Civil Law Regulation of the Institute of Compensation for Losses in Russia

This study reveals the essence of the civil law contract through the category of «autonomy of the will of the parties», a detailed analysis of the legislative content of the institute of indemnity, the features peculiar only to the Russian legislation are highlighted. The origins of the institute of «indemnity», which was consolidated in England, are considered, its legal regulation and features are analyzed. In the course of the study dialectical, comparative-legal and systematic approach, methods of analysis, synthesis and analogy are used. As a result, the authors, based on the analysis of the current domestic legislation and the studied judicial practice on the example of specific court decisions, propose ways to solve the identified problems by giving explanations to the Plenum of the Supreme Court of the Russian Federation, concerning the distinction between the institute of compensation for losses and other externally similar legal institutions, in order to create a uniform law enforcement practice on this issue. In particular, when considering disputes on compensation for losses, courts should be instructed to analyze not only the issues of existence of an obligation, occurrence of the required circumstances, absence of guilt of the obliged party, but also the legality of the relevant condition included in the contract, conclusion of the contract, parties' possibilities on the one hand, and its compliance with the essence of the institution of compensation for losses, compensatory rather than «punitive» nature—on the other.