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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of November 16, 2006 No. 52

About application by courts of the legislation regulating liability of workers for the damage caused to the employer

(as amended on on September 28, 2010)

For the purpose of the correct application of the legislation regulating liability of workers for the damage caused to the employer and also in view of that courts by consideration of the specified cases had questions requiring permission, the Plenum of the Supreme Court of the Russian Federation decides to make to courts the following explanations:

1. Owing to part one of article 232 of the Labor Code of the Russian Federation (further - the Labor Code of the Russian Federation) obligation of the worker to indemnify the loss caused to the employer arises in connection with employment relationships between them therefore cases on disputes on liability of the worker for the damage caused to the employer including in case the damage is caused by the worker not in case of execution of labor obligations by it (Item 8 parts one of the article 243 Labor Code of the Russian Federation), according to article 24 of the Civil Procedure Code of the Russian Federation (further - the CCP of the Russian Federation) are considered by district court as Trial Court. Such cases are subject to permission according to Section XI provisions "Financial responsibility of the parties of the employment contract" of the Labor Code of the Russian Federation.

By the same rules cases on the claims of employers made after cancellation of the employment contract on compensation of the damage caused by the worker during its action which, as appears from part two of the article 381 Labor Code of the Russian Federation, are individual employment disputes are considered.

2. Proceeding from sense of the subitem 1 of Item 1 of Article 333.36 of part two of the Tax Code of the Russian Federation workers, but not employers treat claimants who are exempted from payment of the state fee according to the recovery suits of the salary (monetary pay) and other requirements following from employment legal relationship and also for recovery suits of benefits.

Considering it, and also in view of that according to the article 393 Labor Code of the Russian Federation in case of appeal to the court with the claim for the requirements following from employment relationships only workers, the employer in case of submission of the action for declaration about compensation of the damage caused by the worker are exempted from payment of duties and court costs shall pay the state fee in the amount of, provided by the subitem 1 of Item 1 of Article 333.19 of part two of the Tax Code of the Russian Federation.

3. The judge has no right to refuse adoption of the action for declaration for motive of the omission by the employer of the year estimated from the date of detection of the caused damage (part two of the article 392 Labor Code of the Russian Federation).

If the employer passed term for appeal to the court, the judge has the right to apply effects of the omission of term (to refuse the claim) if the omission of term before pronouncement of the decision by court it is declared by the defendant and the claimant the evidence of respectfulness of the reasons of the omission of term which can form the basis for its recovery (part three of the article 392 Labor Code of the Russian Federation) will not be produced. The exceptional circumstances which are not depending on will of the employer, interfering submission of the action for declaration can be carried to reasonable excuses of the omission of term.

4. To the circumstances having essential value for the correct permission of case on compensation of damage by the worker to prove obligation which it is assigned to the employer, in particular, belong: lack of the circumstances excluding financial responsibility of the worker; illegality of behavior (actions or failure to act) of the causer of harm; wine of the worker in damnification; causal relationship between behavior of the worker and the come damage; availability of direct valid loss; the extent of the caused damage; observance of rules of the conclusion of the agreement on full financial responsibility.

If are proved by the employer legitimacy of the conclusion with the worker of the agreement on full financial responsibility and availability at this worker of shortage, the last shall prove lack of the fault in damnification.

5. The worker cannot be brought to financial responsibility if the damage arose owing to force majeure, standard economic risk, emergency or justifiable defense or non-execution of obligation by the employer on providing proper conditions for storage of the property entrusted to the worker (article 239 Labor Code of the Russian Federation).

The actions of the worker corresponding to modern knowledge and experience when the effective objective could not be achieved differently can be referred to standard economic risk, the worker properly executed the job responsibilities assigned to it, showed certain degree of care and discretion, took measures for prevention of damage, and object of risk were material values, but not life and human health.

Non-execution of obligation by the employer on providing proper conditions for storage of the property entrusted to the worker can form the basis for refusal in satisfaction of requirements of the employer if it was damage origin.

6. Owing to the article 240 Labor Code of the Russian Federation the employer has the right taking into account specific circumstances under which the damage was caused, to refuse fully or partially compensation of damage by the guilty worker.

Proceeding from contents of the article 240 Labor Code of the Russian Federation such refusal is admissible irrespective of whether the worker bears limited financial responsibility or financial responsibility in complete size, and also irrespective of pattern of ownership of the organization.

The court accepts refusal of the employer of the claim for rules, the stipulated in Article 39 CCP of the Russian Federation.

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