Every employer may encounter lack of qualifications, negligence, or simply frivolity of an employee, which may result in material losses for the employer. Moreover, the violation may not necessarily involve causing direct damage to the employer’s property. It is possible to recover material damages for violation of labor discipline as such.
There are ways to pre-trial resolve a conflict situation, but the employee does not always meet the employer halfway. Therefore, sometimes the employer has to file a claim and the proceedings develop into litigation. In this regard, the employer needs to approach the preparation and filing of the claim extremely carefully, since in case of any violations on his part, the court may side with the employee.
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Drawing up a statement of claim for recovery of material damage
If it was not possible to resolve the conflict with the employee pre-trial, then the time comes for litigation. In the claim, the plaintiff indicates how the material damage was caused and what specific property it was caused, or what costs the employer incurred due to the employee’s misconduct.
The employer's evidence base can be witness testimony, expert opinions, circumstances of damage or other documented facts of the employee's guilt.
When filing a claim, the employer must attach a copy of the employment contract to the claim.
The statement of claim must be made in writing, by hand or using a computer. The contents of the claim must include:
- full name and location of the court;
- indication of the details of the plaintiff and defendant;
- subject of the application;
- grounds for filing a claim;
- cost of claim;
- data on attempts to resolve the conflict pre-trially;
- personal signature of the plaintiff and seal of the organization.
Indication of the claim price is a mandatory condition. It is quite difficult to calculate the amount of damage caused on your own, therefore, when drawing up a claim, it is better to seek help from specialist appraisers.
Form of statement of claim to the court
The statement of claim can be filed in paper or electronic form (if the court has the appropriate technical capability).
If the first filing option is chosen, then a printed and signed claim with attachments must be submitted to the court using the postal service or directly to the court office. The address and operating hours of courts are usually posted on their official websites.
If the statement of claim is submitted directly to the court office, we recommend that you have an additional copy of the statement of claim with you, on which the court office employees will mark acceptance.
Filing a claim for compensation for material damage
The place where a claim is filed is primarily determined by its cost. So, if the price of the claim is more than 50 thousand rubles, then the applicant applies to the district court at the place of residence of the defendant. If it is less than this amount, then the magistrate will consider the case.
The employer can file a claim against the employee no later than one year from the date of the damage.
An application to the court can be submitted by the plaintiff either in person, through an authorized representative or by mail. The main thing is to pay the state fee before filing and attach the corresponding receipt to the documentation attached to the claim. The amount of the state fee depends on the amount of the claim. You can calculate it on the official website of the Supreme Court. Pay - at a bank, post office or any other authority that accepts payments.
If the applicant presents compelling arguments and evidence confirming the employee’s guilt, the court will side with the plaintiff. However, the law provides for a number of situations in which an employee will be exempt from compensation for damage.
Thus, an employee is exempt from payments if:
- the damage was caused by unforeseen events that were beyond the control of the employee;
- an attempt to eliminate problems that caused damage threatened the life of the employee;
- the damage was caused by self-defense;
- material damage was partially or completely caused by the actions of the employer;
- the employee was released from liability by the employer.
Among other things, the court will exempt the employee from compensation for damage if the harm caused to the employer was the result of an ordinary economic risk or due to the emergence of production or technological innovations for which the employee was not properly prepared.
Sample of a civil claim in a criminal case
Filling example
Sample claim for compensation for damage caused by a crime
Industrial District Court of the city of Barnaul, Altai Territory
Civil plaintiff: Natalya Stanislavovna Ivanova, Barnaul, Vlasikha village
Civil defendant: Fedyashin Pavel Yuryevich Barnaul, Suvorova St., 10-86
Cost of claim: RUB 319,193.
State duty: RUB 6,791.93. (the civil plaintiff is exempt from paying state duty
Part 2 Art. 44 of the Criminal Procedure Code of the Russian Federation)
CLAIM for compensation for damage caused by a crime (civil claim within a criminal case)
The Industrial District Court of the city of Barnaul, Altai Territory, is handling criminal case No. 1-222/2018 on charges of Pavel Yuryevich Fedyashin (hereinafter referred to as the defendant) of committing a crime against Natalya Stanislavovna Ivanov (hereinafter referred to as the plaintiff).
This crime caused property damage in the amount of 319,193 rubles. (254550+64643).
Between the plaintiff and the defendant on March 16, 2017. a contract was concluded for the construction of house No. 8 in SNT “Prigorodnoye”, plot No. 208.
According to the terms of the contract, the defendant was supposed to begin work on June 1, 2017, and finish work on August 15, 2017. The defendant had to carry out work on the construction of a house on the plaintiff’s site in two stages - first, pour the foundation. At the second stage, install the log frame, install subfloors and ceilings, install the roof and treat the outside of the house with antiseptic impregnations (clause 4 of the Agreement).
The transfer of money is confirmed by receipts for receipt of money:
03/16/2017 the defendant received 193,000 rubles from the plaintiff. 08/09/2017 the defendant received 20,150 rubles from the plaintiff. 08/10/2017 the defendant received 111,400 rubles from the plaintiff. Total: RUB 324,550 Calculation: 193000+20150+111400=324550 The defendant performed work in the amount of 70,000 rubles.
The defendant illegally took possession of the plaintiff’s funds in the amount of 254,550 rubles. Calculation: 324550-70000=254550. In this regard, the victim filed a complaint with the police. The materials of the criminal case also confirm that the defendant took possession of a sum of money in the amount of 254,550 rubles.
According to Part 1 of Art. 44 of the Criminal Procedure Code of the Russian Federation, a civil plaintiff is an individual or legal entity who has filed a claim for compensation for property damage, if there is reason to believe that this damage was caused to him directly by a crime. The decision to recognize a person as a civil plaintiff is formalized by a court ruling or a decision of a judge, investigator, or inquirer. A civil plaintiff can also file a civil claim for property compensation for moral damage.
In accordance with paragraph 1 of Art. 1064 of the Civil Code of the Russian Federation, harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm.
In addition, the plaintiff suffered moral damage due to the actions of the defendant. The plaintiff experiences moral and mental suffering from the loss of funds that the defendant illegally took possession of. The plaintiff expected that in September 2021 she would be able to move into her own house. Currently, the plaintiff is worried that she will never be able to receive the money, since the defendant owes money to other victims. During the investigation, the defendant did not compensate any victims for damages. In other words, the defendant does not intend to compensate losses to people affected by his criminal actions. The plaintiff estimates moral damage at 100,000 rubles and believes that the court has the right to recover it in full.
In accordance with Art. 151 of the Civil Code of the Russian Federation, if a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for said damage .
When determining the amount of compensation for moral damage, the court takes into account the degree of guilt of the offender and other circumstances worthy of attention. The court must also take into account the degree of physical and moral suffering associated with the individual characteristics of the citizen who suffered harm.
According to Art. 1101 of the Civil Code of the Russian Federation, compensation for moral damage is carried out in monetary form. The amount of compensation for moral damage is determined by the court depending on the nature of the physical and moral suffering caused to the victim, as well as the degree of guilt of the harm-doer in cases where guilt is the basis for compensation for harm. When determining the amount of compensation for harm, the requirements of reasonableness and fairness must be taken into account.
On the basis of the above,
I ASK THE COURT:
1. To recover from the civil defendant in favor of the civil plaintiff compensation for property damage caused by the crime in the amount of 254,550 rubles.
2. To recover from the civil defendant in favor of the civil plaintiff compensation for moral damage in the amount of 100,000 rubles.
Appendix , documents in copies:
1. Contract No. 8 dated March 16, 2017.
2. Receipts dated 03/16/2017 and 08/09/2017 on one sheet.
3. Receipt dated August 10, 2017.
4.Copies of the statement of claim and documents attached to it to the civil defendant.
___________ Ivanova N.S.
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Sample protocol of a court hearing on parole
Protocol of the court session
city (village)___________________________ “__” ______ 20___
Judge of the district court (F. I. O.) with the secretary (F. I. O.), with the participation of an assistant prosecutor for supervision of compliance with the legality of execution of punishment (F. I. O.), a representative of the Federal Penitentiary Service... Federal Penitentiary Service (F. I. . O.) convicted person (full name, full name), victim (full name, full name)
Having considered the petition of the convicted person (full name) at the court hearing
The following appeared at the court hearing: ...
The identity of the convicted person is established: ...
The powers of the representative of the Federal Penitentiary Service are checked... (certified by a power of attorney).
The composition of the court is announced.
The petition is considered by a single judge (full name).
It is reported who the prosecutor is, the secretary of the court session.
The right of recusal is clarified.
No objections have been filed.
The presiding officer explains to the convicted person the procedural rights provided for in parts 3 and 5 of Art. 399 Code of Criminal Procedure of the Russian Federation.
Convict: my rights are clear, I (don’t) need the services of a defense lawyer.
(In case of participation of the victim and (or) his representative, the presiding officer explains to them the procedural rights provided for in Part 3 of Article 399 of the Code of Criminal Procedure of the Russian Federation)
Victim: the rights are clear.
The court asks for statements and petitions.
Representative of the Federal Penitentiary Service: Please attach a certificate of encouragement to the materials.
The issue is being raised for discussion at the request of a representative of the Federal Penitentiary Service.
No objections were received.
The court, conferring on the spot, decided to satisfy the request of the representative of the Federal Penitentiary Service and to attach a certificate of encouragement to the case materials.
There are no other statements or petitions.
The court proceeds to consider the petition on its merits.
The convict explained: I support the petition I submitted, I ask for parole. I repented, realized my guilt, and took the path of correction. I believe that by my behavior I have proven that I do not need to further serve my sentence. My family is waiting for me in freedom.
The presented materials are examined:
l. d. - petition,
l. d. - characteristic,
l. d. - extracts from documents on incentives (recovery),
l. d. - sentence,
l. d. - certificates.
Representative of the Federal Penitentiary Service: The convict (full name) is characterized positively, has no existing penalties, has been repeatedly encouraged by the administration of the institution, has proven his correction and does not need to further serve the sentence imposed by the court. The administration of the correctional institution supports the petition of the convicted person.
Victim: agrees (disagrees) with the petition of the convicted person.
Prosecutor: Taking into account the characteristics and materials presented, I believe that the convict’s request for parole should be granted. The presented materials indicate its correction.
Asking about additions. No extras.
Consideration of the petition on its merits has been completed.
The court retires to the deliberation room.
The exit decision has been announced.
The decision can be appealed within 10 days from the date of its adoption. If an appeal is filed, the convicted person has the right to petition for his participation in the consideration of the complaint by the appellate court.
The right to familiarize yourself with the minutes of the court hearing and make comments on it within 3 days from the date of familiarization and the provisions of Part 7 of Art. 79 of the Criminal Code of the Russian Federation was explained to the convicted person.
The minutes of the court session were prepared and signed: “__” ______ 20___
Presiding judge:
Secretary s/z:
