Expert Liability Research Articles

ДОЦІЛЬНІСТЬ ВСТАНОВЛЕННЯ КРИМІНАЛЬНОЇ ВІДПОВІДАЛЬНОСТІ СУДОВОГО ЕКСПЕРТА ЗА НАДАННЯ ЗАВІДОМО НЕПРАВДИВОГО ВИСНОВКУ ТА ОЗНАКИ ТАКОГО КРИМІНАЛЬНОГО ПРАВОПОРУШЕННЯ

The expediency of establishing the forensic expert criminal liability for providing a deliberately false opinion and the features of such a criminal offense under Part 1 of Art. 384 of the Criminal Code of Ukraine are analyzed in the article. The necessity for norms providing for the liability of the forensic expert is stated, and the requirement for their actual application is pointed out. A criminally illegal act provided by Art. 384 of the Criminal Code of Ukraine is analyzed: Deliberately expert false opinion, which was made for submission or submitted to the body conducting pre-trial investigation, enforcement proceedings, court, High Council of Justice, temporary investigative or special temporary investigative commission of the Verkhovna Rada of Ukraine. Within the research, authors identify the main shortcomings of Art. 384 of the Criminal Code of Ukraine formulation. The researchers propose to amend the disposition of Art. 384 of the Criminal Code of Ukraine so that criminal liability of the forensic expert to draw a deliberately false opinion will exist regardless of the circumstances of such a criminal offense. The application of Art. 384 of the Criminal Code of Ukraine in terms of criminal liability of the expert liability for providing a deliberately false opinion is analyzed. The researchers find that there are no convictions that have entered into force in Ukraine to bring experts to justice under the relevant part of Art. 384 of the Criminal Code of Ukraine. Consequently, the researchers note that, despite the existence of certain shortcomings of this article of the Special Part of the Criminal Code of Ukraine, the main problem is the lack of its real application in practice. This means that public authorities do not prosecute experts for drawing deliberately false opinions. At the same time, the proper and effective application of criminal law will help experts to comply with their responsibilities. In addition, the suggestions on improving the sanction of Art. 384 of the Criminal Code of Ukraine are stated.

Civil prospectus liability under the laws of Germany and South Africa

Civil prospectus liability is the liability for a prospectus which is published in the context of issued securities on the primary market. Both the German and South African legal systems protect investors who are induced into investing by incorrect prospectuses. Chapter 4 of the Companies Act 71 of 2008 contains rules, in s 104 and s 105, which set out the prospectus liability of directors, experts, and others. German law provides comparable provisions. The differences between the two systems become apparent in the detail. South Africa’s statutory prospectus liability clearly sets out the liability of experts and focuses mainly on the personal liability of directors. The German law has traditionally referred to unwritten legal principles in respect of experts. What both legal systems have in common is that the mutual interests of potential plaintiffs and defendants are not exclusively regulated by statute law, and that both pursue a balanced form of investor protection. This article aims to contribute to the future harmonisation of both legal systems in order to facilitate cross-border investments.

Normative Regulation of Expert Liability in Legal Proceedings of the EAEU Member States

A forensic expert, as a participant in legal proceedings, carries out important activities to assist in proving the persons conducting the proceedings, as well as to persons who have a legal interest in the outcome of the case. In order to carry out his functions, he is entrusted with a number of duties, the proper fulfillment of which, in the opinion of the legislator, contributes to the high-quality, complete and objective conduct of an expert study and giving an opinion. The expert’s responsibility is established by various codified normative legal acts of the member countries of the Eurasian Economic Union. Several types of liability are envisaged depending on the severity of the consequences of failure or improper performance by an expert of his duties: criminal, administrative, procedural. Nevertheless, the normative consolidation of the expert’s responsibility today does not allow us to speak about the logic and the validity of the established types of responsibility. Analyzing the specified types of expert’s liability, it can be concluded that in some cases the use of certain negative consequences in relation to the expert is disproportionate, there is a lack of a unified approach in different types of legal proceedings to determining the type of expert’s liability.

The Protective Purpose of the Contract and the Liability of an Expert Towards a Third Party in Czech, Austrian, and German Private Law

Abstract The aim of the paper is to describe the so-called protective purpose of the contract, by demonstrating the liability of experts for damage caused by an imperfect expert opinion, incorrect advice, or information. The comparative method will be used in conjunction with analyzing the Czech, Austrian, and German arrangements – their continuities and differences. Criteria for assessing whether this is a protective purpose of the contract and how these criteria vary in different legal frameworks are discussed in detail. The conceptual features of the expert as well as the assumptions of their responsibility for providing advice or information regulated in the individual jurisdictions are argued as well. The article concludes that the protective purpose of the contract is demonstrated accurately in the case of the liability of the expert for damage which has been established on the basis of a contract. These are in particular cases where an expert draws up an opinion on behalf of the parties on the basis of a contract which is, however, concluded with merely one party. In the event of a breach of the contract, the expert is also responsible for the damage caused to a party that has not concluded the contract with an expert.

Expertise processes in risk assessment and management: How to improve their governance and their conduct?

Major accidents and disasters, such as Fukushima in Japan (2011) and Aquila in Italy (2009), have significantly changed the conditions of public vigilance and their trust in so-called experts. They have also consequently questioned the legal liability of experts and have remobilized the scientific community in the way that the expertise process is conducted, governed and challenged. More robust, sound and reliable expertise processes are needed, and more transparency and accountability are asked for by the public. At the same time, the frontiers between expertise and decision processes must continually be reevaluated and subjected to possible public audits and scrutiny. This special issue on ‘‘Expertise, Risks and Decisions’’ in Environment Systems and Decisions suggests for the first time a multi-disciplinary contribution to this crucial subject with four main focuses: (1) on the use of social and human sciences to improve the robustness of expertise processes, (2) on how to bridge the gap between experts and other actors by using deliberative and participative approaches, (3) on expert judgment and information fusion and (4) on the use of decision-aiding methods. Maslen and Hayes (2014) and Tabibzadeh and Meshkati (2014) have suggested learning from major disasters and accidents such as the case of the Wivenhoe Dam inquiry following the Queensland (Australia) floods in January 2011 and BP Deepwater Horizon in the Gulf of Mexico (2010), respectively. It is still surprising to notice that even in our contemporary world, expertise continues to be considered as a vox dei where no errors are tolerated and where the blame is considered as being the final sanction. The authors suggest that if we go beyond this omnipresent vision of expertise, possible improvements in expert practices and facilitation of organizational learning can be made. The so-called human and organizational factors in safety sciences, and how to mobilize human and social sciences in risk analysis and risk management, are the key for a more comprehensive learning from expertise and decision-making experiences in risky, uncertain and complex situations. Wachinger et al. (2014) and Arvai et al. (2014) have, respectively, proposed practical methods and case studies (public debate on hospital planning in Germany and a pressing international development problem in rural Costa Rica: management of the lucrative but also environmentally destructive pineapple industry) on how to make participative and deliberative democracy paradigms achievable in practice. They have, respectively, suggested innovative approaches to bridge the gap between experts, citizens and politicians. The authors have also proposed to organize the participative and/or the deliberative processes based on semi-formal or formal structured decision-making approaches and tools. With Baccou and Chojnacki (2014), Ha-Duong and Journe (2014) and Lannoy and Procaccia (2014), we return to some crucial problems in expertise such as information fusion in deep uncertainty, the assessment of the probability of a major accident and learning for operational practices and experiences by the use of expert judgment in safety and reliability engineering. Using practical and operational examples, such as natural risk problems in mountains in France and crisis management, Tacnet et al. (2014) and Kamissoko et al. (2014) close this special issue by sharing their experiences in framing structured approaches based on decision-aiding theories using multi-criteria methods, decision support systems methods and tools and information fusion approaches. M. Merad (&) INERIS, Paris, France e-mail: myriam.merad@ineris.fr

Civil Liability of Expert Witnesses in Spain

Abstract: In Spain, civil liability of legal experts is to be addressed by the general rules of the Spanish Civil Code, as there are not specific rules on that subject. These general rules contained in the Civil Code are apparently wide and generous in order to allow a claim for losses caused by expert witnesses, but - in sharp contrast with this first impression - the truth is that there are very few court decisions imposing civil liability on expert witnesses. There are some specific provisions regarding legal experts in the Criminal Code and some related case law, but those provisions does not give light on the general subject of legal experts' liability. In any case, I think that Jones v. Kaney should give place to contractual liability, if it were tried in Spain; in my view, any of the requirements of liability is particularly problematic in the case.

Precision of Ratings

We analyze the equilibrium precision of ratings. Our results suggest that ratings become less precise as the share of uninformed investors and the gains of trade increase. The results provide an explanation for low accuracy of ABS ratings before the financial crisis. We apply the model to evaluate the effectiveness of the recent reform proposals, including Dodd-Frank Act. We show that some policies, in particular, rating standardization and expert liability, reduce market efficiency.

Efficient Third Party Liability of Auditors in Tort Law and in Contract Law

Efficient Third Party Liability of Auditors in Tort Law and in Contract Law

Liability of Experts for Pure Economic Losses, an Economic Analysis with Special Reference to German Cases

Hans-Bernd Schaefer, University of Hamburg, Institute for Law and Economics Presentation at the Law and Economics Workshop UC Berkeley, 19 March 2001 This presentation is partly based on a paper coauthored with Roger Van den Berg and partly on another paper on expert liability which is so far only available in German language (to be published in Archiv fuer die civilistische Praxis (AcP)). Participants reading German can receive a copy of the second article. Two propositions are made. The first proposition is that a rule of obvious or gross negligence is a good rule for pure tort law cases when it comes to pure financial loss. The second proposition is that this solution is not recommendable, if the borderline between tort and contract is not clear, as often in cases of expert liability. Special emphasis is therefore laid on the liability of experts who often act not only for their contractual partner but also for others. Under which conditions should they be protected by the law of contract or by the law of torts?

Liability of Experts and the Boundary between Tort and Contract

This paper offers an economic analysis of one aspect of the possible liability for incorrect information traded on information markets: expert liability for incorrect asset valuation. The article does not address the questions of whether and under what circumstances an expert should bear contractual liability for an incorrect valuation. Rather, it assumes such contractual liability towards the person who has solicited the opinion and focuses instead on analyzing the circumstances under which the expert’s liability should be extended to third parties as well.

Federal Court of Justice and Expert Liability Towards Third Parties: Public Safeguard and Private Interest

On June 26, 2001 the Bundesgerichtshof (Federal Court of Justice) handed down a new decision regarding the liability of experts towards third parties (Reg. No. X ZR 231/99). While the Court appeared to have taken a somewhat new direction, the latest judgement must be considered in the context of a steadily evolving jurisprudence related to the effect on third parties of contracts involving the transfer of expertise, especially in light of a third party's reliance on this expertise. Parties contracting for expert testimony or evaluation regularly do not, at least not explicitly, take a third party into consideration in their contractual dispositions. Problems arise, however, when in the performance of the contract a third party, often the buyer or a bank seeking an evaluation of a client's creditworthiness, substantially relies on this expert evaluation produced pursuant to the contract. Where the seller defaults, the bank (in this example) may attempt to directly sue the expert.