Civil Wrongs Research Articles

The application of the Constitution of Ukraine during the settlement of civil and economic cases in terms of compensation for property damage in the case of decisions on exemption from criminal liability on the basis of Art. 49 of the Criminal Code of Ukraine

It is pointed out, the erroneous application by the courts of the economic and civil links as evidence of the decision of the criminal court to close the criminal proceedings in connection with the expiration of the terms of bringing to criminal responsibility, as a non-rehabilitating circumstance during the establishment of property damage in the resolution of relevant disputes. The author notes that, from the available access to court decisions and their analysis, it is clear that when considering cases related to the compensation of property damage, not every court provides a correct assessment of the legal nature of the closure of criminal proceedings, which leads to the incorrect application of the requirements of procedural legislation in terms of the adoption and evaluation of evidence. The article examines the problematic issue of the application of the practice of Ukrainian civil and commercial courts in resolving issues of compensation for property damage in the presence of a decision to release a person from criminal liability due to the expiration of the statute of limitations (in particular, the decision of the Supreme Court of Ukraine), as well as theoretical aspects related to this issue with reference to the norms of the Constitution of Ukraine and the Convention on the Protection of Human Rights and Fundamental Freedoms. According to court practice, in Ukraine, the expiration of the statute of limitations in a criminal case does not automatically mean the absence of civil liability for the offense committed. In cases where a person has been acquitted in criminal proceedings due to the expiration of the statute of limitations, there may still be grounds to seek civil damages for property damage. Ukrainian courts may take into account such factors as the nature of the offense, the amount of damage caused and the evidence provided when determining liability for compensation in civil cases. Civil proceedings in this case should be separate from the criminal case with the need to focus on legal responsibility for the property damage caused in the presence of relevant admissible evidence submitted by the party in the case. As of today, it is extremely important to effectively navigate the peculiarities of such cases and to achieve the correct interpretation of evidence in cases of potential compensation for property damage in civil proceedings.

Impact of the amended Chinese Marine Environmental Protection Law on the law enforcement action of the Coast Guard — With a focus on the discharge of ballast water after Japan’s releasing of nuclear wastewater into the sea

After Japan released nuclear wastewater into the Pacific Ocean, China amended and promulgated the Marine Environmental Protection Law (MEPL) on October 24, 2023. The 2023 MEPL grants the Coast Guard extraterritorial jurisdiction over marine environmental protection. Meanwhile, it removes the content related to immunity for the disposal of radioactive substances and strictly prohibits the discharge of such substances into the sea. It is suggested that the 2023 MEPL will impact Coast Guard law enforcement actions, particularly in cases involving the punishment of marine pollution caused by nuclear wastewater. Additionally, China's Civil Procedure Law on jurisdiction over foreign-related infringement cases was also amended in 2023. Chinese courts have gained broader jurisdiction in foreign-related tort cases. As a result, Japanese parties will face the risk of civil damage compensation litigation due to the disposal of nuclear wastewater.

Targeting Russian Oil Refineries

Abstract In March 2024, Ukraine significantly intensified its assaults on Russian energy infrastructures, deploying a multitude of long-range drones to hit Russia’s largest refineries. This led to a temporary halt in production at several of these facilities. The primary objective of these assaults was to diminish Russia’s military capacity. On the other hand, these actions inflicted damage on the Russian economy. Targeting refineries and oil depots has emerged as a contentious issue. The classification of refineries and oil depots as military objectives is legally not precise. These facilities are seen as essential infrastructure for the nation’s economy and machinery of war. Targeting oil depots or works and installations containing dangerous forces during an international armed conflict could result in significant environmental damage, raising questions about the principles of military necessity, distinction and proportionality. An attack must not cause excessive incidental civilian damage relative to the concrete and direct military advantage anticipated. This essay will explore the legal issues regarding targeting refineries and oil depots and a comprehensive analysis of the situation within the framework of International Humanitarian Law.

It's Something Personal: On Relationally of Duty and Civil Wrongs

It's Something Personal: On Relationally of Duty and Civil Wrongs

저작재산권의 보호기간이 만료된 저작물의 저작인격권에 관한 쟁점

Recently, as the copyright protection period of famous characters who have been loved and popular around the world has expired, anyone can use them freely. For example, as the copyright of the character “Winnie-the-Pooh”expired in 2022, a startup film company created a low-budget film called “Winnie-the-Poo: Blood and Honey”, transforming the cute and friendly Pooh into the wild killer bear. As can be seen in this case, even if the first character is changed to the opposite to the extent that it undermines the reputation of the author, it is not possible to claim copyright infringement because the copyright protection period has already expired. However, if malicious distortions or variations that can continue to undermine the author's personal interests after the expiration of the copyright protection period are left unprotected, it may confuse the general public's trust in the character's unique character that the original work has held for more than decades, so it is necessary to consider ways to prevent it.
 Author’s Moral Right is inalienable, and in comparative law, each French and Chinese IP-related Act legislates that moral right is permanently maintained, but Korea does not have such a legislation as to the protection period of moral right.
 In this study, the possibility of civil damages or criminal punishment for moral right infringement after author’s death, especially the current copyright law stipulates offense indictable without complaint in relation to criminal punishment for violations against moral right after author’s death, and it is proposed to revise to delete offense indictable without complaint under the copyright law by comparing it with the crime of defamation of a deceased person under the criminal law.

Vonnisbespreking: Die jongste “gly-en-val” uitspraak teen ’n winkeleienaar: ’n ontkenning van die Chartaprops-verweer?

Abstract The most recent “slip-and-trip” judgment against a shop owner: A denial of the Chartaprops defence? In 1991, in Langley Fox Building Partnership (Pty) Ltd v De Valence, the Supreme Court of Appeal held that the employer of an independent contractor is not liable for the delicts of the employees of the latter, unless the conduct of the employer or his or her employees had also conformed to the requirements for delictual liability. Notwithstanding, courts have since then not always followed that important judgment, particularly in claims arising from injuries sustained by shoppers who tripped and fell on slippery floors in shopping malls and supermarkets, where shop owners and/or managers had engaged independent cleaning firms to keep floors clean and safe (e.g. Probst v Pick ’n Pay Retailers (Pty) Ltd handed down by the full Johannesburg High Court in 1998). However, in 2009 the Supreme Court of Appeal held that it would be a valid defence for a shop or mall owner or manager to plead that an independent contractor had been appointed for floor cleaning, and that the latter would normally be delictually liable where a shopper had sustained injuries, effectively confirming Langley Fox. In the case under discussion, the plaintiff slipped and fell on a slippery patch in one aisle of the defendant’s supermarket. The court approached delictual liability by applying the res ipsa loquitur maxim on the authority of Probst. Consequently, an inference of negligence on the defendant’s part, following by applying the maxim, was established. The court ultimately decided that the defendant had failed to rebut such inference and also that no negligence had been established on the plaintiff’s part. Notwithstanding its reference to the “Chartaprops defence”, the court did not apply it properly and consequently held the defendant liable. At no point did the court enquire about the possible negligence of the independent contractor’s employees, although the facts overwhelmingly point towards such a probability. The reason for this omission is probably to be found because the court ordered the independent contractor to indemnify the defendant in terms of an indemnity clause in their cleaning service agreement. As a result, the effect of this judgment is that the pre-Chartaprops legal approach to “slip-and-trip” cases – in terms of which a shop owner could incur delictual liability for the civil wrongs of an independent contractor’s employees as if they were his employees – was reinstated. One can fully agree with the court that a reasonable person in the defendant’s position would have foreseen the type of damage that had occurred in casu, and would have taken reasonable steps to avoid such harm. However, the court’s finding that the steps taken by the defendant in appointing a cleaning service contractor had been ineffective, does not necessarily imply that those steps had been inadequate, considering the surrounding facts and circumstances. Keywords: foreseeability; independent contractor; legal duty; omission; negligence; shop floor; shop owner; shop manager; “slip and trip” injury; spillage; wrongfulness

Haunted trials: Law and memory in post-Apartheid South Africa

When the brutal apartheid system ended in 1994, much of the world celebrated a remarkable and hope-filled transition. While many South Africans felt this hope as well, many still retained scars from the period’s brutal history. Some eschewed formal venues, others utilized the 1996-1998 Truth and Reconciliation Commission (TRC) to seek humanity in their loved ones’ killers or to critique a perceived lack of humanity. A small, yet steadily increasing, number turned to contemporary courts to seek civil damages against their loved ones’ killers. Most prominently, the families of Neil Aggett and Ahmed Timol sought to bring charges against the police officers found culpable in their loved ones’ deaths. This article attempts to present an early analysis of the experiences of families who sought various means of legal restitution for apartheid’s horrors. While this particular search for humanity after atrocity remains ongoing, the article attempts to tap into the “ubuntu fatigue” that South Africans increasingly feel to ask what they might accomplish, and what might need to happen beyond them in order for families to continue their search for humanity after atrocity.

Access to justice for war victims in Ukraine

The ongoing war in Ukraine is a test for rule and law and justice. Mass atrocities and scale of destruction during the full-scale phase of armed aggression against Ukraine inevitably bring up the issue of a real embodiment of the rule of law. The article examines the issue of access to justice as one of the necessary elements of the rule of law with particular attention to the access to justice for victims of war in Ukraine. The author emphasizes that the concept of access to justice has been developed in the English-speaking environment, where «fairness in the way people are dealt with» and «the system of laws in a country that judges and punishes people» are denoted by the same word – justice. This fact explains the attractiveness of «access to justice» as a catchphrase. The concept of access to justice is perceived primarily as an important element of the rule of law which enables individuals to protect themselves against infringements of their rights and to remedy civil wrongs and not just access to a court as an institution. Considering the role of the judiciary to apply the law in accordance with an appropriate, that is to say, sufficiently transparent and predictable, interpretative methodology, the author concludes that the absence or inconsistency of terminology used in normative acts can be considered as one of the indicative examples of regulatory obstacles to access to justice. Thus, the use and correlation of the concepts (and hence the terms) «victim» (zhertva), «injured person» (postrazhdala osoba) and «victim (in criminal proceedings)» (poterpilyi) has been analyzed – both in national legislation and in translations of international treaties valid for Ukraine, where the concept of victim is used. In addition to regulatory ones, there may also be institutional obstacles, i.e., the criminal justice system traditionally pays more attention to the rights of the accused than to the victim of a crime. Both types of obstacles (regulatory and institutional) acting cumulatively may lead, i.e., to secondary victimization in the treatment of vulnerable victims and witnesses. It is emphasized that in the conditions of full-scale armed aggression against Ukraine, the approach of national courts is undergoing changes. There is a tendency of Ukrainian judiciary to be more victim-oriented in criminal as well as civil cases. Analysis of verdicts concerning Art. 438 of the Criminal Code of Ukraine (CCU) (violation of the laws and customs of war) issued after the beginning of the full-scale invasion and available in the State registry of court decisions shows that the courts take into account the vulnerability of the victims, explicitly mentioning it in the verdicts. Considering a civil case filed by a widow of a military serviceman who died during a combat mission in 2014 in the Luhansk region (who acts in her own interests and in the interests of minor children) against the Russian Federation, the Supreme Court ruled that Ukrainian courts have the right to ignore the immunity of Russian Federation and consider civil cases of compensation for damage caused to an individual as a result of armed aggression of the Russian Federation. Key words: access to justice, rule of law, victim, war crimes, gender-based violence, vulnerable persons, victims of war, reparations.

Transversal Harm and Zemiology: Reconsidering Green Criminology and Mineral Extractivism in Cerro de Pasco, Peru

Green criminology has been advancing a focus on environmental crimes and harms. Extending this inquiry into avoidable and avertable environmental harms is a key function of both green criminology and zemiology. However, while the former seeks to expand regulatory frameworks, the latter contains within it the potential for a more holistic reimagining of the social world. Based on a methodology that combines qualitative methods (key informant interviews), a zemiological analysis, and the political ecology of Felix Guattari, we present a reconceptualization of harm inflicted by mineral extractivism in Peru’s Cerro de Pasco. The analysis utilizes the concept of transversal harm, which allows us to move beyond the criminal and civil damage of corporate crime and negligence, and to capture the collective and continuous impact of mineral extractivism. A discussion of transversal harm as a potential new avenue for expanding the conceptual boundaries of studying environmental harm concludes the article.

Calculation of Civil Damage Compensation for Data Monopoly

Calculation of Civil Damage Compensation for Data Monopoly

Legal issues and peculiarities of risk minimisation in recovery of civil damages incurred by a consumer subsequent to the supply of electricity of improper quality

The legislation concerning Electric Power Industry does not directly stipulate for statement of obligations or liability of the supplier for the delivered electric utility of inadequate quality. At the same time, it does not limit the application of civil law regulations, including the regulation on the buyer’s right to demand a proportionate reduction in the purchase price of goods purchased of improper quality, enshrined in paragraph 1 of Article 475 of the Civil Code of the Russian Federation.

Giving the Fourth Amendment Meaning: Creating an Adversarial Warrant Proceeding to Protect From Unreasonable Searches and Seizures

For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or even eviscerated by the Supreme Court. Some suggest that in order to revitalize the Fourth Amendment, the United States should make it easier to secure civil damages after Fourth Amendment rights have been violated. Others have argued that the United States must guarantee stronger ex ante protections to uphold fundamental privacy rights before they are violated. This Note argues that, while warrant requirements do need to be more stringent to safeguard Fourth Amendment rights, warrant requirements cannot on their own sufficiently protect such a sacred right. This Note proposes the adoption of adversarial warrant proceedings, designed to ensure police and prosecutors meet their probable cause burden and to ensure that any lies or sloppy investigative work are rooted out from a warrant application before a warrant is granted. False searches and arrests can be deeply traumatizing and have excruciating and long-term impacts. For the Fourth Amendment to have any meaningful affect, the People must have an advocate—a Warrants Counsel— fighting for their right to be free from unreasonable searches before that right is violated. The Roberts Court’s destruction of the Fourth Amendment leaves little reason to expect protection from unreasonable search and seizure through litigation. Instead, Congress must create the Warrants Counsel program legislatively. Congress should look to the major success of the Federal Defenders program as a blueprint for zealous advocacy and protection of rights. A Warrants Counsel, like a public defender, would be a government paid attorney, present to argue against probable cause before a magistrate whenever police or prosecutors seek a warrant. Like the Sixth Amendment before the public defender system, the Fourth Amendment desperately needs some structure to give its language meaning; the Warrants Counsel system would counterbalance over-powered police and prosecutors in favor of the People.

Transversal Harm, Regulation, and the Tolerance of Oil Disasters

AbstractLaw – through regulation, criminalization and litigation – provides key mechanisms for mitigating the harmful effects of oil disasters. At the same time, these mechanisms also enable the perpetuation of oil disasters under an extractivist imperative. This disaster tolerance is the point of departure for this article's examination of the legal response to the 2010 Deepwater Horizon disaster over the last decade. Based on a methodology that combines a social harm approach with the political ecology of Felix Guattari, we firstly present a reconceptualization of harm inflicted by oil corporations across three registers: environment, society, and subjectivity. We subsequently introduce the concept of transversal harm, which allows us to move beyond the criminal and civil damage of corporate crime and negligence and to capture the collective and continuous impact of oil extractivism, as opposed to the exceptional impact of oil disasters. Transversal harm opens new avenues for assigning corporate responsibility and reducing disaster tolerance as the by-product of environmental law.

When the Cannons Roar, Tort Laws Are Silent? A Re-examination of Section 5B of the Civil Wrongs (Liability of the State) Law

This article tackles the question of the legality of section 5B of the Civil Wrongs (Liability of the State) Law, which precludes the Palestinian residents of the Gaza Strip, members of terrorist organisations and their agents from obtaining compensation for injuries suffered as a result of the negligent conduct of Israeli security forces. The question is examined through the lens of Israel's tort law, comparative law, the law of occupation, and international human rights law.A special focus is given to the amendments made in the said section and its interpretation by Israeli courts, while addressing the state's tort liability towards nationals of enemy states and members of terrorist organisations. In order to emphasise the legal difficulties arising from the Law and the need for its re-examination, the 2018 protests near the Israel-Gaza border are used as a case study. The article concludes by offering to revoke the legal identification as enemy state nationals of Gaza's residents for the purposes of applying state liability in tort. In addition, it recommends the adoption of an individual examination mechanism in relation to members of terrorist organisations. These suggestions are expected to better fulfil the purposes underlying the state's tort liability exemptions, while increasing Israel's compliance with its legal obligations.

The Challenges of the Trend of Artificial Intelligence on the Construction of Civil Liability: Applied to Smart Medical Devices as an Example

在全球人口走向老化、且平均壽命不斷延長的趨勢下，對醫療照護的需求勢必有增無減。但與此同時，人口結構變遷的影響也使得醫療人力日漸吃緊。在此背景下，將現處於爆發性成長、又不會感到疲累的人工智慧引進醫療領域，由其來協助醫事人員完成任務，初步看來不論是對醫、病而言均具有相當實益。然而，醫療事務畢竟與人之生命、健康有密切關聯，稍有不慎即可能帶來嚴重後果。倘若醫師在診治病人的過程中使用了智慧醫療器材，但有誤判之狀況致病人受到生命、身體或健康上的損害，此時智慧醫療器材製造人或醫師有無可能須承擔相應的民事損害賠償責任？非無進一步探究之餘地，亦為本文關注之議題。Under the trend of an aging global population and a continual increase of average life expectancy, the need for medical care is bound to increase. However at the same time, the impact of demographic changes has also made medical workforce increasingly scarce. In this context, the introduction of artificial intelligence-which does not experience fatigue and is currently under explosive growth-to the medical field for assisting medical personnel to complete their tasks seems so far to be quite beneficial to both medical professionals and patients. However, after all, medical affairs are closely related to human life and health, and a little carelessness may result in serious consequences. If a doctor applies a smart medical device in the process of diagnosing and treating a patient, and a misdiagnosis occurs resulting in damage to the life, body or health of the patient, is it possible in this case that the smart medical device manufacturer or the doctor must bear the corresponding civil damages compensation? There is room for further research, and it is also the topic of concern in this paper.

Commentary: Standard of Care During a Crisis: What Should a Surgeon Know (and Do)?

Commentary: Standard of Care During a Crisis: What Should a Surgeon Know (and Do)?

Tanggung Jawab Hukum Atas Penyalahgunaan Kartu Kredit Pemerintah Dalam Pengelolaan Keuangan Negara

The study aims to identify and understand the legal responsibility for the misuse of government credit card holders in the country's financial management. This type of research is doctrinal legal research or normative legal research. The approach used is, the legal approach (statute approach), and the conceptual approach (Conceptual Approach). Data sources are sourced from primary legal materials, secondary legal materials and tertiary legal materials. The results of the study showed that legal responsibility for the misuse of government credit cards, can be processed legally by state administration; if by law the state administration indemnity of state financial losses is difficult to implement, it is taken by filing Civil damages in the District Court and or criminal charges can be filed

Punishment in Tort: The Context of Ideas in Rookes v. Barnard

Abstract Modern corrective justice theorists of tort law remain critical of the Anglo-American common law doctrine that allows a plaintiff to be awarded damages beyond compensation, and for the distinct purpose of punishing a defendant in a civil tort action. From the corrective justice standpoint, punishment is an illegitimate remedial purpose of the law of tort. So much so, that the historical doctrine of civil damages that continues to allow for it – exemplary (or punitive) damages – should be totally abolished. This article revisits a historical tort case that modern corrective justice tort theorists have praised for very nearly abolishing the exemplary damages doctrine in one leading common law jurisdiction: it critically explores the 1964 decision of the Appellate Committee of the United Kingdom House of Lords in Rookes v. Barnard. In doing so, it strives to set this theoretically significant reform of the English law of civil tortious recovery more vividly in the historical context in which it was undertaken. It contends that a deeper appreciation of Rookes’ theoretical significance requires taking fuller account of the context of ideas in which Lord Devlin – the Law Lord to whom the House’s decision on damages is ascribed – undertook it.

The US Debate on the Indirect Purchaser’s Claim to Damages in Competition Law Cases: Lessons for South Africa

A debate that has dominated American competition law jurisprudence relates to whether indirect purchasers should be prevented from claiming damages in private enforcement cases or whether both direct and indirect purchasers should be given the opportunity to claim civil damages. While there may be practical considerations impacting the extent to which those who have been indirectly harmed by cartels can reasonably expect to claim damages, an overly restrictive approach that would only consider direct purchasers may mean that some who might have a valid claim are effectively denied access to justice. None of the courts in the bread price-fixing cases or other subsequent competition law damages cases in the South African courts dealt with the essential question, which is whether or not all participants in the supply chain, regardless of their role as end consumers (indirect purchasers) or purchasers of inputs (direct purchasers), should be allowed to sue an upstream cartel for damages? In this article I analyse the seminal cases which prompted this debate in the United States and, I argue that in South Africa, the implications of not allowing an indirect purchaser to claim damages has a negative impact on the end consumers’ case. I advocate for allowing both indirect and direct purchasers to claim damages, and for the defendant to raise a passing-on of the overcharge defence in response.

The tort of malicious prosecution of civil proceedings: a critique and a proposal

AbstractLitigation is a tactical business. The recognition of the tort of malicious prosecution of civil proceedings in Willers v Joyce in 2016, by the barest of majorities, adds to the tactical intrigue, for it is now feasible that failed civil proceedings could be swiftly followed by a counter-suit for malicious prosecution against the original unsuccessful claimant. The tort requires proof of ‘malice’. As a concept, malice may have a 400-year history, but insofar as the new tort is concerned, it has proven to be opaque. In this paper, a critical evaluation of the tort since the Supreme Court gave it the ‘green light’ in Willers is undertaken. As a cause of action, it has been sparsely used, and beset with difficulties and unforeseen consequences. Whilst tort law, as the rubric of civil wrongs, must remain ‘on the move’, it is important that judicial reform achieves desirable and useful outcomes. It is argued in the paper that the tort recognised by Willers has not met that objective to date. However, a detailed law reform study of this and other related torts, leading to a statutory tort of ‘abuse of litigious processes’, would serve to bring order to the present disarray.