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LEGISLATIVE ASSEMBLY-REPUBLIC OF EL SALVADOR
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DECREE NO 216
THE LEGISLATIVE ASSEMBLY OF THE REPUBLIC OF EL SALVADOR,
CONSIDERING:
I.-That the third paragraph of article two of the Constitution provides for damages, in accordance with the Law, for damages of a moral character.
II.-That despite the integration of this provision in our right constitutional since a thousand nine hundred and fifty, has omitted to legislate on this important one
the main objective is to safeguard the fundamental rights and dignity of persons.
III.-That the Constitutional Chamber of the Supreme Court of Justice declared that this situation constitutes an unconstitutionality by default, and noted a deadline of 30 and one of December of this year for the Legislative Assembly
to issue a Law on the matter.
IV.-That although the possibility of claiming reparation for damages is recognized moral in our legal system, there are special regulations and jurisprudence
makes it difficult to apply it.
V.-That it is previously appropriate and necessary to issue an Act
to determine the conditions of the compensation for moral damage.
THEREFORE,
in use of its powers Constitutional and at the initiative of Deputy Lorena Guadalupe Peña Mendoza and Deputies Jose Edgar Escolan Batse, Rene Alfredo Portillo Cuadra, Alberto Armando
Romero Rodriguez, Ricardo Andres Velasquez Parker and Carlos Mario Zambrano Fields.
DECRETA, the following:
MORAL DAMAGE REPAIR ACT
Object
Art. 1. This Law is intended to establish the conditions for exercising the right to the
compensation for moral damages, recognized in the third paragraph of article two of the Constitution.
Definition
Art. 2. "Moral damage" shall mean any tort arising from an unlawful act or omission that affects or infringes an extra-patrimonial right of the person.
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Moral damage gives right to reparation, whether it comes from a liability
The mere breach of contracts or the mere non-compliance with their execution does not constitute moral harm.
They do not produce moral harm the unfavorable judgments of political, literary, artistic criticism, historical, scientific, religious or professional, nor the unfavourable concepts expressed in the exercise of the right
of freedom of expression, provided that in the way of proceeding there is no slanderous, insulting, defamatory or attack purpose to the intimacy or the image of a person.
Similarly, they do not produce moral damage to the unfavorable judgments of journalistic criticism, nor the unfavorable concepts expressed or disseminated by those who exercise journalism through news, reports, journalistic investigations, articles, opinions, editorials, caricatures and journalistic notes
in general, published in journalistic media written, radio, television and computer, in compliance with the duty to report, by virtue of the right of information or in the exercise of his office or function.
Causes
Art. 3.-They shall be as causes for the repair of moral damage:
a) Any unlawful, intentional or wrongful action or omission in the civil, commercial, administrative, criminal or other fields affecting human rights or rights
of the victim's personality;
b) Any excess of the limits of good faith in the exercise of a legitimate right that
causes harm to another;
c) Unlawful, slanderous or defamatory imputations against the honor or private life
of a person, unless the truth of the imputation is proven; and,
d) substantial project life impact.
Compensation for State Actions or Omissions
Art. 4.-In addition to the grounds established by this Law, in the event of a review in criminal matters, the State will indemnify the victims of the duly proven judicial errors for moral damage.
There will also be compensation for damages In the light of the delay in justice. Likewise, when there has been a violation of constitutional rights and rights
recognized by existing international treaties and secondary laws.
In the cases of the earlier incites, the public official have personal responsibility and the State will respond in a subsidiary manner. The State will be the principal if there is no fault or dolo
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of the public official, or where it proceeds subject to a Law and in compliance with its provisions.
If the State has made the payment of compensation by way of subsidiary, it shall have the right of repetition against the official or responsible employee on the direct route.
Indemnities against the State, ordered in application of this Law, will be charged to the General Budget of the Nation, in the Next fiscal year. If there is a significant disruption
to the Public Finance, it may be ordered that the amounts be paid in subsequent fiscal years.
Law holders
Art. 5.-They are the holders of the right to reparation for moral damage, natural persons who suffer the damage and do not have the legal obligation to bear it.
The right to reparation for moral damages is personal.
legal entities have the right to repair for moral damage if the action or omission significantly affects their credit or their commercial or social reputation.
Transfer or Transmission
Art. 6.-The right to claim reparation for moral damages may be transferred or transmitted by cause of death.
Liability
Art. 7.-It will be necessary to repair the moral damage who, by his own action or omission, causes a tort in the human rights or the personality of another. Guardians or fathers or mothers are also required for actions or omissions committed by persons under their tutelage or parental authority.
The obligation to repair for moral harm is transmitted to the declared heirs, even if the repair is
Action Autonomy
Art. 8. The moral damage has its own nature and therefore the action of reparation is autonomous in relation to other claims, even if it can be exercised as a whole, if the circumstances of the case warrant it.
Procedure
Art. 9. The action to recover damages shall be carried out in accordance with the procedures laid down for the common declarative process, established in the Civil and Commercial Code.
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Demand Content
Art. 10. In addition to the requirements laid down in the Civil and Commercial Code, the application shall contain the pecuniary estimate of the compensation for moral damage, the proposal for remedial measures considered relevant and the identification of public officials or employees
with personal responsibility, if applicable.
Loading of the Test
Art. 11.-Who demands repair for moral damage has the burden of proof.
Relevant Test
Art. 12.-Moral damage must be proven using all lawful means of evidence that are suitable and relevant.
Simple breach of a contract or legal obligation is not proof of moral harm.
Repair
Art. 13.-The repair of moral damage must be carried out with the measures deemed to be effective for this purpose, according to the circumstances of the case.
The repair measures must necessarily include an indemnity of an economic type that is determine fair for the compensation of the affected.
Special Repair by Dano with Advertising
Art. 14.-When the moral damage has been committed through a means of social communication, the authors will be obliged to carry out the following repair measures:
1) To cover all expenses for the victim to exercise his or her right of rectification and response, under the same conditions of the publication that gave rise to the moral damage; and,
2) To request the victim public apologies, under the same conditions of the original publication.
Setting of the Monto
Art. 15.-The amount of the economic compensation for moral damage must be determined on the basis of criteria of fairness and reasonableness, and taking into account the personal conditions of the person concerned and the person responsible, as well as the circumstances of the case and especially the severity of the fact and the guilt.
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Proportionality
Art. 16.-If several people have been sentenced to compensation for moral damages, they will do so on a pro rata basis, unless different degrees of responsibility can be demonstrated and established.
Payment Modes
Art. 17.-When an economic compensation is ordered, it must be paid in legal tender. By way of exception, the parties may agree that the amount of compensation will be paid
in species of equivalent value.
The parties may agree to acts of reparation or compensation of a symbolic nature.
cases, the judge will approve these agreements, if you consider that the effective repair of the moral damage is achieved.
Prescription
Art. 18.-The action of claim for moral damage will be prescribed in five years, counted from the
last act of execution of the illicit conduct that produced it.
The action of liquidation of the compensation will prescribe in three years.
The limitation period shall not be provided for as long as the victim of the moral damage is minor.
In the cases of officials and responsible public employees, and provided that the moral damage has been produced in the exercise of its public function, the time limit The limitation period will begin to be counted from the end of its relationship with the State.
Compliance with international statements
Art. 19.-The provisions of this Law shall be applicable in order to comply with the judgments of the Inter-American Court of Human Rights or other international tribunals containing reparations
on moral damage, in the relevant and in a manner complementary to the international treaty in question.
Fraud Against Public Finance
Art. 20.-Every person who simulates or contributes to simulating the existence of damages of a moral nature
for the purpose of obtaining undue advantages of the Public Finance, will incur the civil, criminal or administrative responsibilities envisaged by the Law. In the event of such conduct, any official or public employee is obliged to give notice or to report the facts to the Office of the Prosecutor General of the Republic.
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Causals and Procedures in Special Laws
Art. 21.-The causal and moral damage procedures provided for in Special Laws shall be processed in accordance with the provisions of those rules.
Vigency
Art. 22.-This Decree shall enter into force eight days after its publication in the Official Journal
.
GIVEN IN THE BLUE HALL OF THE LEGISLATIVE PALACE: San Salvador, ten days of the month
of December two thousand fifteen.
LORENA GUADALUPE PEÑA MENDOZA,
PRESIDENT.
GUILLERMO ANTONIO GALLEGOS NAVARRETE, ANA VILMA ALMASEZ DE ESCOBAR,
FIRST VICE PRESIDENT. SECOND VICE-PRESIDENT.
JOSÉ SERAFIN ORANTES RODRÍGUEZ, NORMAN NOEL QUIJANO GONZÁLEZ, THIRD VICE-PRESIDENT. FOURTH VICE-PRESIDENT.
SANTIAGO FLORES ALFARO, FIFTH VICE PRESIDENT.
GUILLERMO FRANCISCO MATA BENNETT, DAVID ERNESTO REYES MOLINA, FIRST SECRETARY. SECOND SECRETARY.
MARIO ALBERTO TENORIO GUERRERO, REYNALDO ANTONIO LÓPEZ CARDOZA, THIRD SECRETARY. FOURTH SECRETARY.
JACKELINE NOEMI RIVERA AVALOS, JORGE ALBERTO ESCOBAR BERNAL, FIFTH SECRETARY. SIXTH SECRETARY.
ABILIO ORESTES RODRÍGUEZ MENJÍVAR, JOSÉ FRANCISCO MERINO LÓPEZ, SEVENTH SECRETARY. EIGHTH SECRETARY.
CASA PRESIDENTIAL: San Salvador, six days of the month of January of the year two thousand sixteen.
PUBESQUIESE,
Salvador Sánchez Cerén, President of the Republic.
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Ramon Aristides Valencia Arana, Minister of Government and Territorial Development.
D. O. N ° 5
Took N ° 410 Date: January 8, 2016
SV/pch 11-02-2016
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