The Legislature denies 26972/2008 UP: non-pecuniary damage and biological damage, ontologically different
(Deus Ex Machina: Presidential Decree 37/2009)
of Joseph Buffone
At the time it was said that the Code of Private Insurance ( Leg. 209/2005) "shall enter into force in 2005, when, as the Court stratified over time the ' art. 2059 cod. Civ. is understood to contain two separate and independent damages categories: the biological damage and moral damage " 1.
He then said, invoking "the canon of interpretation of the CD. legislature aware " 2, the legislature has made an explicit and unambiguous choice of interpretation: the moral is to be treated as a liquidation post completely independent and not absorbed into biological damage.
It is therefore concluded in the sense of believing that the theory of somatization of pain and suffering is not reflected in positive law 3.
The controversy, as is known, was born following the arrests of the United Sections of 11 November 2008 ( No. 26972 - No. 26975) where the Board of legitimacy has led back to drive the non-pecuniary damage setting aside the role of non-pecuniary damage and firing, without notice, the existential damage.
The plenum, in particular, has sought to believe that the biological damage is attended by non-pecuniary damage which is a component, a circumstance that prevents a settlement of two separate items of damage (not ontologically autonomous).
for moral damages, the interpretation of force until 11 November 2008, referred to the term 'dommage moral', introduced in order to safeguard the moral integrity of the victim of the offense, the legal manned by art. In relation to Article 2 of the Constitution. 1 of the Charter of Nice and the Lisbon Treaty, ratified by Italy with L. August 2, 2008, No 130, which protects human dignity as the ultimate expression of his moral integrity and biological (Cass. civ., Sec. III, 12 December 2008, n. 29191).
It was constantly asserted the ontological autonomy, as part of ' art. 2059 cc , axiom, which makes criticism a liquidation carried out, automatically, to the extent of half of the biological damage 4.
Interpretation SAID he had found, in 2003, the final screening of the High Courts. In particular, the Consultation was held that the abstract prediction of the rule in all ' art. 2059 cc should encompass any non-pecuniary damage arising from injury related to the individual values: the moral is subjective, defined as transient disturbance in the state of mind of the victim is the biological damage in the strict sense, defined as lesions of 'interest, constitutionally guaranteed, psychological and physical integrity of the person, following a medical examination (art. 32 of the Constitution), and finally the loss (often defined in law as doctrine and existential) resulting from an impairment of (other) constitutional interests related to the individual ( Constitutional Court., July 11, 2003, No. 233 5). The standard ex
art. 2059 cc , into which he lives, is manifest, therefore, the interpreters in the sense that biological damage and material damage subjective had "a different kind and do not identify themselves in any way" (as Constitutional Court., July 22, 1996, No 293 6), because "the biological damage is the injury to mental, and moral damage is the injury of moral integrity" (Cass. civ., Sec. III, July 12, 2006, No. 15760 7).
a short distance of time from SS.UU. the Supreme Court 8 (see Decision No 26972/2008 9), there is an important intervention of the legislator that, even in a field of peculiar and intervening in a particular sector, revealed a line of reasoning in striking contrast with one made by SS.UU. 26972/08 . This is the DPR March 3, 2009, No 37 (Rules for the regulation of terms and conditions for the recognition of specific causes of disability for service personnel in military missions abroad, in conflict and national military bases, in accordance with Article 2, paragraphs 78 and 79 of Law 24 December 2007, No. 244 10). Article. SAID 5 of the decree introduces the legal criteria for the determination of permanent disability, as follows.
% of IP
Permanent Disability
The percentage of permanent disability (IP) refers to the ability to work, and 'given whichever is more favorable of that determined according to the tables for degrees of disability and its method of use approved in accordance with Article 3, paragraph 3, of Law December 29, 1990, No 407, with DM 5 febbrai 1992, as amended, and the value determined in accordance with Tables A, B, E and F1 attached to the decree of the President December 23, 1978, No 915% DB
biological damage
The percentage of biological damage (DB) and 'determined according to the tables of impairments and the criteria for the application of Articles 138, paragraph 1, and 139, paragraph 4, of Legislative Decree of 7 September 2005 No 209, as amended
% DM
material damage
The determination of the percentage of non-pecuniary damage (MD) is done on a case by case basis, taking into account the amount of pain and disturbance of mood, in addition to the injury personal dignity, in relation to the event and associated damage, to an extent up to a maximum of two thirds of the percentage of biological damage
% IC
Disability
the overall percentage of disability Overall (IC), which in any case can not 'exceed the extent of one hundred percent, and' the sum of the percentages of biological damage, material damage and the value, if positive, representing the difference between the percentage of disability reported the working capacity and the percentage of biological damage: IC = DM + DB + (DB-IP)
Two considerations are important.
1) The Legislature "connects" the biological damage mentioned in the decree under review ( 37/09) than that under the Code of Private Insurance ( Leg. 209/05).
2) in the determination of material damage must be taken into account "the injury to personal dignity."
E ' clear, as the first point, the legislature is introducing a system of compensatory damages biological compact and approved, as depicted in Leg. 209/05 (Articles 138, 139), which makes the theorems of Decree 37/2009 certainly not peripheral but emerging, downstream of a single upstream mens legis.
E ', evident since the second point, the legislature draws the Court stated that the ontological autonomy of the moral damage, making defense of human dignity, as has already been written.
One consideration is disruptive: the Legislature, at least this time, it is absolutely clear, since recourse to mathematical formulas.
Disability total is equal to: "DB + DM" (...).
biological damage that accumulates at the damage.
repudiated, expressly to the thesis of somatization of pain and suffering.
The use of "mathematics" (DB + DM) and the "letters" (DB, DM) seems to want to avoid the risk of a Tower of Babel when interpretive augur assigns each concept to the legal meaning that he likes best.
should, however, noted that the judge has a duty - because under the law - to watch the entire regulatory system for infer the interpretation that most of the other (or one among many) respects the sovereignty of the people as expressed by representative bodies. And then, when the Legislature clearly indicates a path of interpretation, the interpreter remains bound to this.
The decree says that at this point, it should induce agents to meditate upon the hermeneutic of non-pecuniary damage under Article . 2059 cod. Civ. and sections of Cassation simple to call, once again, the question to the United Sections for reconsideration of the matter.
interpreters, formulas in hand, we can only count 11 .
______________
a V, Buffone, the House Report, May 6, 2009 in www.altalex.com .
2 expressly mentioned by: Civil Cassation, sez. III, August 24, 2007, No 17958. The canon of interpretation of the "Legislator aware" implies a parliament in case law and carefully composed, at least in part, by technicians. That said, this is a criterion that should guide the interpreter to the choice hermeneutics closer to the sovereign will of the people as represented in the rooms (a criterion that is too often played down or not taken into account).
3 Viola, the House Report, May 6, 2009 in www.altalex.com .
4 Cass. Civ., Sec. III, March 15, 2007, n.5987 in Resp. civ., 2007, 5, 467.
5 Jur. Lt, 2004, 723, CASSANO note.
6 Jur. Lt, 1997, I, 314, note commands'.
7 Resp. civ., 2007, 1, 28, note TOSCHI Vespasian.
8 Cass. Civ., Sec. A., November 11, 2008, No 26972 in the right guide, 2008, 47 18, known Dalia; commands'.
9 In this rev. 2009, 1 38, cf. also fair. Civ. Mass. 2008, 11 1607.
OJ General Series No 10 93, April 22, 2009.
11 For more information: Viola, The harm, pre-contractual liability, special responsibilities, Halley, 2007 Franzoni, The living law of non-pecuniary damage, in Il Corriere corporation, 2009, 1, Viola, Danni from death and injury, Cedam, 2009; Bilotta, the prejudices of existence: the heart of non-pecuniary damage after SU-2008, in The Civil Liability, 2009, 01; Busnelli, sections merged and non-pecuniary damage, in Riv. Dir Civ., 2009; Buffone, limits on compensatory damages in non-pecuniary damage liability and compensation, 2009, V.
(Deus Ex Machina: Presidential Decree 37/2009)
of Joseph Buffone
At the time it was said that the Code of Private Insurance ( Leg. 209/2005) "shall enter into force in 2005, when, as the Court stratified over time the ' art. 2059 cod. Civ. is understood to contain two separate and independent damages categories: the biological damage and moral damage " 1.
He then said, invoking "the canon of interpretation of the CD. legislature aware " 2, the legislature has made an explicit and unambiguous choice of interpretation: the moral is to be treated as a liquidation post completely independent and not absorbed into biological damage.
It is therefore concluded in the sense of believing that the theory of somatization of pain and suffering is not reflected in positive law 3.
The controversy, as is known, was born following the arrests of the United Sections of 11 November 2008 ( No. 26972 - No. 26975) where the Board of legitimacy has led back to drive the non-pecuniary damage setting aside the role of non-pecuniary damage and firing, without notice, the existential damage.
The plenum, in particular, has sought to believe that the biological damage is attended by non-pecuniary damage which is a component, a circumstance that prevents a settlement of two separate items of damage (not ontologically autonomous).
for moral damages, the interpretation of force until 11 November 2008, referred to the term 'dommage moral', introduced in order to safeguard the moral integrity of the victim of the offense, the legal manned by art. In relation to Article 2 of the Constitution. 1 of the Charter of Nice and the Lisbon Treaty, ratified by Italy with L. August 2, 2008, No 130, which protects human dignity as the ultimate expression of his moral integrity and biological (Cass. civ., Sec. III, 12 December 2008, n. 29191).
It was constantly asserted the ontological autonomy, as part of ' art. 2059 cc , axiom, which makes criticism a liquidation carried out, automatically, to the extent of half of the biological damage 4.
Interpretation SAID he had found, in 2003, the final screening of the High Courts. In particular, the Consultation was held that the abstract prediction of the rule in all ' art. 2059 cc should encompass any non-pecuniary damage arising from injury related to the individual values: the moral is subjective, defined as transient disturbance in the state of mind of the victim is the biological damage in the strict sense, defined as lesions of 'interest, constitutionally guaranteed, psychological and physical integrity of the person, following a medical examination (art. 32 of the Constitution), and finally the loss (often defined in law as doctrine and existential) resulting from an impairment of (other) constitutional interests related to the individual ( Constitutional Court., July 11, 2003, No. 233 5). The standard ex
art. 2059 cc , into which he lives, is manifest, therefore, the interpreters in the sense that biological damage and material damage subjective had "a different kind and do not identify themselves in any way" (as Constitutional Court., July 22, 1996, No 293 6), because "the biological damage is the injury to mental, and moral damage is the injury of moral integrity" (Cass. civ., Sec. III, July 12, 2006, No. 15760 7).
a short distance of time from SS.UU. the Supreme Court 8 (see Decision No 26972/2008 9), there is an important intervention of the legislator that, even in a field of peculiar and intervening in a particular sector, revealed a line of reasoning in striking contrast with one made by SS.UU. 26972/08 . This is the DPR March 3, 2009, No 37 (Rules for the regulation of terms and conditions for the recognition of specific causes of disability for service personnel in military missions abroad, in conflict and national military bases, in accordance with Article 2, paragraphs 78 and 79 of Law 24 December 2007, No. 244 10). Article. SAID 5 of the decree introduces the legal criteria for the determination of permanent disability, as follows.
% of IP
Permanent Disability
The percentage of permanent disability (IP) refers to the ability to work, and 'given whichever is more favorable of that determined according to the tables for degrees of disability and its method of use approved in accordance with Article 3, paragraph 3, of Law December 29, 1990, No 407, with DM 5 febbrai 1992, as amended, and the value determined in accordance with Tables A, B, E and F1 attached to the decree of the President December 23, 1978, No 915% DB
biological damage
The percentage of biological damage (DB) and 'determined according to the tables of impairments and the criteria for the application of Articles 138, paragraph 1, and 139, paragraph 4, of Legislative Decree of 7 September 2005 No 209, as amended
% DM
material damage
The determination of the percentage of non-pecuniary damage (MD) is done on a case by case basis, taking into account the amount of pain and disturbance of mood, in addition to the injury personal dignity, in relation to the event and associated damage, to an extent up to a maximum of two thirds of the percentage of biological damage
% IC
Disability
the overall percentage of disability Overall (IC), which in any case can not 'exceed the extent of one hundred percent, and' the sum of the percentages of biological damage, material damage and the value, if positive, representing the difference between the percentage of disability reported the working capacity and the percentage of biological damage: IC = DM + DB + (DB-IP)
Two considerations are important.
1) The Legislature "connects" the biological damage mentioned in the decree under review ( 37/09) than that under the Code of Private Insurance ( Leg. 209/05).
2) in the determination of material damage must be taken into account "the injury to personal dignity."
E ' clear, as the first point, the legislature is introducing a system of compensatory damages biological compact and approved, as depicted in Leg. 209/05 (Articles 138, 139), which makes the theorems of Decree 37/2009 certainly not peripheral but emerging, downstream of a single upstream mens legis.
E ', evident since the second point, the legislature draws the Court stated that the ontological autonomy of the moral damage, making defense of human dignity, as has already been written.
One consideration is disruptive: the Legislature, at least this time, it is absolutely clear, since recourse to mathematical formulas.
Disability total is equal to: "DB + DM" (...).
biological damage that accumulates at the damage.
repudiated, expressly to the thesis of somatization of pain and suffering.
The use of "mathematics" (DB + DM) and the "letters" (DB, DM) seems to want to avoid the risk of a Tower of Babel when interpretive augur assigns each concept to the legal meaning that he likes best.
should, however, noted that the judge has a duty - because under the law - to watch the entire regulatory system for infer the interpretation that most of the other (or one among many) respects the sovereignty of the people as expressed by representative bodies. And then, when the Legislature clearly indicates a path of interpretation, the interpreter remains bound to this.
The decree says that at this point, it should induce agents to meditate upon the hermeneutic of non-pecuniary damage under Article . 2059 cod. Civ. and sections of Cassation simple to call, once again, the question to the United Sections for reconsideration of the matter.
interpreters, formulas in hand, we can only count 11 .
______________
a V, Buffone, the House Report, May 6, 2009 in www.altalex.com .
2 expressly mentioned by: Civil Cassation, sez. III, August 24, 2007, No 17958. The canon of interpretation of the "Legislator aware" implies a parliament in case law and carefully composed, at least in part, by technicians. That said, this is a criterion that should guide the interpreter to the choice hermeneutics closer to the sovereign will of the people as represented in the rooms (a criterion that is too often played down or not taken into account).
3 Viola, the House Report, May 6, 2009 in www.altalex.com .
4 Cass. Civ., Sec. III, March 15, 2007, n.5987 in Resp. civ., 2007, 5, 467.
5 Jur. Lt, 2004, 723, CASSANO note.
6 Jur. Lt, 1997, I, 314, note commands'.
7 Resp. civ., 2007, 1, 28, note TOSCHI Vespasian.
8 Cass. Civ., Sec. A., November 11, 2008, No 26972 in the right guide, 2008, 47 18, known Dalia; commands'.
9 In this rev. 2009, 1 38, cf. also fair. Civ. Mass. 2008, 11 1607.
OJ General Series No 10 93, April 22, 2009.
11 For more information: Viola, The harm, pre-contractual liability, special responsibilities, Halley, 2007 Franzoni, The living law of non-pecuniary damage, in Il Corriere corporation, 2009, 1, Viola, Danni from death and injury, Cedam, 2009; Bilotta, the prejudices of existence: the heart of non-pecuniary damage after SU-2008, in The Civil Liability, 2009, 01; Busnelli, sections merged and non-pecuniary damage, in Riv. Dir Civ., 2009; Buffone, limits on compensatory damages in non-pecuniary damage liability and compensation, 2009, V.
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