The driver crashed the employer's car, how to recover it?

So the employee talked about penalties, but this is the case. thin. :)))

Well, how can I explain? look - the decision is in your hands, and the debtor is naked as a falcon! This is where it turns out that collection is a delicate matter.

Crashed a government car and fled the scene of the accident

What will I be obliged to continue with the employer or can I change my place of work?

There is only one question, as I understand it. There will be a deprivation of the right to drive a car. No one can force you to work for your current employer. But if you are going to run, then run not only from the scene of the accident, but also from your employer and your family. To Africa, New Zealand, Australia. They are waiting for you there.

Anonymous user Writes:
——————————————————-
> Hello. I really need your advice. The
thing is that my father had an accident on
a > government car. no fault.. to blame
> weather conditions and the swept road.
The car > turned over twice...all are alive. The driver and
> passengers received minor bruises and fright..What
> should I do now if the employer approves my
> father to fully compensate for the damage for the > car at his own expense
. What should I do?

Did they call the traffic police? Is there a resolution to refuse to initiate a case regarding the APN?

It’s not his fault...it’s the weather conditions and the snowy road.

In the dry language of the law, this is called a violation of clause 10.1. Traffic rules. He chose the speed without taking into account the characteristics of the vehicle, did not take into account meteorological conditions and the condition of the road surface. In general, until you tell us all the circumstances of the accident, we will assume that your father is to blame.

The driver crashed the employer's car.

In yellow pants

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I'm the only one

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Full financial liability is borne if the damage was caused during the commission of an administrative offense.. If the accident is registered and he is held administratively liable, then the full amount of damage can be torn off.. If for some reason the decision to impose an administrative penalty is not made (the deadline is missed, terminated the case or the act does not contain signs of an offense - violation of reversing traffic, speeding by less than 10 km/h, etc.) - then only the average monthly... The presence of an agreement on full financial liability in this case does not matter. Since we are not talking about a shortage of valuables entrusted in connection with the performance of work duties, and the driver himself can be fully responsible for the forwarded cargo, but not for the safety of the car, since he himself does not belong to the list of MOLs with which it is possible to conclude contracts. .

Article 242. Full financial liability of an employee
Full financial liability of an employee consists of his obligation to compensate for direct actual damage caused to the employer in full.
Financial liability in the full amount of damage caused may be assigned to the employee only in cases provided for by this Code or other federal laws.
Employees under the age of eighteen bear full financial liability only for intentional damage, for damage caused while under the influence of alcohol, drugs or other toxic substances, as well as for damage caused as a result of a crime or administrative violation.

See comments to Article 242 of the Labor Code of the Russian Federation

Federal Law No. 90-FZ of June 30, 2006 introduced amendments to Article 243 of this Code, which come into force 90 days after the official publication of the said Federal Law.
See the text of the article in the previous edition

Article 243. Cases of full financial liability
Financial liability in the full amount of damage caused is assigned to the employee in the following cases:
1) when, in accordance with this Code or other federal laws, the employee is assigned financial responsibility in full for damage caused to the employer during the performance of the employee’s work responsibilities;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) causing damage while under the influence of alcohol, drugs or other toxic substances;
5) damage caused as a result of the employee’s criminal actions established by a court verdict;
6) damage caused as a result of an administrative violation, if established by the relevant government body;
7) disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;
8) damage was caused while the employee was not performing his job duties.
Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization and the chief accountant.

Article 247. The employer's obligation to establish the amount of damage caused to him and the cause of its occurrence
Before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence.
To conduct such a check, the employer has the right to create a commission with the participation of relevant specialists. Requiring a written explanation from the employee to establish the cause of the damage is mandatory.
In case of refusal or evasion of the employee from providing the specified explanation, a corresponding act is drawn up. The employee and (or) his representative have the right to familiarize himself with all inspection materials and appeal them in the manner established by this Code.

See comments to Article 247 of the Labor Code of the Russian Federation

Federal Law No. 90-FZ of June 30, 2006 introduced amendments to Article 248 of this Code, which come into force 90 days after the date of official publication of the said Federal Law
. See the text of the article in the previous edition

Article 248. Procedure for recovery of damages
Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly salary, is carried out by order of the employer.
The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee. If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.
If the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court.
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part.
By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court. With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property.
Compensation for damages is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.

An employee crashed a company car. How to recover damages?

Our employee crashed a company car without CASCO insurance. What is the algorithm of actions to recover damages? There is an act of acceptance of the transfer of cars and vehicles to the TD on consolidation, a contract mat. there is no responsibility.

Based on the above, you can recover material damages in the amount of average earnings. It is impossible to recover in full, since there is no guilt, there is no court verdict or decision of the relevant government body.

It is possible to recover material damages from an employee in full if the government agency has established that the employee was at fault for the accident (Article 243 of the Labor Code). If there is no guilt (and there are also no cases specified in Article 243 of the Labor Code, appeal ruling of the Supreme Court of the Republic of Khakassia dated June 19, 2012 No. 33-1144/2012), then the employee is liable to the employer only within the limits of his average earnings. This rule cannot be changed by agreement of the parties or by any document.

To hold an employee financially liable, all of the following conditions must be met:

the presence of direct actual damage, confirmed by relevant documents;
the employee’s guilt in causing such damage to the employer. Fault is understood as intent or negligence in the actions of the employee, which led to damage to the employer. The intent is that the employee knew (assumed) that the employer would suffer direct actual damage from his actions;
the employee commits unlawful actions (or inaction), i.e. violating the law;
the presence of a cause-and-effect relationship between the employee’s actions and direct actual damage incurred by the employer.

In this case, within the meaning of Article 233 of the Labor Code, what matters is the employee’s commission of an act for which criminal or administrative liability is provided in the presence of a court verdict or decision of the relevant government body. The mere establishment of an employee’s guilt in an accident when considering a civil case for compensation for damage is not a basis for imposing full financial liability on him or her to the employer.

If an accident occurs while an employee is performing his job duties, the employer compensates for the damage caused by his employee to a third party (Article 1068 of the Civil Code). Subsequently, the employer has the right to recover these amounts by way of recourse (Article 1081 of the Civil Code).

A claim in court is drawn up according to the rules of Article 131 and Article 132 of the Code of Civil Procedure and submitted to the district court.

1. Situation: Is it possible to hold an employee financially liable who was involved in an accident in a company car. The traffic accident was not documented by the traffic police

“As a general rule, an employee bears limited financial liability within the limits of his average monthly earnings. This follows from the provisions of Articles 241, 242, 243 of the Labor Code of the Russian Federation.

Full financial responsibility is assigned to the employee in the following cases:

in the presence of a concluded agreement on financial liability and in other cases provided for by law when the employee performs direct labor duties;
shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
intentional causing of damage;
causing damage while under the influence of alcohol, drugs or other toxic substances;
causing damage as a result of criminal actions of an employee established by a court verdict;
causing damage as a result of an administrative violation, if it is established by the relevant government body;
disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;
causing damage not while the employee was performing his job duties.

This is stated in Part 1 of Article 243 of the Labor Code of the Russian Federation.

It follows from the above that an employee can be held fully financially liable, in particular, for damage caused to the employer as a result of an administrative offense, if the offense is established by the relevant government body. In this case, the administrative offense must be confirmed by a resolution imposing an administrative penalty (clause 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52). This means that if an employee has committed an accident in a company car, then in order to bring him to full financial responsibility, the violation must be recorded in the traffic police protocol, and the employee’s guilt must be documented by a traffic police resolution imposing an administrative penalty. Otherwise, there will be no reason to hold the employee fully financially liable.

The exception is situations when other grounds listed in Part 1 of Article 243 of the Labor Code of the Russian Federation occur during an accident. For example, if it is proven that the employee had an accident while driving while intoxicated.

Advice: in order to avoid disputes and litigation, we recommend that the employer insure the vehicles at his disposal, as well as liability for damage in case of accidents and significant damage to the property of other persons (both citizens and organizations) (Articles 930, 931 of the Civil Code RF).

How to determine the amount of damage caused by an employee of an organization

Before deciding to recover damages from an employee, the employer should conduct an investigation to determine the amount of the loss and the reasons for its occurrence. To check, create a special commission (Article 247 of the Labor Code of the Russian Federation). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing facts of theft or abuse, as well as damage to valuables. Indeed, in these cases, an inventory must be carried out with the preparation of matching statements, and for this an inventory commission must be created (clause 3 of article 11 of the Law of December 6, 2011 No. 402-FZ, clause 1.5 of the Methodological guidelines approved by order of the Ministry of Finance of Russia dated June 13, 1995 No. 49, clause 27 of the Regulations approved by order of the Ministry of Finance of the Russian Federation dated July 29, 1998 No. 34n). The legality of this position is also confirmed by judicial practice (see, for example, paragraph 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52, appeal ruling of the Chelyabinsk Regional Court of July 30, 2013 No. 11-7699/2013).

If the amount of material damage can be established on the basis of documents received from counterparties, a commission need not be created. For example, in the event of an accident caused by an employee, the amount of material damage can be determined using documents received from insurance and repair companies.

The fact that an employee caused damage to the organization’s property should be recorded in a separate act. Current legislation does not oblige the employer to draw up such an act. Nevertheless, a timely document will allow you to record the fact of damage, establish an approximate or exact amount and subsequently confirm it. The form of the act is not fixed by regulatory documents, so it can be drawn up in any form.

Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.) in force in the area. In this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). This procedure is established by Article 246 of the Labor Code of the Russian Federation.

Any direct effective damage caused to the employer can be recovered from the guilty employee. Namely:1

amount of material damage;
expenses for acquiring or restoring property (for example, repairs);
expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident to the extent not covered by insurance compensation).

This is stated in Article 238 of the Labor Code of the Russian Federation.

After determining the composition and amount of damage, obtain written explanations from the employee about the reasons why it arose. If the employee refuses to do this, then draw up a report. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.1

To recover the amount of damage from the guilty employee, the head of the organization must issue a withholding order. The order must be issued no later than a month after the commission establishes the amount of damage.2

Based on the order, deduct the cost of damage from the employee’s income, not exceeding his average monthly salary. Taking into account this rule, it is necessary to recover damages both in cases where the employee bears limited financial liability, and in cases where financial liability arises for the full amount of damage.1

If the amount of damage exceeds a month’s salary or the monthly deadline for issuing a penalty has been missed, then compensation for damage is possible either voluntarily (with the consent of the employee) or through the court.

An employee can voluntarily compensate for the damage either fully or partially. In this case, by agreement of the parties, compensation for damage by installments is allowed. In this case, the employee must provide the employer with a written undertaking for damages indicating specific payment terms. If in the future the employee decides to resign and refuses to compensate the remaining amount of damage, then the outstanding debt can be collected in the general manner - through the court.1

It should be noted that with the consent of the employer, the employee can compensate for damage not only with money: he can also transfer equivalent property as repayment or undertake to correct the damaged.

Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions (inaction) that caused the damage.

This procedure is established by Article 248 of the Labor Code of the Russian Federation.

Make deductions taking into account the established restrictions.

Question from practice: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income

The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure has been established for its calculation based on the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it. The different names that are used to determine the amount of payments cannot serve as a basis for using any other procedure.

The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). In this case, the average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, clauses 9 and 13 of the Regulations approved by the Government Decree RF dated December 24, 2007 No. 922).

Question from practice: who will compensate for damage in an accident where an employee of the organization is found to be at fault

Damage in an accident that an employee caused to third parties (in excess of compensation under compulsory motor liability insurance) must be compensated at the expense of the organization (Article 1068 of the Civil Code of the Russian Federation). In this case, the employee who caused the damage is obliged to compensate for such expenses in full (subclause 6, part 1, article 243 of the Labor Code of the Russian Federation).

The employee must reimburse:

the amount that the organization transferred to the injured party in excess of compensation under compulsory motor liability insurance;
the cost of repairing the organization's car (if the organization did not enter into a voluntary property insurance agreement or the insurance did not fully cover the costs of repairs).

However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused by him (Article 240 of the Labor Code of the Russian Federation).

How long can an employer go to court to recover material damages from an employee?

It happens that the amount of damage exceeds the employee’s average earnings. The employer cannot deduct more from him. Then the only correct solution would be to go to court. The same applies to the situation when an employee quits without compensating for all the employer’s losses, as well as when he refuses to compensate for damages voluntarily.

At the same time, it is very important to comply with the deadline set for employers to go to court. Namely one year. After all, if you miss it, you won’t be able to compensate for the damage at all. This procedure is provided for in Part 2 of Article 392 of the Labor Code of the Russian Federation.

In any case, the court will accept the statement of claim even after the deadline has expired. However, the refund will be denied. But if you present to the court valid reasons for missing the deadline, then it can be reinstated (Part 3 of Article 392 of the Labor Code of the Russian Federation).

Good reasons mean exceptional circumstances beyond the control of the employer that prevented the filing of a claim. For example, a natural disaster or other force majeure situation that cannot be influenced (resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52).

How do you count the year for filing a claim? Count it from the date the damage was discovered. That is, from the date of completion of the inventory, during which the amount of damage received was identified or recorded. In this case, the term itself is considered to end on the corresponding date of the last year of the term. Moreover, if the last day of the deadline falls on a non-working day, then it is transferred to the next working day. This is exactly the procedure provided for calculating deadlines in parts 3 and 4 of Article 14 of the Labor Code of the Russian Federation.

In practice, a compensation agreement with an installment plan is often signed with the employee. But the guilty do not comply with it. In such circumstances, the period for the employer to go to court is counted from the date when the person violated the terms of the installment plan. This is, in particular, indicated in the ruling of the Supreme Court of the Russian Federation dated July 30, 2010 No. 48-B10-5.”

How to recover damages for a damaged company car

How can you recover damages in full from a former employee (driver) for a broken company car? A case was opened regarding an administrative offense under Article 12.24 of the Code of Administrative Offenses of the Russian Federation. He was found guilty of an accident, but was not brought to administrative responsibility, since the victim had no claims against him and the inspector issued a resolution to terminate administrative proceedings under Article 12.24 of the Code of Administrative Offenses of the Russian Federation.

: By virtue of Part 1 of Art. 238 of the Labor Code of the Russian Federation, an employee is obliged to compensate the employer for direct actual damage caused to him. Rostrud considers direct actual damage to be a shortage of monetary and property assets, damage to the employer’s equipment, furniture or materials (letter of Rostrud dated October 19, 2006 No. 1746-6-1).

In accordance with clause 6, part 1, art. 243 of the Labor Code of the Russian Federation, an employee may be brought to full financial liability for causing damage as a result of an administrative violation established by the relevant government body. To bring liability on this basis, it is necessary to have a decision of an official or body authorized to apply an administrative penalty that has entered into legal force, as well as the existence of a causal connection between the administrative offense committed by the employee and the direct actual damage incurred by the employer (Determination of the St. Petersburg City Court dated April 28 .2010 No. 5493).

If an employee was released from administrative liability for committing an administrative offense due to its insignificance, about which, based on the results of the consideration of the administrative offense case, a decision was made to terminate the administrative offense proceedings, and the employee was given an oral reprimand, such employee may also be subject to be assigned financial liability in the full amount of the damage caused, since if the administrative offense is insignificant, the fact of its commission is established, and all the signs of the offense are identified and the person is released only from administrative punishment (clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 ).

To compensate for the damage caused in full in court, it is necessary to have certified copies of the administrative case: a certificate of an accident, a vehicle inspection report, a diagram of the accident, a protocol of an administrative offense, a resolution to bring the perpetrator to administrative responsibility. These documents can be requested through the court.

In accordance with Part 2 of Art. 392 of the Labor Code of the Russian Federation, the employer has the right to go to court in disputes about compensation by an employee for damage caused to the employer within one year from the date of discovery of the damage caused.

To bring an employee to financial responsibility, it is necessary to comply with the conditions provided for in Art. 233 Labor Code of the Russian Federation:

— the presence of direct actual damage, confirmed by relevant documents (internal investigation);

- the employee’s guilt in causing such damage to the employer. Fault is understood as intent or negligence in the actions of an employee that led to damage to the employer. The intent is that the employee knew (assumed) that the employer would suffer direct actual damage from his actions;

— the employee’s commission of unlawful actions (or inaction), i.e. illegal actions (internal investigation);

— the presence of a causal connection between the employee’s actions and direct actual damage incurred by the employer.

In addition, the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 indicates the employer’s obligation to prove in each of the cases under consideration:

— absence of circumstances excluding the employee’s financial liability;

— illegality of the behavior (actions or inaction) of the harm-doer;

— the employee’s guilt in causing the damage;

— a cause-and-effect relationship between the employee’s behavior and the resulting damage;

— the presence of direct actual damage;

- the amount of damage caused.

However, you cannot recover the full amount of damages from the employee in one lump sum. According to Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages cannot exceed 20 percent.

It is also possible to recover damages in full with the consent of the employee. In this case, the employee’s voluntary consent to compensation for damage must be in writing. That is, with the written consent of the employee, you have the right to recover from him the full cost of the damage. If the employee does not agree to voluntarily compensate for the damage, then it can only be recovered in court.

In order to recover damages from an employee in court, the employer must file a statement of claim with the court. According to Art. 24 of the Code of Civil Procedure of the Russian Federation, cases arising from labor relations are within the jurisdiction of the district court (clause 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52). In accordance with Art. 28 of the Code of Civil Procedure of the Russian Federation, the claim is brought to the court at the place of residence of the defendant.

According to Art. 132 of the Code of Civil Procedure of the Russian Federation, the employer must attach to the statement of claim:

— copies of the application in accordance with the number of defendants and third parties;

— a document confirming payment of the state duty;

— power of attorney or other document certifying the authority of the plaintiff’s representative;

- documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have them;

— evidence of compliance with the mandatory pre-trial dispute resolution procedure, if such a procedure is provided for by federal law or agreement;

- calculation of the amount of money being recovered or disputed, signed by the plaintiff, his representative, copies of the calculation in accordance with the number of defendants and third parties.

Thus, the release of a former employee from administrative liability due to the insignificance of the offense does not exempt him from financial liability in the form of compensation for damage caused to the employer, and in full. You have the right to file a lawsuit within a year from the date of discovery of the damage.

Additionally, you can familiarize yourself with judicial practice on this issue:

Determination of the Perm Regional Court dated August 21, 2012 No. 33-7719/2012

Determination of the Moscow Regional Court dated 09/02/2010 No. 33-16313

The rationale for this position is given below in the materials of the Lawyer.

"4. Circumstances that are essential for the correct resolution of a case of compensation for damage by an employee, the obligation to prove which rests with the employer, in particular, include: the absence of circumstances excluding the financial liability of the employee; illegality of behavior (actions or inactions) of the harm-doer; the employee’s guilt in causing the damage; a causal relationship between the employee’s behavior and the resulting damage; the presence of direct actual damage; the amount of damage caused; compliance with the rules for concluding an agreement on full financial liability*.

If the employer proves the legality of concluding an agreement with an employee on full financial liability and the existence of a shortage for this employee, the latter is obliged to prove the absence of his guilt in causing the damage.

5. An employee cannot be held financially liable if the damage occurred as a result of force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation).

Normal economic risk may include the actions of an employee that correspond to modern knowledge and experience, when the set goal could not be achieved otherwise, the employee properly fulfilled his job duties, showed a certain degree of care and prudence, took measures to prevent damage, and the object It was material assets that were at risk, not the life and health of people.

Failure by the employer to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee may serve as grounds for refusal to satisfy the employer’s demands if this caused damage*.”

"53. By virtue of Article 46 (Part 1) of the Constitution of the Russian Federation, which guarantees everyone judicial protection of his rights and freedoms, and the provisions of international legal acts corresponding to it, in particular Article 8 of the Universal Declaration of Human Rights, Article 6 (Clause 1) of the Convention for the Protection of Human Rights and fundamental freedoms, as well as Article 14 (paragraph 1) of the International Covenant on Civil and Political Rights, the state is obliged to ensure the implementation of the right to judicial protection, which must be fair, competent, full and effective.

Taking this into account, and also taking into account that the court, which is the body for resolving individual labor disputes, by virtue of Part 1 of Article 195 of the Code of Civil Procedure of the Russian Federation must make a lawful and justified decision, a circumstance that is important for the correct consideration of cases of challenging a disciplinary sanction or reinstatement at work and subject to proof by the employer, is his compliance, when applying a disciplinary sanction to an employee, with the general principles of legal, and therefore disciplinary, responsibility, such as justice, equality, proportionality, legality, guilt, humanism.

For these purposes, the employer must provide evidence indicating not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense and the circumstances under which it was committed were taken into account (part five of Article 192 of the Labor Code of the Russian Federation), as well as the employee’s previous behavior and attitude towards work.

If, when considering a case for reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

However, in this case, the court does not have the right to replace dismissal with another sanction, since, in accordance with Article 192 of the Code, imposing a disciplinary sanction on an employee is the responsibility of the employer*.”

3. Ruling of the St. Petersburg City Court dated April 28, 2010 No. 5493

“According to the provisions of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him.

By virtue of the provisions of Art. 241 of the Labor Code of the Russian Federation, for damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.

Financial liability in the full amount of damage caused in accordance with clauses 6, 8 of Art. 243 of the Labor Code of the Russian Federation is imposed on the employee in the event of damage caused as a result of an administrative violation, if such is established by the relevant government body; causing damage not while the employee was performing his job duties.

According to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52, an employee may be brought to full financial liability if, based on the results of consideration of a case of an administrative offense, a judge, body, or official authorized to consider cases of administrative offenses issued a resolution on the appointment administrative punishment (clause 1 of paragraph one of part 1 of Article 29.9 of the Code of the Russian Federation on Administrative Offenses), since in this case the fact that a person committed an administrative offense has been established.

Taking into account the appointment of M. by the decision of the judge of the Frunzensky District Court of St. Petersburg dated April 28, 2006, upheld by the decision of the judge of the St. Petersburg City Court dated November 21, 2006, an administrative penalty in the form of deprivation of the right to drive a vehicle for a period of 6 months, M.'s financial liability accrued in the full amount of damage caused.

According to Art. 238 of the Labor Code of the Russian Federation, direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties*.

Taking into account the decision of the Arbitration Court of St. Petersburg and the Leningrad Region dated February 13, 2008 to recover from St. Petersburg State Unitary Enterprise Passazhiravtotrans in favor of Renaissance Insurance Group LLC compensation for damage caused to M. in the amount of 206,578.82 rubles and 5,631.58 legal expenses, transfer of the specified amount on March 13, 2008, the conclusion that the plaintiff had actual damage is legitimate.

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The driver crashed the employer's car, how to recover it?

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The driver violated the law, but should the employer be responsible?

If your driver is involved in an accident and thereby causes harm, your organization will compensate for it. It should be borne in mind that the legislation provides for a number of features that arise when recovering the amount of damage from an employee who has committed an accident by way of recourse.

Translation agency TRANSLEX: accurate legal translation and linguistic support for business »»

In the modern business world, characterized by mobility and mobility, it is difficult to imagine an organization that would not use company cars in its activities. As you know, the use of vehicles is an activity that creates an increased danger to others. In addition to the legal aspects of this provision, there is also a practical point: a car, as a vehicle, has dangerous properties that are not amenable to complete human control during its operation. Due to these properties, emergency situations are not uncommon when a person driving this vehicle, for various reasons, cannot control it and a traffic accident occurs. We will talk about a traffic accident committed by an employee in the performance of his official duties using a company car. So, your organization has a company car. Two caveats should be made immediately. Firstly, in the issue under consideration, an organization means legal entities of all organizational and legal forms, as well as entrepreneurs without forming a legal entity. Secondly, in the context of the problem under consideration, it does not matter whether the organization’s company car is owned or leased.

Damage caused as a result of a traffic accident.

In most cases, a road traffic accident entails damage to the person or property of a citizen involved in an accident, or to the property of a legal entity. According to the general rule established by 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. At the same time, the already mentioned increased danger of a car, which in a moving state is capable of causing harm even without the fault of the driver, also affects the conditions for the emergence of liability. According to general rules, for liability to arise for damage caused, four conditions must be present simultaneously: the presence of harm; illegality of conduct; a causal relationship between the harm that occurred and the unlawful behavior; the fault of the person who caused the harm. For damage caused during the operation of the car, liability occurs without fault (except for cases where the damage arose as a result of force majeure or the intent of the victim). No-fault liability means that the owner of the vehicle will be liable regardless of whether he violated the traffic rules or not. The liability of a driver involved in an accident without fault is established by Art. 1079 of the Civil Code of the Russian Federation and concerns cases where harm was caused by one source of increased danger (for example, a car and a citizen were involved in an accident). If the accident occurred as a result of a collision between two or more vehicles, then the law (clause 3 of Article 1079 of the Civil Code of the Russian Federation) in this case establishes two options for liability. First, if, as a result of a collision of vehicles, harm is caused to third parties (for example, pedestrians or passengers), then the owners of these vehicles are jointly and severally liable without fault. Damage caused to the owners of colliding vehicles is compensated on a general basis, that is, taking into account all four conditions for the occurrence of liability, including the fault of the participants. In this case, as a review of judicial practice shows, the harm is compensated by the one who is at fault. If the owners of both vehicles are at fault, then the damage is compensated in proportion to the degree of guilt of each owner. But when both vehicle owners are not at fault, the issue can be resolved in two ways. There is such a position that in this case none of the owners has the right to compensation, and there is another - the damage should be distributed between them in equal shares. It is clear that in addition to the general civil legal conditions for the distribution of responsibility for road accidents, there are also technical conditions on the basis of which the traffic police authorities will establish the presence of violations of traffic rules and the persons who violated them. All this speaks to the great importance of the presence of a representative of the organization whose driver was involved in an accident at the very initial stages of consideration of the incident by the traffic police. In this case, the organization will be able to be more prepared to protect its rights, because the organization will be obliged to compensate for the damage caused by the company car.

An employee driving a company car is involved in an accident.

The Civil Code of the Russian Federation (Article 1068 of the Civil Code of the Russian Federation) establishes that a legal entity or citizen compensates for damage caused by its employee in the performance of labor (official, official) duties. Thus, if your employee is involved in an accident while driving a company car, issues of compensation for damage will be dealt with by the organization, and in court proceedings the organization will be the defendant in the case of compensation for damage caused as a result of this accident. Of course, the driver will not be left without attention; he will be involved as a third party on the defendant’s side, but the organization will have to compensate for the damage. At the same time, it is not at all necessary that the driver driving your company car work only on the basis of an employment contract. In relation to the rules established by Art. 1068 of the Civil Code of the Russian Federation, employees are recognized as both citizens performing work on the basis of an employment contract, and citizens performing work under a civil contract, if at the same time they acted or were supposed to act on the instructions of a legal entity or citizen. Thus, for an organization to become liable for the actions of its employee, two additional conditions are necessary: the employee must be in labor or civil law relations with the organization, and when an accident occurs, he must be in the performance of his official duties (responsibilities under a civil contract). It should be taken into account that if the employee was not in the performance of his duties, but at the time of the accident he was carrying out an order from the administration (the owner of the car) in a company car, then in this case it is considered that he was in the performance of work duties.

The current legislation is on the employer's side.

Yes, if your driver is involved in an accident and thereby causes harm, your organization will compensate for it. Of course, these expenses will cause losses to the organization. But this does not mean that they cannot be reimbursed. The law gives the right to a person who has compensated for damage caused by another person to demand that this person reimburse the compensation paid (the right of recourse). This right is enshrined in Art. 1081 of the Civil Code of the Russian Federation. In this case, the demand is made in the amount of the compensation paid, but there is a reservation in case the law establishes a different amount. It should be borne in mind that if the employee does not agree to voluntarily compensate for the amount of damage, then it can only be recovered in court. In this case, it would be illegal to withhold this amount from his earnings or remuneration. The legislation provides for a number of features that arise when recovering the amount of damage from an employee who committed an accident by way of recourse. Knowledge of these features will allow participants in such a dispute to protect their rights. So, it should be remembered that: If the driver involved in an accident works in an organization on the basis of an employment contract, then when collecting the amount of damage from him, the court will be guided by the norms of the Labor Code of the Russian Federation governing the financial liability of the parties to the employment contract (Section XI). If the relationship with the driver is built on the basis of a civil contract, then it is assumed that in this case the issue of compensation for damage by way of recourse will be regulated by the norms of the Civil Code of the Russian Federation and the terms of the contract. To be able to recover the amount of damage from the driver by way of recourse, the presence of his fault in the accident is mandatory. This follows from the content of Art. 233 of the Labor Code of the Russian Federation in relation to employees under an employment contract and Art. 1064 of the Civil Code of the Russian Federation in relation to employees under a civil contract. If the driver works for an organization on the basis of an employment contract, then attention should be paid to determining the amount of damage. The fact is that according to the general rule established by Art. 241 of the Labor Code of the Russian Federation for damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. This rule was enshrined in the Labor Code of the Russian Federation, which has now lost its force. But both before and now, labor legislation also provides for cases of financial liability of an employee in the full amount of damage caused to the organization. At the same time, the new Labor Code of the Russian Federation contains a provision that fundamentally changes the situation regarding the recovery of the amount of damage caused from the employee. Thus, Article 243 of the Labor Code of the Russian Federation, which establishes cases of full financial liability in comparison with Article 121 of the Labor Code of the Russian Federation, is supplemented by paragraph 6. The content of this paragraph is that financial liability in the full amount of damage caused is assigned to the employee in the event of damage caused as a result of administrative misdemeanor, if established by the relevant government agency. That is, previously it was possible to recover from the driver the full amount of damage caused by an accident only when his actions in connection with the accident contained elements of a crime. In other cases, damages could only be recovered from the driver in the amount of average monthly earnings by way of recourse. Now, taking into account the provision of clause 6 of Article 243 of the Labor Code of the Russian Federation, the organization has the opportunity to recover damages in full from its driver who is guilty of an accident by way of recourse even when his actions do not constitute a crime. To do this, it is necessary that, upon the fact of a traffic accident, a case of an administrative offense in the field of road traffic be considered by the relevant government body (depending on the violation - a court, a magistrate or internal affairs bodies) and, based on the result of the consideration, a decision is made against the guilty driver about an administrative offense. It is also necessary that the damage caused by the employee (driver) is actually compensated by the organization and there is a document confirming this compensation. So, having in your hands a court decision obliging the organization to compensate for the damage caused by its driver, a document confirming compensation for damage, a resolution on an administrative offense against the driver, you can count on the fact that the court decision to recover the damage caused from the employee in full will be in your favor. At the same time, be prepared that in court you will have to convincingly prove your position, because the law states: “each party must prove the circumstances to which it refers as the basis for its claims and objections.”