The Method of Determining Non-Material Damage to Health and the Principles of Fairness from the Perspective of Law and Economics Analysis

Ondřej Pavelek (Mendel University)

Abstract

This paper examines the transformation of Czech private law following the adoption of the 2014 Civil Code, which marked a return to traditional legal concepts, particularly in determining compensation for non-material damage in cases of injury and death. The core issue addressed is the challenge of assessing non-material damage using economic criteria, especially given the shift from a point-based system to one that emphasizes fairness. The paper highlights the dominance of the average wage as the primary criterion for calculating compensation, often at the expense of other relevant factors, such as inflation. This approach, while rooted in the methodology provided by the Czech Supreme Court, raises concerns about the fairness and adequacy of compensation, as it may overlook the broader economic context. The study underscores the need to incorporate additional economic criteria to ensure that compensation aligns with the principles of fairness, as mandated by § 2958 of the Civil Code. The paper also explores different approaches to adjusting compensation amounts over time, considering changes in average wages, inflation, or both, and argues for a more comprehensive method that reflects current economic realities.

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