Positions of the courts of the first and appellate instances: according to the verdict of the local court PERSON_2, who was a minor, was found guilty and sentenced under Part 2 of Art. 286 of the Criminal Code. By the same verdict, the civil suit of the victim PERSON_1 was partially satisfied and UAH 52,755.73 was collected from the insurance company in his favor as compensation for material damage and UAH 2,504.14 as compensation for moral damage. Also, 1,000 hryvnias were collected from PERSON_2 in favor of PERSON_1 as compensation for material damage and 50,000 hryvnias as compensation for moral damage.
The appellate court left the said verdict of the local court unchanged.
In the cassation complaint, the representative of the civil defendant notes that the local court had no legal grounds for collecting material and moral damages from the insurance company in favor of the victim, since in this criminal proceeding the road accident is not an insured event, given the fact that the convicted PERSON_2 was driving the car , who did not have legal grounds to operate a vehicle (under 18 years of age and did not have a driver's license). In addition, the lawyer of the insurance company draws attention to the provisions of the policy, according to which the insurer's obligations are limited to damage caused by specific persons specified in the policy, and not to any persons driving the vehicle. According to the defense counsel, given that the liability of the accused is not insured by this policy, the insurance company's obligation to compensate the victim has not occurred.
The position of the CCS: the decision of the courts of previous instances was left unchanged.
Justification of the position of the CCS: the panel of judges of the CCS recognized as unfounded the arguments in the cassation complaint of the representative of the civil defendant in view of the following.
According to the panel of judges of the CCS, the concepts of the owner of the vehicle and its operator (a person who has the right to use it as a driver according to traffic rules) should be distinguished. At the same time, "lawful operation of a vehicle" is the right of a person who has a driver's license or other document established by law to operate a vehicle, while "lawful possession of a vehicle" gives a person only the rights to own a vehicle as a thing, but in the absence of in possession of a driver's license or other document established by law, such a person does not have the right to operate a car.
The legality of ownership of property arises on the basis of a certain legal fact, in particular, the conclusion of the relevant contract. Such an agreement can be concluded either verbally or in writing. If the owner of the property hands over certain property to another person voluntarily, but without the corresponding written form of contractual relations (except for cases where the law establishes a mandatory written form of such a transaction), then, according to the general rule, it is considered that the owner has lawfully transferred the property into the possession of another person persons The actual transfer of the vehicle together with the registration document for this vehicle is a legitimate way of acquiring ownership by such a person (the actual owner) of the vehicle acquired in this way. Such ownership will be considered legitimate even in the absence of any documents issued on behalf of the owner (mandate, contract, etc.), until the contrary is established by the court or the will of the owner changes, who has the right to demand the return of his own thing from the owner.
Therefore, the Supreme Court emphasizes that the owner of a vehicle can be any legally competent natural person who has the right to exercise any powers regarding such a vehicle that are not directly prohibited by law.
However, the operation of a vehicle is in the sphere of regulation of the norms of public law, as it concerns the rights of an undefined circle of individuals and society and the state as a whole, and is possible due to the presence of a certain permission from the state. The legality of owning a vehicle does not exclude the illegality of its operation. These two categories are used by different branches of legislation and have different legal purposes. Operation is assessed in the field of traffic, regulated by public law. Instead, possession is assessed according to the general rules of civil law, based on the presumption of legitimacy of any actual possession.
In the case under review, no circumstances have been established that PERSON_2 illegally owned the vehicle involved in the accident. In addition, the side of the civil defendant, the insurance company, did not submit evidence to the court that PERSON_2 illegally owned the vehicle.
Transfer by the owner of a vehicle to another person in violation of public law norms, in particular, to a person who does not have a driver's license for the right to drive a vehicle of the corresponding category, cannot be considered illegal possession, given the presence of a certain will of the owner of the vehicle. In such a case, there is illegal operation of a vehicle by a person, which is not the same as illegal possession of a vehicle by a person, and therefore, in the sense of Clause 1.6 of Art. 1 of the Law of Ukraine "On Compulsory Civil Liability Insurance of Land Vehicle Owners" a person cannot be considered as one whose liability is not insured.
Taking into account the above, the Court came to the conclusion that in case of damage to third parties during an accident by a person who legally owns the insured vehicle, but does not have a license to drive a vehicle of the corresponding category, such a case is insured and, as a result, in the insurer is obliged to make an insurance payment under the contract of compulsory civil liability insurance of the owner of a land vehicle.
Satisfying the claim, the courts of previous instances, establishing that as a result of the road accident, the victim suffered material and moral damage, the road accident was caused by the fault of a minor who did not have a license to drive a vehicle and was driving the vehicle, the civil liability is related to the operation which is insured by the defendant, came to the correct conclusion that such an event is an insured event and the defendant has an obligation to compensate the victim for the damage caused to his health and property.
You can read more about the text of the resolution of the Supreme Court of November 11, 2021 in case No. 185/5823/20 (proceedings No. 51-2086км21) at the link https://reyestr.court.gov.ua/Review/101309428 .