reality, if such a citizen proves that the indicated information does not correspond to reality. The limitation period for claims made in connection with the dissemination of the said information in the mass media is one year from the date of publication of such information in the relevant mass media.

New edition Art. 152 of the Civil Code of the Russian Federation

At the request of interested persons, the protection of the honor, dignity and business reputation of a citizen is allowed even after his death.

3. If information discrediting the honor, dignity or business reputation of a citizen is contained in a document emanating from an organization, such document is subject to replacement or revocation.

7. The application to the violator of measures of responsibility for non-execution of a court decision does not relieve him of the obligation to perform the action provided for by the court decision.

10. The rules of paragraphs 1-9 of this article, with the exception of the provisions on compensation for moral damage, may also be applied by the court to cases of dissemination of any information about a citizen that does not correspond to reality, if such a citizen proves that the indicated information does not correspond to reality. The limitation period for claims made in connection with the dissemination of the said information in the mass media is one year from the date of publication of such information in the relevant mass media.

Commentary on Art. 152 of the Civil Code of the Russian Federation

1. The commented article establishes special (not provided) ways to protect honor, dignity and business reputation as personal non-property rights of a person. The specifics of intangible goods predetermine the specifics of their judicial and other protection.

2. It is known that a certain social assessment of a person is recognized as an honor, and a subjective idea of a person about the public assessment of his personality is recognized as a dignity. The law proceeds from the fundamental "non-divergence" of these categories, without providing for the special features of any of them. Business reputation - the opinion of the society surrounding about professional qualities subject.

Arbitrage practice.

A mass media outlet is not responsible for the dissemination of information that does not correspond to reality and discredits the business reputation of a legal entity if it verbatim reproduced a message published by another mass media outlet that can be identified and held accountable (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 23, 1999 No. 46).

Another commentary on Art. 152 of the Civil Code of the Russian Federation

1. The commented article 152 of the Civil Code of the Russian Federation is devoted to the protection of the most important intangible benefits: the honor, dignity and business reputation of a citizen and the business reputation of a legal entity from defamation.

Dignity is an assessment by the subject of civil legal relations of his qualities in his own opinion. Honor is an assessment of the qualities of the subject of civil legal relations public opinion. Business reputation is an assessment by public opinion of such qualities of a subject of civil legal relations that are directly related to the execution by a citizen official duties, production of goods, performance of works and provision of services, as well as the implementation by a legal entity of its statutory activities.

2. In paragraph 2 of Art. 152 provides for the protection of these benefits by placing the court on the offender the obligation to refute the disseminated information. The grounds for the emergence of the right to refutation are: dissemination of information, i.e. their communication to at least one, in addition to the victim himself, person; discrediting the honor, dignity or business reputation of the nature of the disseminated information, i.e. the presence in them of messages about discrediting the victim facts; inconsistency of this information with reality. The fault of the tortfeasor is not a condition for the refutation of widespread information. The burden of proving the accuracy of the disseminated information lies with the distributor. Information, although discrediting, but reliable, is not subject to refutation.

3. The right to publish a response is a method of protection in the event that the disseminated information does not report discrediting facts, but the disseminated information, such as an expressed opinion, nevertheless affects the rights and legally protected interests of the victim.

4. Since a legal entity, by virtue of its legal nature, is unable to experience physical and moral suffering, the rule of paragraph 5 of Art. 152 on compensation for moral damage caused by defamation applies only to a citizen. Entity is an artificial legal construction and does not have a psyche, therefore the rule of paragraph 5 of Art. 152 does not apply to him. At the same time, it should be noted that in paragraph 11 of the Decree of the Plenum of the Armed Forces of the Russian Federation of August 18, 1992 N 11 "On some issues that have arisen when the courts consider cases on the protection of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" (as amended on December 21, 1993 N 11, on April 25, 1995 N 6 // Bulletin of the Armed Forces of the Russian Federation. 1992. N 11; 1994. N 3; 1995. N 7) contains a provision on the possibility of compensation for moral damage to a legal face. However, in modern judicial practice, this incorrect provision is not applied by the courts. A legal entity, like a citizen, in addition to giving a refutation and publishing a response, has the right to demand compensation for the damages caused. .