Civil Compensation Research Articles

Criminalizing Civil Law Actions of Default into Criminal Acts of Fraud: A Human Rights Perspective

The terms "Default" and "Fraud" and/or “Embezzlement” are often interchanged without clarity of meaning in many discussion forums, both oral and written. This confusion can be seen from the many court decisions that acquit defendants from prosecution which have permanent legal force. The public often hears that law enforcers carry out criminalization, such as witnesses becoming suspects, suspects becoming defendants and so on by shifting the civil legal action of Default to criminal act of Fraud and/or Embezzlement. Using 'criminalization' and 'criminalized' in this article is considered inappropriate, so it has been replaced by 'criminalizing' and 'criminalized'. If there is an action to shift the civil legal act of Default into a criminal act of Fraud and/ or Embezzlement, so from a human rights perspective, it is against the law. By using normative legal research methods, this paper examines how to differentiate civil legal acts of Default from criminal acts of Fraud and/or Embezzlement, how to apply civil compensation in cases where there are already criminal legal remedies, and what is the legal and human rights perspective when criminalization occurs. This paper uses a statutory approach and a case approach. The results show: First, there is a real difference between civil legal acts of Default and criminal acts of Fraud and/ or Embezzlement; Second, the application of compensation can be carried out through criminal and civil procedural law mechanisms; Finally, criminalizing civil legal acts into criminal acts is a form of violation of human rights.

Comparing Procedural Safeguards during the Primary Investigation Stage and Civil Compensation: Beijing Rules vs. Jordanian Legislation in Juvenile Justice

This study critically evaluates the privacy protections and civil compensation afforded to delinquent juveniles under Jordanian Juvenile Law No. 32 of 2014, comparing them with the United Nations Beijing Rules of 1985. The analysis is structured into three key sections: identifying the authority responsible for juvenile investigations, assessing the level of confidentiality during these procedures, and examining the support mechanisms available to delinquent juveniles throughout the investigative phase. The findings reveal that both the domestic legal framework and international treaties fail to adequately prioritize the best interests and protection of delinquent juveniles. While each source of law possesses its own strengths and weaknesses, they collectively underscore the need for substantial reforms to enhance the rights, well-being, and civil compensation for delinquent juveniles more effectively.

Trauma‐informed lawyering in the context of civil claims for sexual violence

AbstractOver the last decade, there has been an increase in civil compensation claims for sexual violence in the United Kingdom (UK). Given that trauma‐informed approaches have been called for in relation to legal responses to sexual violence, we put forward seven key principles of trauma‐informed lawyering in this context and draw on interviews with UK‐based civil lawyers who represented sexual violence survivors to explore the extent to which trauma‐informed work is taking place. While we found that our sample of lawyers typically had a very good knowledge of sexual violence and the trauma that it can cause, there was less certainty about how to accommodate the impacts in practice. Moreover, there was a tendency to prioritize individual healing and medicalize a form of social injustice. We conclude by emphasizing the need for legal training and education on a trauma‐informed approach that accounts for the social and political dimensions of sexual violence and trauma.

Health damage caused as a result of adverse environmental impacts: civil compensation mechanisms

The subject of research in this article is the regulations and theoretical ideas about compensation for harm caused to a citizen’s health as a result of adverse environmental impacts. The purpose of the study is to create doctrinal conditions and develop proposals for the development of civil legislation aimed at ensuring compensation for harm caused by damage to health in the environmental sphere. As a result of the study, it was proved that in order to ensure real compensability of harm to health in the environmental sphere, the presumption of environmental danger of certain types of economic activity should be accompanied by the legal establishment of an irrefutable presumption of the origin of physical harm from adverse environmental impacts, based on available knowledge about the causes and symptoms of environmentally caused diseases (medical criterion), whether the victim belongs to a risk group based on living or working in the contaminated area (legal criterion). However, the author does not limit himself to justifying the need to introduce this presumption, but proposes a set of measures for the accompanying development of legislation. It is noted that the irrefutable presumption of the origin of physical harm from adverse environmental impacts must be accompanied by the establishment of an obligation of business entities to create conditions for the implementation of non-tort forms of compensation, alternative to insurance compensation within the framework of liability insurance. In this capacity, agreements on the distribution of risks can act, the terms of which provide for the creation of a quasi-insurance public benefit fund, payments from which will repay obligations to victims in an amount that allows taking into account the loss of ability to do paid work, the need for outside care, etc.

Civil compensation, we will make Russia pay. Ukrainian judicial practice and possible ways to overcome the problem

Civil compensation, we will make Russia pay. Ukrainian judicial practice and possible ways to overcome the problem

DOCTOR'S LEGAL RESPONSIBILITY FOR UNLAWFUL ACTIONS AGAINST MEDICAL ACTION ERRORS

This study analyzed the responsibility of a doctor who commits an unlawful act when giving a medical error to his patient. This study examined how a doctor's action qualifies as an unlawful act in a medical action error and the doctor's legal responsibility in a medical action error from a civil, criminal, and administrative perspective. Metode This research is a doctrinal legal research, with a statute approach and an analytical approach. The results of the study showed that an unlawful act occurs when a doctor performs a medical action contrary to law, or contrary to medical science, and the medical action does not get the patient's consent. Medical action errors are seen from the perspective of civil law from two theories, namely breach of contract (default) and negligence, as well as from the perspective of criminal law in committing a medical action error. Generally, errors can be defined by the intent (dolus/opzet) and negligence/omissions (culpa) that are also considered elements of not meeting medical professional standards, service standards, and standard operating procedures. Then the perspective of administrative law; Judging from administrative violations committed by doctors, this legal violation can be seen from administrative violations regarding the authority to practice medicine and administrative violations regarding medical services. Based on Law 36 of 2009 concerning health, namely in the form of granting rights to victims of malpractice to hold doctors responsible for medical malpractice, in order to compensate for loss caused by doctor's errors or negligence, civil compensation claims may be filed or combined criminal prosecutions pursued. Additionally, the Indonesian Medical Discipline Honorary Council (MKDKI) may issue decisions imposing disciplinary sanctions on doctors who are proven guilty, allowing the council to make compensation claims in criminal proceedings before the court.

Judicial application and perfection of commercial bribery of Transnational Corporations in China

With the wave of economic globalization, the problem of commercial bribery of multinational companies, who play an important role in the international market, has gradually become a global problem. The commercial bribery of transnational corporations is harmful to the market order of fair competition in China. Therefore, China should severely crack down on the commercial bribery of multinational companies. Judging from the current judicial situation, there are still many shortcomings in anti-commercial bribery of transnational corporations. This paper will use empirical analysis to study these problems. This article will start with the GlaxoSmithKline case, introduce the current judicial interpretation in China, point out the shortcomings of the legal system, the applicable object, the jurisdictional conflict, and the actual situation of law enforcement. Then, the paper will further analyze the reasons for the shortcomings of the applicable object, the jurisdictional conflict, and the intersection of justice and civil justice. Based on this, these measures should be taken including expanding the scope of application and the scope of jurisdiction, adding a civil compensation system, and strengthening international cooperation.

Big Data Analysis Report on Trial of Obstetrics and Gynecology Medical Damage Liability Dispute Cases in China from 2017 to 2021

Objective: To analyze the data of the trial cases of medical damage liability disputes in obstetrics and gynecology from 2017 to 2021, with a clear understanding of Chinese medical damage liability disputes. Methods: The data of medical damage liability dispute cases in obstetrics and gynecology during 2017-2021 were collected and analyzed. The analysis directions included (1) The trial types of civil litigation cases in each year; (2) Annual distribution of civil litigation cases in obstetrics and gynecology in an annual year basis; (3) Distribution of the amount of the subject matter and the amount of civil compensation; (4) The geographical distribution of litigation cases; (5) Characteristics of the medical institution as defendant; (6) Distribution of litigation departments in medical institutions; (7) Common causes of action in obstetrics and gynecology cases; (8) Results of common injuries in obstetrics and gynecology cases; (9) Court confirmation of disputes over medical records. Results: According to the data analysis results, the distribution of litigation trial types, annual distribution, compensation amount distribution, regional distribution and other basic data were obtained, and based on the analysis of the characteristics of medical institutions, department distribution, causes of litigation, damage structure and court recognition results were systematically discussed. Conclusion: Although the liability disputes for medical damage in obstetrics and gynecology have been declining in recent years, the problems in medical treatment and management can not be ignored. Attention should be paid to them and medical problems should be avoided.

Risk-preparedness mechanism and audit quality: Evidence from mandatory increase of professional indemnity insurance and professional risk fund

We examine the risk-preparing benefits of Chinese audit firms’ professional indemnity insurance (PII) and professional risk fund (PRF) by using the Notice on Adjusting the Application Requirement of Audit Firms for Securities Qualifications as an exogenous shock. This policy requires audit firms to raise the sum of the cumulative compensation limit of their PII and PRF from 6 million to 80 million yuan. It is found, first, that the capital market regards this policy revision as a signal to strengthen investor protection and responds positively; client firms with high audit risks have a stronger response. Second, auditors’ governance of financial information has strengthened, resulting in the significant improvement of their clients’ financial reporting quality, with a stronger effect on firms with higher earnings management risk. There is no evidence that audit firms pass the costs on to their clients. Finally, the mismatch between auditors and new client firms is alleviated. We show that in an emerging market with weak investor protection, establishing a sound risk-preparedness mechanism for audit firms and strengthening the capacity for civil compensation ex post greatly improve the adaptive degree between international auditing standards and the legal environment of China, thereby enhancing the overall service quality of the audit market.

Breaking the Silence: An Islamic Legal Approach to Facilitating Reporting and Testimony by Muslim Victims and Witnesses of Sexual Crimes

Many Muslims hold the doctrine of the legal schools (madhāhib) in high esteem. As such, the schools’ approaches to rape and sexual assault may impact the behaviour of Muslim victims and witnesses. Through an examination of the legal rules that regulate rape and sexual assault in fiqh and fatwā works associated with the four Sunni schools and Ibn Ḥazm, I aim to determine whether the relevant rules may interfere with the willingness of Muslim victims and witnesses to report or testify to sexual crimes. I argue that although the jurists’ prosecution of sexual assault as a discretionary offence (taʿzīr) is compatible with reporting and testimony, their prosecution of rape as coerced illicit intercourse (zinā), usurpation (ghaṣb), or banditry (ḥirāba) silences victims and witnesses. Further, rules related to financial compensation do not encourage victims to come forward. Reclassifying rape as a discretionary offence would better promote reporting and testimony by victims and witnesses. The central role of ijtihād in creating the historical rules on rape, the jurists’ intent behind those rules, and modern knowledge regarding the reality of rape support this reclassification. Fully resolving issues related to civil compensation is difficult without broader reforms of Islamic tort law.

Investment Manager Legal Liability for Mutual Fund Losses Associated with Disgorgement Fund for Investor Protection

In managing investors' funds, sometimes investment managers often make mistakes or commit crimes that cause losses for investors. Accountability given by investment managers is often unable to meet the demands given and this is what causes a lack of legal protection for investors. Based on the results of the analysis carried out, the results obtained, first the current investment manager can provide a form of criminal and civil liability. Second, the role of the Disgorgement fund works more effectively than filing a lawsuit for civil compensation to the court or outside the court, which is more difficult to prove and the implementation process. Third, although the presence of the Disgorgement fund has several advantages over other legal protections, this cannot be separated from the drawbacks in the application of the disgorgement fund as well.

의료과실에 있어 형사책임의 한정기준

It would not be an exaggeration to say that medical accidents occur every day. Medical officials are complaining about the subject of criminal punishment for such medical accidents. Although it will be unfair in many ways from the perspective of the victim who suffered a medical accident, the increase in criminal punishment for medical accidents will be very burdensome for medical workers. Regarding the increase in criminal punishment for such medical accidents, the medical community continues to point out the unfairness. Regarding criminal punishment for such medical accidents, in Japan, there were also questions about the application of occupational negligence to doctors (the first leaflet of Article 211 of the Japanese Criminal Act) in the wake of the Fukushima Prefectural Ono Hospital incident in 2004. The main reasons for this are that criminal punishment is not necessarily effective in improving doctors' medical technology, securing medical safety, preventing recurrence, and shrinking medical practices due to the imposition of criminal punishment. Meanwhile, in Germany Jürgens is also pointing out the expansion of criminal punishment for medical personnel. Relief for crime victims is also possible by civil compensation and administrative punishment, but in terms of illegality and accountability, criminal trials should be made and appropriate punishment should be made. However, it seems necessary to consider the specificity of medical practice, consider the disadvantages of criminal punishment for medical personnel, and consider them in various aspects in relation to the scope of negligence. Therefore, in this paper, the contents of discussions in Germany and Japan regarding the limitation of criminal responsibility of doctors were reviewed, and the criteria for limiting criminal responsibility for reasonable medical personnel were reviewed.

Procedencia de revocatoria de la revocatoria por condicionalidad de la pena ante incumplimiento de reparación civil como regla de conducta

The influence of the revocation of the suspended sentence for non-payment of civil compensation as a rule of conduct was investigated on the convicted person, his family and the State. To verify the research hypothesis, a sample made up of resolutions of revocation of the suspended sentence issued, in 2018 and 2019, by the Trujillo Preparatory Investigation Judges was chosen; the Executive Report on the Support of the 2019 Budget, of the Justice and Human Rights Sector; the report on the penitentiary population (POPE) and penitentiary establishments 2017 -2018; and, as a complement, a survey of 100 lawyers in criminal matters from Trujillo regarding the subject of study, in addition, the legal provisions issued in 2020 were analyzed. To collect data, the techniques of documentary analysis and the survey were used, which were organized and processed statistically, to later be presented in tables and statistical figures, for discussion with the general and particular methods of science. It was concluded that: the revocation of the revocation of the suspended sentence for non-compliance with the payment of civil damages as a rule of conduct, has a direct positive influence on the sentenced person, and indirectly on his family and the State.

A quantitative liability risk assessment of oil spills in oil ports: the case of the Guangdong-Hong Kong-Macao Greater Bay Area

ABSTRACT To mitigate risk and enhance safety in oil ports, this study proposes a method to analyse the civil liability risk and criminal liability risk of oil spills in oil ports. Based on scenario analysis and data analysis, the probability, spill size, number of casualties, actual compensation and total spill cost are estimated for different scenarios, including loading arm/hose rupture and hull failure when a vessel is berthing, manoeuvring near a berth and moving through the port. Based on these estimated factors and legal liability, the civil liability risk and criminal liability risk borne by oil ports and ship owners are estimated. Finally, data from an oil terminal in the Guangdong-Hong Kong-Macao Greater Bay Area are used to verify the applicability of the proposed method. The estimated probability and corresponding consequences can be used to determine which scenario would result in criminal liability and provide a reference for emergency capacity planning. The estimated risks are useful for loss mitigation and crime prevention. The findings and analysis reveal the current low compensation ratio and the inconsistency in criminal standards for oil spills in China. Therefore, the enforcement of civil compensation and unity among criminal standards should be prioritized.

4. International / Civil Liability and Compensation

4. International / Civil Liability and Compensation

Do professional risk funds affect audit quality?

In China, audit firms are required to maintain ‘professional risk funds’. These funds can be used only to pay civil compensation caused by deliberate or gross negligence in auditing activities. Using Chinese data from this peculiar regulatory characteristic, we investigate the impact of audit firms’ professional risk funds on audit quality. We find that the higher the audit firms’ professional risk funds, the lower the discretionary accruals. This finding is more pronounced for client firms with higher information asymmetry or weaker corporate governance. Further tests indicate that the higher the professional risk funds, the greater the audit effort invested in the auditing process, while audit fees do not change significantly. Our results suggest that higher professional risk funds ultimately improve audit quality by increasing audit effort.

Child sexual abuse in religious institutions: A comparative study based on sentences in Spain

Child sexual abuse is a global problem that has several physical and psychological health implications for the victims. This study aimed to analyse the way criminal courts respond to allegations of child sexual abuse in religious institutions in Spain compared with cases of abuse committed in other institutional contexts. The sample is composed of 97 abusers from three institutional settings (religious institutions, educational centres, sports centres), responsible for a total of 335 child sexual abuse victims. Some of the results are similar to those found in other countries regarding the sex and age of the victims. There is a predominance of abuse involving bodily contact but without penetration, the abusers’ profiles are diverse, high exposure to minors was paramount as a risk factor, and there is a higher prevalence of diocesan priest abusers compared with members of religious orders. Significant differences were found between the three institutional groups (that is, religious, educational, and sports) in terms of penalties and civil compensation orders imposed on the abusers. The criminal courts consider sexual abuse committed by religious leaders to be a more severe form of the crime compared with abuse committed in other environments. Our study also revealed that several factors substantially influence the criminal courts’ response (for example, proven psychological harm, continuing crime, and the act of penetration), resulting in longer prison sentences and higher civil compensation. The practical implications of these findings are discussed.

Due Diligence and Environmental Damages Under Rome II

Within the European Union, the Rome II Regulation determines the applicable law on cross-border matters of non-contractual nature. The paper examines the applicable law on environmental-related tort claims against European multi-national companies utilizing production facilities in third countries, either based on active misconduct or on alleged omission of environment-related due diligence. As these types of claims are an expression of misconduct by multinational corporations conducting business abroad, particular notice will be given to the applicable law on compensation claims for environmental damages allegedly caused by negligent compliance for environmental standards of either independent or subsidiary production facilities. While doing so, its main point of interest will be whether claims against European-based companies may be governed by the law of the effective seat of the latter. Considering that Article 7 Rome II provides for a special connecting factor regarding environmental damages, the paper examines whether Rome II does justice for due diligence-related cases on the conflict of laws level and argues for a nuanced approach to localize the place of the event giving rise to such damages. Private International Law, Environmental Damages, Civil Compensation, Torts, Corporate Social Responsibility, Rome II, Mandatory Rules, Public policy

KAJIAN TERHADAP RENCANA PENGATURAN DISGORGEMENT DALAM PASAR MODAL INDONESIA

Various kind of capital market violations show the characteristics of capital market violations that the loss is rarely realized by the investor. Currently, the regulation provides a way to resolve investor loss of capital market and the practice of resolving violations of the law in the capital market through the investor protection regulation is sometimes not satisfactory for the harmed investors. As a step to strengthen the law enforcement instruments, the Financial Services Authority (Otoritas Jasa Keuangan / OJK) issued a Draft Regulation (RPOJK) on OJK regarding Disgorgement and Disgorgement Fund to facilitate investor’s legal protection against losses internally by itself. The purpose is to analyze the disgorgement mechanism regulation plan through the study of RPOJK so that it can be applied as a new settlement in the capital market and suitable with existing ways. The research method uses a normative juridical approach that is through the existing study of the rule of law that apply primary, secondary and tertiary legal materials, also from existing electronic literature. Based on the result of the study, it is concluded the plan of the disgorgement mechanism regulation as a form of refund through administrative mechanism is different from civil compensation and it can be applied as one of the investor’s legal protections because the form of the order in disgorgement as a refund is considered effective, proportional and can be preventive.

Legal responsibility upon the negligence of entrepreneurs in registering their labors as the member of BPJS ketenagakerjaan

Government have mandated the entrepreneurs to register their labors as the member of BPJS Ketenagakerjaan in accordance to the Law Number 24 Year 2011 regarding ‘Badan Penyelenggara Jaminan Sosial’ (BPJS)/ UU BPJS. In fact, Many labors are not registered. In Kabupaten Bekasi, 30 percents of the total labors are not registered. This research tries to examine the legal consequences upon the negligence of the entrepreneurs in Kabupaten Bekasi in registering their labors as the member of BPJS Ketenagakerjaan. This research also aims to examine the legal responsibility of the entrepreneurs in Kabupaten Bekasi towards their unregistered labors. The research methodology is Normative-Empirical Legal Research. The result shows that the legal consequences of the negligence of the entrepreneurs in Kabupaten Bekasi in registering their labor to BPJS Ketenagakerjaan is that the entrepreneurs could be punished with administrative sanction such as written reprimand, fine, and or prohibitation to access a certain public service. Meanwhile, legal responsibility of the entrepreneurs in Kabupaten Bekasi towards their labor appears in form of civil compensation. In case the dispute would be settled in Industrial Court, then the judges could sentenced the entrepreneurs to register their labor as the member of BPJS Ketenagakerjaan. DOI: https://doi.org/10.26905/idjch.v11i2. 4042.