Liability For Damage Research Articles

가습기살균제 피해사건의 국가배상책임 인정 판결에 대한 고찰

The “Humidifier Disinfectant Incident,” where numerous citizens suffered serious health damages from humidifier disinfectants sold in Korea from 1994 to 2011, can be attributed to the irresponsible actions of companies that failed to ensure product safety and the negligence of the government and related organizations in properly managing and supervising these products. Victims and their families claimed damages against manufacturers and the state, but only the manufacturers' liability for damages was primarily recognized, with state compensation liability not being acknowledged. Additionally, the court decided on the liability of manufacturers and sales companies based on whether the primary ingredient of the humidifier disinfectant was of the P series (PHMG/PGH) or C series (CMIT/MIT). Around January 2012, the Seoul Central District Court, through the 2012Gahab4515 damages case, dismissed the claims of the victims and their families on January 19, 2015, not recognizing the state's fault. However, recently, on February 6, 2024, the Seoul High Court issued a significant ruling through case 2015Na2014486, marking the first time state compensation liability was recognized in this matter. This judgment emphasizes the responsibility of the state and relevant agencies in the safety assessment and supervision process of chemicals, reaffirming the importance of state measures to protect the health and safety of its citizens. Notably, this ruling provides critical insights on how the state should respond to ensure citizens' rights to a healthy and comfortable environment against harmful chemicals. Therefore, this study examines the significant legal grounds and principles through this landmark decision, affirming the state's legal responsibilities and duties in public health management and crisis response through chemical management, thereby contributing to reestablishing the role of the state in protecting the lives and safety of its citizens.

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’).

Адміністративні правопорушення в галузі охорони природи та використання природних ресурсів. Частина І. Атмосфера, повітря, відходи, пестициди та агрохімікати

Abstract. Aim. An analysis of the administrative legislation of Ukraine in the field of nature protection (atmosphere, air, waste, pesticides and agrochemicals) was carried out, criminal offenses that could be hidden under administrative offenses, or preparations for them or attempts to commit them, were considered. Materials and Methods. It has been established the criminal offenses (crimes), preparation for them or attempts to commit them can be hidden behind administrative offenses in the field of nature protection and use of natural resources (atmosphere, air, waste, pesticides and agrochemicals), namely: Art. Art. 78; 78-1; 79; 79-2; 80; 81; 82; 82-1; 82-2; 82-3; 82-4; 82-5; 82-6; 82-7; 83; 83-1 of the Code of Ukraine on Administrative Offenses. If there are relevant signs of a committed crime, the specified actions may entail liability for land pollution or damage (Article 239 of the Criminal Code of Ukraine); for atmospheric air pollution (Article 241 of the Criminal Code of Ukraine); for sea pollution (Article 243 of the Criminal Code of Ukraine); for violation of the legislation on the continental shelf (Article 244 of the Criminal Code of Ukraine), as well as for the illegal importation of waste and secondary raw materials into the territory of Ukraine (Article 268 of the Criminal Code of Ukraine). Administrative offenses subject to liability under Article 83 of the Code of Ukraine on Administrative Offenses "Violation of the rules for the use, storage, transportation, neutralization, elimination and burial of pesticides and agrochemicals, toxic chemicals and other drugs" can hide such criminal offenses as failure to take measures to eliminate the consequences of environmental pollution (Article 237 of the Criminal Code of Ukraine); concealment or distortion of information about the environmental condition or morbidity of the population (Article 238 of the Criminal Code of Ukraine); pollution or damage to land (Article 239 of the Criminal Code of Ukraine); destruction or damage of plant life objects (Article 245 of the Criminal Code of Ukraine); violation of legislation on plant protection (Article 247 of the Criminal Code of Ukraine); intentional destruction or damage of territories taken under state protection and objects of the nature reserve fund (Article 252 of the Criminal Code of Ukraine); design or operation of structures without environmental protection systems (Article 253 of the Criminal Code of Ukraine). In addition, such actions can constitute treason (Part 1 or Part 2 of Article 111 of the Criminal Code of Ukraine), sabotage (Part 1 or Part 2 of Article 113 of the Criminal Code of Ukraine); ecocide (Article 441 of the Criminal Code of Ukraine) and genocide (Article 442 of the Criminal Code of Ukraine), etc. The authors provided proposals for further improvement of the content of some articles of the Code of Administrative Offenses. Conclusions. Thus, Article 79 of the Code of Ukraine on Administrative Offenses consists of two parts, each of which should be made a separate article, and Article 83 – 1 provides for administrative responsibility for six independent acts, which should be made independent articles of the Code of Ukraine on Administrative Offenses. Proposals regarding the qualification and practical application of certain articles in the sphere of normative and legal regulation of legal relations in the field of environmental protection are also provided. Keywords: administrative offenses, nature protection, atmosphere, air, waste, pesticides and agrochemicals.

Public Law Liability of the Financial Market Supervisor

This article deals with the liability of the supervisory authority of the financial market. It could be questioned whether the supervisory authority, as the public authority, is liable for the supervisory performance. If the answer is yes, then the question is what kind of liability could be found and if any special conditions (prerequisites) are needed. In general, there could be two lines of public liability found. One is systemic liability for the safe financial market—e.g., financial market stability. The other perspective is individual liability for damages caused by unlawful administrative procedure or maladministration, where unlimited strict liability is granted. This kind of liability might be widely questioned, especially when the central bank is the supervisory authority, like in the Czech Republic, Slovakia, Hungary, and other EU member states. This article aims to evaluate the liability of the supervisory authority in the Czech Republic and Hungary concerning the European level of such liability.

Civil Liability for damage caused by Autonomous Cars

Civil Liability for damage caused by Autonomous Cars

Об уголовной ответственности владельца за вред, причиненный домашним животным (собакой) третьим лицам

The laws of Russia and some foreign states have no special criminal law provisions that establish the liability of the owner for damage caused by his/her pet (dog) to third parties. The article reviews issues of qualification of such acts under the laws of Russia and foreign countries. A comparative analysis of laws of some foreign states and Russia that regulate the bases and procedure for bringing pet dog owners to the legal liability for damage caused by them to health of third parties has shown the unity of approaches towards strict legal liability including criminal liability of such owners in cases of gross violation of rules for handling their pets. At the same time, countries apply different approaches within their jurisdiction to solving the issue of specification of criminal laws applicable to the cases under consideration by singling out or refusing to single out special elements of crimes for violation of pet handling rules. The task of determination of legally relevant attributes of the link between the crime subject (dog owner), behavior of his/her pet and actions/inactivity of the victim seems relevant for the Russian criminal law practice.

On the Scope of Liability for Negligence in Maritime Search and Rescue under the Background of the Amendment to the Maritime Code

In the era of contract-based maritime rescue under the background of amendments to the Maritime Code, disputes arise regarding whether a rescuer who, due to negligence, causes harm to the assisted party should bear tort liability. When a rescuer negligently causes harm to the assisted party during maritime rescue operations, it constitutes concurrent liability for tort and breach of contract. The rescuer should bear the responsibility for compensating the damages. Specifically, in establishing liability, it is essential to adhere to the standards identical to those in the Tort Liability section of the Civil Code. However, in determining the scope of liability, the principle of full compensation should not be strictly applied and can be appropriately relaxed. First, after posing the question, this paper employs a legal normative analysis method to explore the applicable domestic and foreign laws as well as international treaties related to the issue. The current legal systems stance on the matter is derived from legal norms. Analyzing the rights and obligations relationship between the rescuer and the assisted party from the perspective of balancing interests aims to achieve a new balance of interests between the two parties. Secondly, by comparing the Maritime Code with the Civil Code, the specific differences between the Maritime Code and the Civil Code provisions are identified. Additionally, considering the inherent characteristics of the Maritime Code, an analysis is conducted to differentiate the establishment and scope of liability for negligence-induced maritime rescue. Thirdly, through comparative analysis, it is determined that the rescuer should bear liability for damages resulting from negligent infringement, but the scope of liability can be appropriately limited. Moreover, a comparison between the maritime rescue system and relevant systems is made to clarify the relationship between the maritime rescue system and other relevant systems, providing theoretical support for the amendment of the Maritime Code. Finally, solutions and recommendations are proposed for the issues raised in the context of amendments to the Maritime Code.

Risk management and empirical study of the doctor-patient relationship: based on 1790 litigation cases of medical damage liability disputes in China

BackgroundCompensation for medical damage liability disputes (CMDLD) seriously hinders the healthy development of hospitals and undermines the harmony of the doctor-patient relationships (DPR). Risk management in the DPR has become an urgent issue of the day. The study aims to provide a comprehensive description of CMDLD in China and explore its influencing factors, and make corresponding recommendations for the management of risks in the DPR.MethodsThis study extracted data from the China Judgment Online - the official judicial search website with the most comprehensive coverage. Statistical analysis of 1,790 litigation cases of medical damage liability disputes (COMDLD) available from 2015 to 2021.ResultsCOMDLD generally tended to increase with the year and was unevenly distributed by regions; the compensation rate was 52.46%, the median compensation was 134,900 yuan and the maximum was 2,234,666 yuan; the results of the single factor analysis showed that there were statistically significant differences between the compensation for different years, regions, treatment attributes, and trial procedures (P < 0.05); the correlation analysis showed that types of hospitals were significantly negatively associated with regions (R=-0.082, P < 0.05); trial procedures were significantly negatively correlated with years (R=-0.484, P < 0.001); compensat- ion was significantly positively correlated with years, regions, and treatment attributes (R = 0.098–0.294, P < 0.001) and negatively correlated with trial procedures (R=-0.090, P < 0.01); regression analysis showed that years, treatment attributes, and regions were the main factors affecting the CMDLD (P < 0.05).ConclusionsYears, regions, treatment attributes, and trial procedures affect the outcome of CMDLD. This paper further puts forward relevant suggestions and countermeasures for the governance of doctor-patient risks based on the empirical results. Including rational allocation of medical resources to narrow the differences between regions; promoting the expansion and sinking of high-quality resources to improve the level of medical services in hospitals at all levels; and developing a third-party negotiation mechanism for medical disputes to reduce the cost of medical litigation.

The Legal Status of Artificial Intelligence Systems and Models of Differentiation of Legal Liability for Damage Caused by them

The objective of this paper is to define the models of responsibility for intelligent systems in situations when harm is caused (in the form of any wrongdoings, including crimes). For this purpose, the paper examines the current state of artificial intelligence technologies from the standpoint of moral, volitional and intellectual autonomy for modeling approaches to their legal personality. Such autonomy can be expressed only through the software element of a technological system, that is, even in the case of robots (cyberphysical systems), their legal assessment requires an analysis of how operations are carried out in order to evaluate incoming information rather than the physical characteristics of such a system. The author analyzes approaches according to which intelligent systems can be compared with legal entities, individuals, animals, and meta-directional structures in terms of the volume and nature of their legal capacity. The conclusion is made about the need for an independent legal assessment of artificial intelligence systems beyond their comparison with the existing legal categories. The need to train a system using a limited dataset, that is, without additional training in a real environment, adversarial attacks and internal errors of intelligent systems are considered as examples of technical limitations of technology that do not allow to raise the question of its subjectivity at the moment. The author highlights that in order to determine responsibility for the harm caused by an intelligent system, it is necessary to establish a circle of persons between whom it is distrubuted: an intelligent system itself, its developer and the operator (user). Thus, the author defines 10 models of responsibility distribution between them.

Ensuring Fair Compensation: Analyzing and Adjusting Freight Forwarder Liability Limits

Background: Due to the absence of unified global regulations, defining the service and legal role of freight forwarders is challenging. This, as well as the lack of a standardized limit to the freight forwarder’s liability for loss or damage to the cargo, introduces misunderstandings into his relationship with the client. The purpose of this study is to analyze the most widely used limit for freight forwarder’s liability, set in Special Drawing Rights (SDR) units, and to adjust it, which will allow for maintaining the purchasing power of the compensation amount over different periods of time. Methods: In this study, two methods of adjusting the liability limit were proposed. In accordance with the first one, the limit was adjusted considering the impact of dollar inflation on the SDR unit. The second method involves changes in the limit of liability, taking into account changes in world prices for goods. Results: The result of this study showed that the second method is more functional, helping to preserve the purchasing power of the liability limit most effectively over time. Conclusions: This study revealed the fluctuating purchasing power of the forwarder’s liability limit over time and suggests utilizing a methodology tied to changes in global goods’ prices for adjustment.

Criminal and civil liability of the wrongdoer in economic offences under Jordanian legislation

Most countries tend to confront economic crimes through their own economic laws. The study focused on showing the specificity of the mental element of economic crimes, which has extraordinary rules that are outside the general rules of offences established in the Penal Code. Most economic legislation treats wrongdoing offences as intentional. Here, the weakness of the mental element of economic crimes appears, being presumed. So that the legislator merely finds a mistake to inflict punishment. Derogating from the general rules, where punishment is imposed for acts of wrongdoing in economic crimes. The study also examines civil liability for damages and financial compensation. The mere fact that the offender has achieved the criminal result is punishable regardless of whether the offender's will exists or not. Because of the nature of the error in economic offences, the unintended economic offence is not subject to the provisions of the general provisions of the Penal Code. Economic offences are characterized by the imposition of severe and deterrent penalties. To achieve public and private deterrence and maintain security and the national economy

The Principles of European Tort Law and Product Liability

Abstract The authors of the Principles of European Tort Law (PETL) did not intend to regulate in detail the strict liability of a manufacturer for damage caused by a defect in its product. While creating general principles of liability for damage caused otherwise than by breach of an obligation, they had no need to refer to those problems for which uniform and detailed solutions already existed in the European Communities. Product liability was such a problem (the only one in the area of tort law, by the way). Given the existence of the 1985 Product Liability Directive, there was no need to look for an answer to the issue of the victim’s claim against the producer in the PETL’s provisions on strict liability (art 5:101 PETL) or on fault-based undertaking liability (art 4:202 PETL). However, the need for this has emerged in recent years. As technology and business models have developed, new possibilities of harm to users of products (in the broad sense of the latter term) and third parties have emerged, which seem to call for the liability of the manufacturer or commercial intermediaries. This liability, however, cannot be based on 1985 Product Liability Directive (PLD) provisions. The question therefore arises whether the Principles adopted in 2005 would be a sufficient foundation upon which such a liability rule could be built. The article discusses some of these new damage scenarios and explains why neither the narrow approach to strict liability in PETL nor its fault-based enterprise liability rule yields satisfactory results in relation to them. It then outlines the current proposal for a new European product liability law, aiming to fill these liability gaps.

Impact of differences between the Nuclear Law Act and the Vienna Convention on Civil Liability for Nuclear Damage on the Terms and Conditions of Nuclear Civil Liability Insurance

The focus of this article is that Polish legal provisions on civil liability for nuclear damage do not reflect the provisions of the Vienna Convention in all aspects. However, due to some limitations hereof, the considerations presented deal only with some selected issues that may affect the availability of nuclear third party liability insurance, and will be divided into two parts.The aim of the first part is to consider the major differences between the provisions of the Nuclear Law Act and the Vienna Convention, which include, among others, different deadlines for seeking compensation for nuclear personal injury and/or methods for satisfying such claims. Since both issues refer to personal injury, the notion of the latter is analysed, bearing in mind that certain discrepancies between the Polish Act and the Vienna Convention can also be noted.The second part discusses terms and conditions of third party nuclear liability insurance, entities specializing in offering such insurance, including nuclear pools and nuclear mutual insurance companies, as well as obstacles that may prevent third party nuclear liability insurance from being offered on the Polish market as compulsory insurance.This article covers only the rules relating to civil liability for nuclear personal injury resulting from the operation of a nuclear power plant, with those rules being considered primarily from the perspective of the insurance practice. The principles of civil liability for the transport of nuclear material from nuclear facilities, the operation of research reactors or of radioactive waste storage facilities have not been taken into account, as both insurers’ approach and terms and conditions of insurance covering said activities may vary slightly when compared with nuclear power plants.

Обязательное страхование ответственности за причинение морального вреда

The article analyses the legal regulation of civil liability insurance for moral damage. The author aims to find out whether the current insurance legislation is necessary and sufficient to introduce compulsory insurance of such liability. It is proved that the insurance of civil liability for moral damage within the meaning of the current versions of paragraph 1 of Article 931 of the Civil Code and paragraph 6 of Article 4 of the Law on the Organisation of Insurance business is lawful. The lack of uniform criteria or methods for calculating the amount of compensation for moral damage makes it difficult to assess the insured interest and is the reason for the rarity of this type of insurance in our country. The author comes to the conclusion that the existing prohibition against the introduction of compulsory insurance of civil liability for moral damage is an unjustified excessive regulation. A proposal is formulated to include in the Concept of Development of the provisions of Part Two of the Russian Civil Code on the insurance contract a provision on amending paragraph 1 of Article 935 of the Code in terms of expanding the list of types of civil liability in respect of which the law may establish the obligation to insure the corresponding risk.

Egzekucja roszczeń odszkodowawczych w związku z wywołaniem i prowadzeniem wojny napastniczej

The article presents key issues related to the assertion of claims for liability for damages resulting from the instigation and conduct of a war of aggression. These issues have become topical again not only due to revival of the discussion concerning claims for damages caused during the Second World War, but also due to the ongoing armed conflict between the Russian Federation and Ukraine since 2021. At present, there are no codified, uniform and well-established legal principles in this area regarding the claims themselves in general, or for their enforcement. Under international law, a war of aggression can certainly give rise to an obligation to provide compensation on the part of the state that caused or conducted it (the responsible state).In the twentieth century, the issue of liability for reparations was primarily regulated in acts of peace-making, most famously in the Treaty of Versailles. However, there is still an ongoing theoretical discussion as to whether and how liability for damages can be effectively claimed by the injured state, but also by individuals – on the basis of the rules of international law or even domestic law, since these entities do not, in principle, have international legal subjectivity. Indeed, individual claims are or at least can also be the subject of international agreements. In this context, the article points to a trend away from the principle of absolute jurisdictional immunity of states in favour of limited immunity, which should also be applied to immunity from enforcement. This leads to the question of the desirability of moving away from rigid rules of protection for states when, by provoking and waging a war of aggression, they can on this basis avoid liability for their own unlawful actions. Furthermore, given the limited framework of legal instruments of influence in relations between states, the question arises as to whether and which measures (including the long-known so-called precautionary measures) can be used unilaterally not only against a state, but also against its citizens and the assets of the legal entities subject to its legislation. In practice, it is precisely such measures that can serve to secure claims for damages through the seizure of property assets. However, it should not be forgotten that the application of such unilateral measures may be challenged in relations between Member States of the European Union. In addition, any expropriation or confiscation may be challenged as inadmissible not only under the constraints of Article 215 TFEU, but also in light of the protective norms of the EU Charter of Fundamental Rights and Article 1 of Protocol No. 1 to the ECHR, and, at the level of state legislation, constitutional norms.

Poszerzenie zakresu zabiegu operacyjnego bez zgody pacjenta. Glosa do wyroku Sądu Apelacyjnego w Warszawie sygn. akt I ACa 413/20 z dnia 28 stycznia 2021

The patient’s informed consent is an important aspect in the process of treatment from the point of view of assessing the legality of the doctor’s actions, taken especially during surgery. The judgment of the Court of Appeals of January 28, 2021, which is the subject of this gloss, concerns a factual situation in which, due to extraordinary circumstances that could not have been foreseen during the preoperative diagnosis, there was a need to broaden the scope of surgery during a medical procedure. The court correctly pointed out in the thesis of the voted judgment that it is permissible to widen the surgical field beyond the scope of the patient’s consent, which means that the doctor’s action under the conditions of the necessity to widen the surgical field could not give rise to liability for damages due to the occurrence of circumstances giving rise to the doctor’s duty to save the patient’s life and health.

Research on the Transboundary Environmental Damage Caused by the Discharge of Nuclear Wastewater in Japan

Neighboring nations voiced severe protests when Japan unilaterally declared on August 23, 2023, that it intended to release radioactive effluent stockpiled since the Fukushima nuclear accident in 2011 into the ocean. Japan clearly breaches international law by acting in a way that is contrary to its duties for reasonable risk prevention, notification, and transboundary environmental impact assessment. In the international community, the question of transboundary injury accountability and compensation has long been of concern. International conventions addressing transboundary pollution are mostly framework agreements with soft law provisions, which means that their substantive impact on contracting parties' behavior is minimal. This article examines the national and personal obligations that the party in control of this nuclear wastewater discharge should have by combining concepts of international law, including the principle of attribution, state sovereignty, and international environmental protection. It examines the characteristics of international transboundary damage liability and compensation schemes from the standpoint of governments taking on international environmental responsibility.

Forensic Identification and Evaluation of 25 Obstetric Brachial Plexus Palsy Medical Damage Cases.

To analyze the high risk factors of obstetric brachial plexus palsy (OBPP), and to explore how to evaluate the relationship between fault medical behavior and OBPP in the process of medical damage forensic identification. A retrospective analysis was carried out on 25 cases of medical damage liability disputes related to OBPP from 2017 to 2021 in Beijing Fayuan Judicial Science Evidence Appraisal Center. The shortcomings of hospitals in birth weight assessment, delivery mode selection, labor process observation and shoulder dystocia management, and the causal relationship between them and the damage consequences of the children were summarized. Fault medical behavior was assessed as the primary cause in 2 cases, equal cause in 10 cases, secondary cause in 8 cases, minor cause in 1 case, no causal relationship in 1 case, and unclear causal force in 3 cases. In the process of forensic identification of OBPP, whether medical behaviors fulfill diagnosis and treatment obligations should be objectively analyzed from the aspects of prenatal evaluation, delivery mode notification, standardized use of oxytocin, standard operation of shoulder dystocia, etc. Meanwhile, it is necessary to fully consider the objective risk of different risk factors and the difficulty of injury prevention, and comprehensively evaluate the causal force of fault medical behavior in the damage consequences.

The Legal Basis for Civil Liability in the Nuclear Field

This study examined the legal basis of civil liability in the nuclear field by assessing the feasibility of fault-based liability, whether it is based on proven fault or presumed fault, to establish civil liability for nuclear damages. Furthermore, the study addressed strict liability as the most suitable solution for establishing liability in the nuclear field, given the inadequacy of fault-based liability in addressing the issues of nuclear incidents and compensation for them. The study recommended the necessity of implementing strict and absolute liability in the nuclear field to protect individuals, society, and the environment from the catastrophic severity of nuclear incidents. It emphasized the importance of focusing on all means of nuclear safety and security to avoid any nuclear incident, and the significance of solidarity among nuclear operators and insurance pools and funds when facing nuclear incidents and addressing the severe damages they cause.

Civil liability for climate change? The proposed tort in Smith v Fonterra with reference to France and the Netherlands

AbstractAs we enter into a period of unprecedented climate instability, litigation is becoming an attractive way to hold private entities accountable for their contribution to global warming. In Smith v Fonterra, New Zealand's Supreme Court is considering whether a common law duty to limit emissions should form part of New Zealand's environmental protection framework. This follows the development of several civil liability mechanisms for environmental damage in overseas jurisdictions. This article examines the implementation of civil liability for climate damage in France and the Netherlands, illustrating the difficulties of effectively dealing with climate change, and its destabilising effect on the law. France implements civil liability mostly on the basis of traditional tort rules, which function to severely restrict its scope. Conversely, the Dutch judiciary introduced a due diligence obligation that requires corporate strategies to be sufficiently in line with international obligations regarding emissions. The latter approach carries more promise, demonstrating that for private entities to be held civilly liable for their contribution to climate change, there must be significant departure from traditional legal doctrine, perhaps in the direction of climate due diligence.