Civil Law Liability Research Articles

The impact of increased risk on civil liability for property damage

In the article, the author substantiates the expediency of liability even in the absence of fault for damage caused by activities or objects that carry an increased risk of causing property damage to other subjects. It is noted that civil legislation consists mainly of norms aimed at positive regulation, establishing the rules of lawful behavior. The will and awareness of the fulfillment of duties, laid down in the norms of civil legislation, are directed precisely at lawful behavior. The will and awareness as prerequisites for the entry of persons into the civil circulation determine legal regulation and give the behavior of persons, in accordance with the established norm, legal significance. The possibility of choice, which a person realizes in the permitted activity, is connected with the will. In turn, choice is often directly or relatively based on risk as an element of decision making. In the course of the study, a conclusion was formed that in accordance with the distributive manifestation of the principle of justice of tort liability in civil law (distributive justice), the distribution of burdens and benefits of useful, but risky types of activities should take place as follows. The one who receives the benefits and has to bear the burden is the price of co-existence in the social world. It is unfair if the subject of risky activity will transfer the burden of loss from such activity to the victims, leaving only the benefit behind. Normative ascertainment in a number of cases of no-fault liability is dictated precisely by the just desire to restore the violated property sphere of the victim at the expense of the person who caused the damage, who risked engaging in an activity that creates an increased danger for others, and who was aware that the implementation of this activity could lead to accidental damage. It should be noted that the above-mentioned arguments for the implementation of the principle of justice, according to which «the one who increases the danger for those present above the usual level through his activities, must also bear responsibility for this increase», are also relevant in the course of defining other types of special torts. Particularly in cases of civil liability in the field of providing medical services. A certain medical activity carried out using X-ray or laser devices, to a large extent, always contains an increased risk of unforeseen complications due to the impossibility of full control over it by medical professionals; therefore it is quite appropriate to attribute such activity to the source of increased danger.

PURSUING CLAIMS FOR PRENATAL DAMAGE CAUSED BY POOR AIR QUALITY. PART 1: AN OUTLINE OF THE PROBLEM FROM THE PERSPECTIVE OF POLISH LAW

The present article combines original and review research. It is an attempt to answer the question about whether there is a personal interest in the form of the right to a clean environment or the right to clean air. It also enquires whether, in the current legal situation, it would be possible to pursue compensation claims for an injury suffered at the prenatal stage caused by poor air quality. Moreover, the paper attempts to identify the right to the environment as a public subjective right and provides a discussion of the resolution of the Supreme Court of 28 May 2021 (III CZP 27/20). The study presents an original approach to the issue discussed. Its analysis is relevant due, in particular, to the still-growing problems of air pollution and smog and their impact on the development of a nasciturus, implying the question of the possibility of pursuing claims in this respect. The present article is an introduction to the topic (the first part of the discussion) and also analyses the legal bases of liability for damage suffered as a result of poor air quality. Moreover, it supplements the author’s doctoral thesis entitled Odpowiedzialność cywilnoprawna za szkody doznane przed urodzeniem (‘Civil Law Liability for Damage Suffered Before Birth’).

Субсидиарная ответственность в гражданском праве: ответственность или обязательство?: дискуссионные вопросы

Введение: Активная деятельность по рассмотрению сущности и определению содержания субсидиарной ответственности в российском гражданском праве началась ещё во второй половине 1990-х гг. Цель: рассмотреть дискуссионные вопросы относительно гражданско-правовой сущности субсидиарной ответственности (что она представляет собой: ответственность или обязательство?). Методологическая основа: правовой анализ понятия «субсидиарная ответственность», совокупность диалектического, системного и структурно-функционального методов исследования, а также логический и юридический подход. Результаты: аргументирована авторская позиция относительно сущности субсидиарной ответственности в контексте современного российского гражданского права. Выводы: субсидиарная ответственность – это субъективно обусловленная, установленная законом, иными правовыми актами или условиями обязательственного правоотношения обязанность (необходимость) третьего лица в плане осознанного и добровольного обеспечения удовлетворения требований (претензий) кредитора в случае отказа или невозможности исполнения должником взятых (возложенных) на себя в отношении него [кредитора] обязательств.

FORCE MAJEURE AND NOTARY RESPONSIBILITY: THE CASE OF THE DESTRUCTION OF DEED MINUTES

Notaries, in carrying out their duties, have the authority to create authentic deeds, where authentic deeds serve as perfect evidence in court proceedings. According to Article 16 of the Notary Law (UUJN), the notary's obligation is not only to create authentic deeds but also to store them as part of the notary's protocol, which is a state document or archive that must be properly preserved and stored to prevent loss or destruction under any circumstances. The focus of this thesis is on the scenario where the notary's office, the place where all archives or protocols are stored, experiences a disaster or force majeure. The question arises whether the notary is still responsible for the destruction of the notarial protocol in such a case. The objective of this research is to examine and analyze the notary's responsibility for deed minutes that are destroyed due to force majeure and the legal construction of deed minute storage to minimize their loss due to force majeure. In this regard, concerning civil law liability, if the notary's negligence in safeguarding the notarial protocol results in losses for the parties involved, the notary's actions may be qualified as an Unlawful Act (PMH). PMH is regulated in Articles 1365 to 1367, stating that any unlawful act causing harm to others makes the perpetrator liable for the resulting losses. The legal consequences for a notary whose negligence leads to the loss or damage of deed minutes and failure to store them properly may result in administrative sanctions as stipulated in Article 9, paragraph (1), letter d of UUJN, which entails temporary suspension from the position of notary due to violating the obligations and prohibitions of the profession.

CIVIL-LEGAL LIABILITY FOR VIOLATION OF HOUSING RIGHTS: ISSUES OF THEORY AND PRACTICE

Research objective. The need to identify the specifics of civil liability for various violations of housing rights in the absence of systemic legal regulation of liability issues, including civil liability, in the acts of housing legislation, and fragmentary nature of their study in the modern science of housing law predetermines the necessity to identify the specifics of civil liability for various violations of housing rights. In the context of continuous changes in housing legislation and development of judicial practice, expansion of the scope of application of civil law means and strengthening of inter-branch interaction, further development of the theory of civil law liability in case of violation of housing rights is obviously relevant. The article considers various types of civil liability in the housing sphere, which is of great social importance, it systematises them, and reveals the problems of bringing to civil liability of subjects of housing legal relations in case of non-performance or improper performance of their duties. The purpose of the study is both a comprehensive analysis of the application of the institute of civil liability in the housing sphere, and identification of the peculiarities of civil liability in case of violation of housing rights. Conclusions. As a result of the conducted research, the author comes to the conclusion that civil liability in the housing sphere is a secured state coercion imposition on the participants of housing legal relations of additional adverse consequences of property nature through the application of property sanctions for committing housing offences, aimed at restoring the violated housing rights of victims or preventing their violation. The civil-law nature of a significant array of housing relations creates the potential for the large-scale application of civil-law remedies, including such an important one as civil-law liability. The applied measures of civil liability for offences in the housing sphere are affected by the opposite effect of the sectoral peculiarities of housing law. The specificity of civil liability for violation of housing rights is conditioned by the peculiarities of the legal regime of residential premises, which is simultaneously the object of housing and civil legal relations, and consists in a significant number of legal requirements to the residential premises themselves. The legal regime of residential premises predetermines predominantly peremptory statutory nature of civil liability, manifested both in the establishment of the form of liability and its amount. The basis for bringing to civil liability in the housing sphere is non-fulfilment or improper fulfilment by the subjects of the obligations included in the content of proprietary, obligatory or corporate legal relations, the object of which is residential premises. Civil liability in the housing sphere may be not only of a restorative nature aimed at restoring violated housing rights, but also of a preventive nature in the form of deprivation or restriction of the subjective housing right, if the use of residential premises violates its qualitative characteristics as an object of housing rights. Most civil liability measures are aimed at ensuring the safety and maintenance of residential premises in a fit for purpose condition. Further improvement of protective norms of housing legislation on civil liability will contribute to the effective protection of housing rights against violations.

Actio directa and Indirect Consequences of Damage in the Conflict-of-law Perspective

The problems of indirect victims are considered in many European and non-European jurisdictions because of the fact that the traditional doctrine of compensating damage is based on the directly injured person. The question of determining the law applicable to civil law liability for human death in cross-border matters becomes all the more crucial. In this context, special attention should be paid to the judgment of the Court of Justice of 10 December 2015, C-350/14, Florin Lazar v. Allianz SpA, in which it was concluded that the law applicable in such situations is the law of the country where the direct damage occurred and was suffered by the directly injured party. In addition, claims for damages formulated by indirectly injured persons require analysis in the context of their assertion directly against the insurer of the person responsible for the damage (actio directa).

Evolution of Jurisdiction in Medical Malpractice Cases in Hungary

In Hungary, in the period before the political transition, in 1989 and in the first years afterwards, a relatively small number of medical compensation lawsuits were initiated. However, the enactment of the Health Act in 1997 has gradually changed this and made the patient from the previous vulnerable position to an equal partner with the healers. As a consequence, we can observe the conscious consumer behaviour of citizens in relation to healthcare services, so recently the quality of health services is more often being questioned.In the previous judicial practice, the rate of patients winning lawsuits was completely different compared to the current situation, the majority of cases ended with the dismissal of their claims. The reason for this lies in the vulnerable position of the patient which already exists during healthcare and lawsuits as well. Neither the judicial practice nor the legal environment attempted to counterbalance this vulnerability at that time.However, this has gradually changed, and nowadays we can witness a particularly strict judicial practice, the establishment of liability for damages of healthcare institutions is frequent.The purpose of the article is to demonstrate how the judicial practice of the medical compensation cases has evolved over the past 15-20 years in Hungary, and as a result, what currently observable trends have emerged. To achieve this, it is essential to examine extensively two preconditions of civil law liability for damages, namely causation and fault, as jurisdiction has changed the most in this aspect. Many factors of uncertainty arise in connection with healthcare services due to the uniqueness of the human body. The outcome of lawsuits is significantly influenced by how the court assesses uncertainty factors and which party bears the burden of uncertainty.

Challenges of sanctions lists screening and the impact of sanctions triggered by conflict zones

This paper emphasises the importance of sanctions policy and the role of different sanctions regimes triggered by various conflict zones today and in past decades. Based on examples of sanctions against Iraq, the Russian Federation and Venezuela, it highlights the difference between traditional embargo-style sanctions and recently introduced sectoral sanctions specifically targeting specific economic sectors. The paper also discusses coordination efforts between different sanctions regimes towards a global sanctions policy through the experience of the sanctions against the Russian Federation, as well as a new human rights sanctions regime. On the other hand, different political considerations can also lead to a clash of sanctions regimes. The paper discusses the impact of divergent international relations with Iran on sanctions when the United States withdrew from the Iran nuclear deal in 2018, reinstating secondary sanctions against Iran and causing legal and economic challenges for companies within the European Union (EU). Based on the recent preliminary ruling of the Court of Justice of the EU in the Bank Melli v Telekom Deutschland GmbH case, the paper points out the main considerations regarding the blocking statute activated by the EU in order to protect enterprises within the EU from the extraterritorial effect of foreign sanctions laws. In addition, the paper features the possible criminal as well as civil law liability for sanctions violations in different jurisdictions, highlighting some examples such as sanctions law offences by BNP Paribas. In the light of the possible penalties and financial losses caused for companies, the paper sets out a comprehensive decision matrix for experts and decision makers who want to evaluate whether another entity is sanctioned or has sanctioned ownership in a certain jurisdiction. Finally, it elaborates which technical add-on features a sanctions list screening software should possess in order to detect and manage sanctioned entities.

КРИТЕРИИ ДОБРОСОВЕСТНОСТИ ПРИ РАЗРЕШЕНИИ ВОПРОСА О ПРЕДДОГОВОРНОЙ ОТВЕТСТВЕННОСТИ В ГРАЖДАНСКОМ ПРАВЕ

The article deals with the theoretical and practical aspects of the institution of pre-contractual liability in civil law. In particular, the variety of interpretations of the concept of "good faith" and the problems associated with the lack of a common denominator regarding the allocation of its special properties are investigated; signs of dishonest behavior are indicated, such as the provision of incomplete or inaccurate information to a party and the sudden termination of negotiations by one of the parties, provided that the other party could not have expected this to happen. The problems of creating a comfortable "contractual environment" were also investigated and judicial practice on the stated issues was studied.

Objective and legal content of the principle of good faith of tort liability in civil law

Objective and legal content of the principle of good faith of tort liability in civil law

Civil Law Liability in Cases Involving AI: Efficient Distribution

Civil Law Liability in Cases Involving AI: Efficient Distribution

Interest of the Company- the Discussion on Axiological Choices

The obligation to act professionally and loyal to the managed corporation is a statutory component of the organizational relationship and expresses the essence of these bonds and the sense of entrusting the values of the company to these hubs for the purpose of its proper management. The sources of the administrator’s duties cannot be limited to respecting statutory injunctions and prohibitions, since they designate only border points. They do not constitute a casuist regulation of all situations. Assuming the legislator’s praxeological and axiological rationality in the process of legislating, it would be necessary to involve a lack of due professional diligence on the basis of civil law liability. However, most courts, as well as the majority of the representatives of doctrine, do not recognize the basis of this responsibility in the mere failure to observe the standards in question, regardless of the seriousness of negligence or inefficiency in the exercise of functions.

Принципы гражданско-правовой ответственности (продолжение)

The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.

Риск как гражданско-правовая категория: доктринальные подходы и законодательные позиции

The scientific research is devoted to the law characterization of risk. Risk as a law category has a rather contradictory assessment in matters of subjects activities of civil law, including in situations of bringing them to civil law liability. We present doctrinal opinions regarding the risk concept, as well as the provisions of Russian civil law containing regulatory prescriptions regarding risky activities. We point out that the risk theory correlates with the general scientific theory of probability, and illustrative examples are given that prove such a connection between them. The purpose of the study: to conduct a doctrinal and legal analysis of risk as a civil category, as well as to formulate the author’s definition of the concept under study. The methodological basis of the work is based on such methods as: comparison method, complex analysis method, as well as a number of special scientific cognition methods: historical, comparative legal, formal legal. The author’s formulation of risk concept, including a number of identifying features, is proposed. We indicate that risk is a category of subjective-objective property. We conclude that the fact of the existence of the so-called increased responsibility is presumed by the nature of such activity, which is expressed in an increased risk of its implementation, and which this person is aware of, accepted, and because of its objectivity in the activities of a person cannot be completely excluded.

Civil law liability for non-performance of obligations in Russian civil law

Civil law liability for non-performance of obligations in Russian civil law

Principles of civil liability (ending)

The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.

ПРИНЦИПЫ ГРАЖДАНСКО-ПРАВОВОЙ ОТВЕТСТВЕННОСТИ (продолжение)

The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.

ПРИНЦИПЫ ГРАЖДАНСКО-ПРАВОВОЙ ОТВЕТСТВЕННОСТИ (начало)

The French law of obligations has been undergoing significant changes in the recent years. The French contract law reform came to the end in 2018. The next set of the changes relates to the civil liability issues. A translation of a book written by one of the key French authors in this field, which translation is proposed to divide into several parts and to so make it available for the Russian legal professional community, helps to better explore the material and to clearer understand the main principles which the French approach on the fundamental problems of the civil law liability is based on.

Legal basis and directions of improving the corporate responsibility

The paper examines the current state of legal regulation of corporate responsibility, identifies prospects for reforming the institution of corporate responsibility to ensure compliance with corporate rights. In particular, it was found that a corporate agreement creates a different nature of the relationship (both mandatory and corporate), it has a binding nature, so in case of violation may be applied civil liability for failure or improper performance of obligations. At the same time, corporate responsibility differs from civil law (classical) liability in the circle of responsible persons, the procedure for bringing to justice, corporate responsibility measures, etc. The case law illustrates that it is possible that a party to a corporate agreement does not systematically comply with the terms of the agreement, for example, does not participate in the general meeting of the corporation or votes against it with other parties to the agreement, which actually calls into question the successful achievement of corporate goals. agreement and its effectiveness as a regulator of relations for the joint management of corporate rights. In this case, an effective way to protect the rights of the parties to the contract is the obligation of the infringer to alienate its share in the authorized (composed) capital (shareholding) in favor of other participants in the corporate agreement at market or pre-agreed price. However, it is noted that the possibility of establishing an obligation to sell shares as a sanction for breach of corporate agreement raises some doubts. In fact, such an obligation is a restriction on property rights. It is proposed to solve this dilemma by reforming the institution of corporate responsibility for non-performance or improper performance of corporate obligations that correspond to the corporate rights of participants in the direction of separating it into a separate type of legal liability. In particular, it is proposed to supplement the Law of Ukraine “On Limited and Additional Liability Companies” Art. 7 “Corporate liability” reads as follows: “in case of non-performance (improper performance) of corporate obligations established by law, contract and constituent documents of the company, corresponding to the corporate rights of participants, sanctions in the form of compensation and exclusion of the participant may be applied”.

THE INSTITUTE OF PRE-CONTRACTUAL LIABILITY IN THE LIGHT OF RECODIFICATION OF CIVIL LEGISLATION OF UKRAINE

Among the main objectives of the Decree of the Cabinet of Ministers of Ukraine № 650 of 07.17.2019 “On the Formation of a Working Group on the Recodification (updating) of Civil Legislation of Ukraine” is a comprehensive analysis of the existing civil legislation of Ukraine and the definition of areas of private legal relations that need to be brought into line with world trends in the development of private law. In this regard, it becomes necessary to study the issues related to the possibility of fixing in the civil legislation of Ukraine for relations related to entrepreneurial activity rules on pre-contractual liability (in order to prevent unfair conduct at the stage preceding the conclusion of the contract). The definition of the legal nature of pre-contractual liability has a great practical importance, since the question depended on the extent of damages, which would vary between tort and contract liability. The purpose of this study is to create theoretical provisions that can serve as the basis for building the institution of pre-contractual liability in Ukrainian civil law. The article defines the content and criteria for good faith behavior at the stage of negotiations, characterizes the legal consequences of violation of the principle of good faith at the pre-contractual stage, taking into account the doctrinal and legislative provisions of foreign law and orders. It is proposed to establish at the legislative level certain criteria for good conduct, the identification of which is possible by comparing the categories of “good faith” and “bad faith”. The latter has similar features to the guilt that is disclosed in the legislation using the phrase “knew and (or) should have known”. It was concluded that since the principle of good faith in the conduct of negotiations applies both in the presence of obligations of the parties to conclude a contract (for example, in the case of signing a preliminary contract, the existence of an agreement of the parties to conduct good faith negotiations) and in the absence of such obligations, the criteria of good faith conduct must be observed even if the parties are not bound by any legal obligations to conclude a contract. It is emphasized that the content of the requirement for good faith negotiations can be disclosed in the Civil Code of Ukraine by fixing such basic duties of the parties to the negotiations as: consistent behavior, not to mislead another negotiator and cover a ban on unreasonable, sudden interruption of negotiations, when another participant reasonably believed that the contract would be concluded, provision (disclosure) of information necessary for the conclusion of the contract; non-disclosure of confidential information obtained as a result of negotiations.