Like civil law, material liability involves redress. However, in the relationship from which it arises, the parties are not equal. The term "liability", as a rule, is considered in the plane of labor interactions between the employer and the employee.
The concept is disclosed by article 233 of the TC. The norm says that the liability of a party to the contract occurs for damage caused by it to another participant in the relationship as a result of an unlawful guilty action / inaction. A feature of the article is that it applies to both the employee and the employer. Therefore, to say that punishment can occur only for the subordinate side is incorrect.
Along with this, military service has its own specifics. For all citizens in the ranks of the Armed Forces, Russia acts as a tenant. Accordingly, the material responsibility of the military personnel has its own characteristics. Let's consider them in more detail.
General information
The material liability of servicemen for damage caused to a state is determined by the need to ensure the protection and preservation of state property. The procedure and conditions for applying sanctions to perpetrators are regulated by a special regulatory act. It is the 161 Federal Law "On the liability of military personnel ." A number of provisions are also present in the normative act regulating the status of these citizens.
Definition
The legal liability of servicemen in the legal sense is considered as the possibility of imposing on individuals the obligation to compensate them for the damage done to the property of the organization on whose territory they are located during their stay in the armed forces. Sanctions are imputed guilty regardless of the application of administrative, disciplinary or criminal punishment. The imposition of liability for compensation for harm is within the competence of state bodies.
Goals
The material liability of servicemen is focused on the formation of citizens in the ranks of the Armed Forces with a careful attitude to property belonging to the state. This socially significant aspect of the behavior of individuals is enshrined in article 26 of the regulatory act regulating the status of entities. It established that a soldier is obliged to protect the property of a military organization in which he is serving. A similar requirement is present in the Air Force. Holding a member of the armed forces liable is carried out only to the extent of the damage actually caused to them.
Subjects
The Federal Law "On the Liability of Military Personnel " applies to citizens located on the territory of military units, garrisons and other similar organizations in the process of fulfilling duties in accordance with the Air Force Directorate, as well as persons called up for training camps. When applying the provisions of a regulatory act, a number of nuances must be taken into account.
First of all, the prosecution of a material nature is allowed if damage to the property of the military organization was caused directly due to the inaction / actions of the soldier in the process of fulfilling his duties. If it arose as a result of the unlawful behavior of the subject, not when performing the statutory tasks, civil measures are applied to him.
Explanations
The Plenary Session of the Armed Forces in Resolution No. 9 of February 14, 2000, as a condition for the occurrence of material liability, calls harm in the performance of official duties. At the same time, this does not apply to the process when the individual is just starting to solve problems. In practice, the courts have some difficulties in differentiating circumstances. Not all cases that are established in the Federal Law "On Military Duty and Service", the authorities consider it permissible to relate to the performance of official duties.
For example, we are talking about following a citizen to the place of performing tasks and vice versa, being held captive, undergoing treatment, missing, etc. In addition, it should be borne in mind that when participating in trips and exercises of ships, while on a business trip, a person has the right to relaxation. Accordingly, these days he actually does not fulfill his duties.
Interesting fact
From the above explanations, the following point becomes apparent. Servicemen who caused harm to a military organization while not performing their official duties (for example, while on vacation) compensate it in full in civil liability. This is realized by providing things of the same quality and of the same kind, correcting damage to an item, compensation for losses.
Conditions of occurrence
The Federal Law "On the Liability of Military Personnel " defines mandatory circumstances in which sanctions can be applied to the perpetrator. This is allowed only in the presence of real harm, unlawfulness in actions, a causal relationship between behavior and the resulting harm, proven guilt. These conditions must be met at the same time.
Real harm
The law on material liability of servicemen in article 2 defines this concept. The real harm is the loss or damage to the organization’s property, the costs that it needs to incur, or the expenses already incurred to restore the values.
Such damage also includes excessive payments. These include, in particular, the amounts of fines, salaries, cash allowances transferred to civilian personnel and dismissed military personnel due to unlawful termination of the contract or delay due to the fault of the issuance of labor books, as well as funds received in excess of the established amount due to a counting error.
The objects
Material assets within the framework of the law in question are all types of weapons, military and other equipment, fuel, ammunition, food, engineering, clothing, apartment, chemical property, other funds, including money that are managed by military units, military establishments and institutions, organizations and enterprises of the Ministry of Defense.
Loss is the disposal of an object from the possession of the owner or user, contrary to their will and will, due to the failure to take appropriate measures to preserve it. Damage to property is called causing damage to things, which resulted in the loss (partial or complete) of useful properties. It differs from loss in that it always arises with a direct impact on an object. For example, it can be arson, destruction, etc. Damage can be caused either intentionally or by negligence.
Important point
When establishing a specific type of real harm caused by military personnel, it should be borne in mind that damage and loss of values of certain categories (ammunition, weapons, military equipment), as well as causing them to be defective due to direct physical impact during grave consequences (for example, entailing a decrease in the combat effectiveness of the unit and etc.) possess signs of criminal offenses. The punishment for them is established by 346-348 articles of the Criminal Code. This, however, does not exclude the possibility of applying liability measures to the perpetrators.
Costs
As indicated above, in addition to the value of property lost, damaged or destroyed, the structure of real harm includes costs that the military unit will have to carry out or has already made to restore or acquire values. These, for example, include funds spent on repairs, transportation in excess of established standards for the provision of troops. Excessive payments made by military unit may be expressed in:
- Penalties, forfeit, fines, compensation for harm under civil law contracts in case of causing it to other entities and their property.
- Cash allowance / salary transferred to employees and civilian personnel as a result of their unlawful dismissal.
- Compensation for harm to health and life of persons arising from the performance of their duties.
Wines
The law "On the material liability of military personnel " allows the application of sanctions only if there is intent or negligence in the actions of the subject. In other words, the citizen’s guilt must be established. The definition of negligence or intent affects the extent to which the military personnel are liable . The burden of proving the fact of harm and other conditions for the application of punishment rests with the commanders and commanders.
Exceptions
161- "On the material liability of military personnel " does not allow the application of punishment to persons who have caused damage as a result of the execution of an order of the chief or commander, lawful actions associated with justifiable risk, or due to force majeure. The latter refers to events that have occurred regardless of the will of man. For example, it can be a collapse in the mountains, a flood, etc.
Justified risk
It takes place if:
- The action was committed to achieve socially useful goals. For example, it may be a test of a new model of weapons.
- The goal that was set could not be achieved by non-risk activities.
- The subject who committed the situation has taken all appropriate measures to prevent harm.
A risk that is associated with a threat to the health or life of a population, an environmental disaster, or the performance of actions in pursuit of unreasonable decisions for the sake of realizing the task at any cost will not be considered justified.
Lawful behavior
The actions resulting in damage, but excluding liability, include:
- The necessary defense.
- Damage during the detention of the offender.
- Urgent need.
- Damage due to mental / physical effects. If it excludes the possibility of managing your behavior and being aware of actions.
Damage caused during execution of an order
In such a situation, material liability of military personnel is excluded. The order of the commander / commander may be lawful or unlawful. However, regardless of this, the soldier is released from punishment. If the order was unlawful, then sanctions do not apply when, when executed directly, the subject did not understand its illegality.
For the damage incurred, the chief / commander will be liable. Meanwhile, the subject who intentionally did harm while carrying out a deliberately unlawful order will be punished on general grounds. This provision is provided for in Article 5 of Article 161-FZ “On the liability of servicemen”.
Classification of punishment
The norms provide for a limited and full material liability of military personnel . The latter occurs in cases where the harm is done:
- The subject who accepted the property under the report for transportation, storage, use, issuance and other purposes.
- Inaction / action containing signs of a criminal act.
- Due to intentional destruction, theft, damage, damage, unlawful use or illegal exploitation of valuables, other illegal behavioral acts, regardless of whether they contain characteristics of a crime.
- A drunk subject. In this case, we are talking about the voluntary intake of not only alcohol, but also drugs and toxic substances.
- Deliberate actions that entailed the costs of staying in health care facilities for citizens affected by them.
Limited liability occurs in case of damage caused by negligence. For example, it can be damage associated with the payment of a fine forfeit, a fine for a simple vessel, wagon, car, violation of the rules for accounting, spending, use, storage of property, etc.
Reimbursement amount
The size of the military personnel’s liability depends on the circumstances in which the damage arose, and the seriousness of the violation. If the actions were committed through negligence, the amount of compensation should not exceed:
- One, two or three monthly salary allowances, as well as 1, 2 or 3 monthly allowances for length of service. According to this rule, the material liability of servicemen under the contract , as well as entities called up for training, is determined.
- 2-month salaries of the monetary content. This amount of punishment is provided for persons who serve on conscription.
Change in recovery
It is allowed by decision of the commander, agreed with the higher authorities, as well as in court. The size of the penalty is reduced. This takes into account the specific circumstances of the incident, the degree of guilt, the property status of the offender.
The amount of the penalty shall not be reduced if the damage is caused as a result of intentional damage, destruction, damage, theft, illegal use or expenditure of valuables or other unlawful actions, regardless of whether they contain signs of a criminal act.
Administrative investigation
The federal law "On the material liability of military personnel " determines the procedure for applying penalties to perpetrators. As one of the stages is an administrative investigation. It may not be carried out if the reasons for the damage, as well as its magnitude and the parties responsible for causing it, were established during the inspection, audit, investigation or inquiry. In other cases, military personnel may be held liable only in accordance with the results of the investigation. On their basis, an order is issued or a lawsuit is filed in court.
Investigation objectives
It is assigned to determine the causes of harm, its magnitude and those responsible for its occurrence. During the investigation, all conditions must be established under which the military personnel are liable . It is assigned immediately after the direct detection of harm.
The duration of the investigation is no more than a month. If necessary, it can be extended for no more than 1 month. The results obtained during the procedure should be documented. During the investigation, answers to the following questions should be given:
- What is property damage and what is its value in monetary terms?
- What specific illegal actions led to its occurrence?
- What norms, instructions, charters, orders were violated by the subject?
- Damage caused by negligence or intentionally?
- Was the inaction / action of the subject harmful?
- What is the degree of guilt of each individual person (if there were several)?
- Was the guilty subject in the exercise of his duties?
- What particular circumstances contributed to the occurrence of harm?
Extrajudicial Order
Military personnel are called to account in accordance with the written order of the commander of the military unit. Punishment is a deduction from monetary contentment of the amount of damage caused. Such a measure is applied if the amount of damage is not more than 1 month's salary and 1 service bonus. Extrajudicial procedure involves a number of measures:
- After the boss has been notified of the damage to the military unit, he appoints an administrative investigation.
- The commander issues an order to include the amount of damage in the book on accounting shortages.
- The chief acquaints the perpetrator with the established amount of harm and the rules for his compensation. At the same time, the serviceman is explained the right to indemnify damage on a voluntary basis.
- The commander issues an order to recover the established amount by deducting it from the monetary content of the offender. The document must be completed within 2 weeks. If an order has not been issued during this period, the chief loses the right to hold the military serviceman accountable.
Court order
It is applied if the amount of damage is more than one monthly salary of monetary allowance and the 1st allowance for service. The court procedure involves filing a lawsuit. The application for compensation for damage caused by the commander of the military unit is submitted by the superior. Claims for holding servicemen and persons dismissed from service liable should be considered by military courts. Withholding from allowance according to the decision made is carried out in accordance with the writ of execution.
Collection limits
Monthly deductions to compensate for damage caused to military personnel are made as a general rule in the amount of 20% of his monetary allowance.The amount of the penalty is 50% of the content if it is aimed at compensation for harm caused by deliberate actions that entailed the cost of treating the injured in medical institutions. If other deductions established by law are carried out from the allowance, their total amount should not be more than 50% of the amount received by the military man.
Additionally
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Conclusion
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