Dificultad probatoria del daño moral con efecto indemnizatorio: perspectivas legales, jurídicas y doctrinarias de sus elementos constitutivos

Abstract

The present titling work corresponding to the case study, is of civil matter and was initiated on March 9, 2017, by ordinary means, with N ° of cause: 07333-2017-00389, action of MORAL DAMAGE, followed by the gentlemen Alvarado Marín Darwin Rogel and Valarezo Aquino Ermelinda Isabel parents of the minor JAAV against the gentlemen Loayza Gladys teacher of the minor JAAV, Luis Aguilar director of the school "Efrén Reyes", Morocho Darwin, Reyes Elsa, Torres Mayra and Zambrano José these last parents of the children involved in the case and who are accused of having caused the injury in the left arm of the child JAAV. The main objective of this titling work is to identify the probative difficulty of moral damage on the part of the actors in the process, because they did not have enough evidence to prove to the judge the existence of the moral damage they alleged due to the injury that their son JAAV suffered in his left arm when he was at recess, and that resulted in the child's operation to implant an orthopedic nail. The methodology used in the preparation of this work was documentary research, applying the methods: deductive-inductive, analytical - synthetic, comparative, exegetical, under the modality of case analysis. As conclusions we established that, not having conclusive evidence to prove the existence of moral damage, the actors of the process should not seek pecuniary compensation for $ 20,000, because the parents of the minor did not justify the existence of the wrongful act which was relevant to verify the responsibility for the damage attributable to the defendant. Article 2232 of the Civil Code grants the affected person the power to bring an action for moral damages, stating further that the compensation will only occur as a result of unlawful acts and when the damage is the result of the unlawful act or omission of the defendant, this being not the case, since the facts narrated in the complaint and the evidentiary means presented by the plaintiff do not subsume to what is provided by the aforementioned article of the aforementioned legal body. Given this, in our capacity as authors of the work we recommend to those affected that they intend to bring an action for moral damages, gather enough evidence to prove the existence of the damage because, if they bring the action for moral damage and not it is proved the same, the judge will have no choice but to declare the demand unplayable, and much more, because it is an injury that affects the emotional and psychological state of the affected person, which is very difficult to prove and even more difficult , calculate the amount of compensation, because it is the violation of a personal right of the victims, not being so in cases where there is material or property damage, in these circumstances it is much easier to prove the existence of damage and claim compensation for deteriorated material goods.