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• Functional Analysis of Damage Charges

  97-117.

  András Mátyus

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  196

  Replacing the legal institution for non-pecuniary damages burdensome by previous theoretical and practical contradictions, Act V of 2013 (Civil Code) introduces damage charges as a separate sanction for violation of personal rights, which has dual functions: on the one hand, it aims for the person being injured in its personal rights receive a monetary allowance that approximates or compensates for the non-material damage suffered. On the other hand, it can also be considered as a punishment under private law for the prevention of similar infringements, as a deterrent.

  According to the intended interpretation, the damage charge can only be applied if it is able to fulfill its function, i.e. if no non-pecuniary damage can be detected for which the damage charge is intended for proportional compensation (primarily), it has no place at all since in the case of infringements leaving the personality untouched, only the punitive function would be exercised, which is completely incompatible with the inherently remedial, corrective nature of private law. According to the unanimous opinion of the legal literature, the compensatory function should have priority and private punishment only take precedence of a secondary nature. On the basis of my work, it is noticeable that judges also consider damage charges as a legal instrument to repair the immaterial injuries suffered and to compensate for the lost pleasures of life, and to not order it upon preventive reasons solely, but in the plurality of cases, preventive function is being evaluated as a factor enhancing the amount of the damage. In my study, I wish to analyze from several aspects, how the dual function of the damage charge is assessed by the courts concerning present cases, by highlighting which nature is protruding concerning the amount or the legal basis. As the research is basically empirical, I will examine through as many judgments as possible, what aspects the courts evaluate in the framework of the compensational (e.g.: physical injuries, mental changes, age, family life of the victim, change in lifestyle, etc.) and of the preventive function (e.g. the gravity of the infringement, its protracted nature, etc.). Finally, I would like to answer the central question of my thesis: what function does practice attribute to the payment of damage charges.