Towards a New Theoretical Concept of Sanction and Legal Responsibility in the Case of Causing Damage

Abstract

H. Kelsen wrote: The legal duty of an individual to make good the pecuniary or non-pecuniary damage which he or someone else caused to another person is frequently regarded as a sanction, and therefore this duty is denoted as responsibility. This construct confuses the concepts of duty, responsibility and sanction. In an attempt to solve the foregoing problem I examined whether the traditional assigning of the meaning of civil law sanction to the duty of reparation is justifiable. By analyzing two theoretical concepts (Kelsen's and Dika's), I established that the breach of the duty not to cause damage results in the creation of a new legal duty (the duty of reparation) and that only the breach of the duty of reparation by its non-fulfilment constitutes a wrong which then gives rise to the need to impose a sanction in the form of forced replacement of the missing voluntary fulfilment of the duty by means of execution. Furthermore, on the basis of the previously identified essential characteristics of the concept of legal responsibility, I analyzed the conventional concept of responsibility for damage as legal responsibility in the case of causing damage. I concluded that the concept of responsibility for damage as conventionally defined does not have a single essential characteristic of the general concept of legal responsibility and that, consequently, it may not be regarded as a kind of legal responsibility but only as a legal relationship of damage reparation. Thus, following the established basic characteristics of the concept of legal responsibility, the thesis on the means of execution as a kind of civil law sanction, and a special mechanism by which civil law reacts to breaches of legal duties, I defined legal responsibility in the case of causing damage (in the normative sense) as a legal position of liability to means of execution (sanction) of a person who has not voluntarily fulfilled his/her duty of reparation (wrong).