Tort Liability Research Articles

A Welfare Test for Sharing Health Data

AbstractMachine learning and artificial intelligence methods are being increasingly used in the analysis of patient level and other health data, resulting in new insights and significant societal benefits. However, researchers are often denied access to sensitive health data due to concerns on privacy and security breaches. A key reason for reluctance in data sharing by data custodians is the lack of a specific legislative or other methodological framework in balancing societal benefits against costs from potential privacy breaches. Consistent with traditional cost–benefit analysis and the use of Quality Adjusted Life Years (QALYs), this study proposes an economic test that would enable Research Ethics Boards (REBs) to assess the benefits versus risks of data sharing. Our test can also be used to assess whether REBs employ reasonable effort to protect individual privacy and avoid tort liability. Constructing an acceptable welfare test for health data sharing will also lead to a better understanding of the value of data.

법관의 재판에 대한 국가배상책임

The Supreme Court of Korea has ruled on the liability of the state for enacting Emergency Measure No. 9 and for the actions of the investigative bodies and judges who applied and enforced it. Since the Supreme Court’s decision, the issue of the state tort liability for the judges’ trials has again become the subject of considerable debate. The Korean Supreme Court has rarely ruled on the state’s liability for the trial conduct of judges, using vague criteria. The standard of “holding a trial for an illegal or improper purpose”, which has been recognized in many cases is too subjective. In addition, most cases, such as auction, criminal, and preservation proceedings, do not involve a “judgment”. Taking into account the nature and specificity of the judiciary, it is necessary to review the rules governing the immunity of judges from trial. To this end, it is necessary to define the “subject matter” of the judicial immunity. This should be limited to judgments which are recognized as having substantial legal force, or decisions which are recognized as having an equivalent effect. It is also necessary to consider when a judge can be held liable for judicial misconduct. These include cases where a judge’s conduct materially violates the constitution or the law; where the judge's conduct constitutes a criminal ‘offense’; where the judge intentionally or grossly exceeds the scope of his or her jurisdiction; or where the judge applies in ‘bad faith’ a law that is highly suspect of being unconstitutional. The above criteria are not perfect. They need to be openly discussed by practitioners and academics in the future. In addition, there should be a system of financial compensation for damage caused by minor errors, misunderstandings, or misjudgments by judges in the course of proceedings.

Research on the Determination of Tort Liability for Human Damage Caused by Surgical Robots

Research on the Determination of Tort Liability for Human Damage Caused by Surgical Robots

Про концепцію соціальної відповідальності бізнесу та унормування відповідальності материнських компаній

The article identifies various areas of violations of human rights and freedoms by industrial companies, which require an adequate response from the legislator. The experience of French and German law in protecting human rights and freedoms from the adverse impact of economic activity may be useful. This also applies to the liability of a parent company for the actions of its subsidiaries, given the existence of control over the activities of the latter, and the adoption of decisions that indicate the level of influence they exert. Despite the fact that economic freedoms are currently prioritized over social interests, social responsibility of business is becoming increasingly important. The article focuses on the issues of determining the type, amount of liability and assessment of violations identified in the course of analyzing the case law in disputes on social responsibility of business in the presence of a negative impact on human rights and freedoms. The author analyzes the tort liability of legal entities for human rights violations, noting that it is characterized by pecuniary compensation. In the absence of actual damages, the tort liability of companies loses its meaning. The case law of the European Court of Human Rights and Ukrainian court practice does not provide for compensation for the mere fact of interference or the mere existence of a negative impact on human rights and freedoms by a business entity. This makes it necessary to find other approaches to respond to the negative consequences of companies’ activities. The problem is exacerbated by the fact that damage to human rights and freedoms is difficult to measure and evaluate: determining the equivalent value of a violation of the right to privacy, personal information, loss of comfort, etc. On the contrary, the practice of English courts is to award compensation to the claimants whose rights and freedoms have been violated, which distinguishes them from the tort liability of companies.

Research on tort liability of autonomous vehicle

Research on tort liability of autonomous vehicle

Research on the tort liability of network service providers

Research on the tort liability of network service providers

The extension of vicarious liability in corporate groups

ABSTRACT This article explores the important but unresolved issue of whether one legal entity can be vicariously liable for another legal entity’s tort in a corporate group primarily based on UK law. Prior literature and case law seldom provide detailed discussion on the extended application of vicarious liability in group situations. The article aims to enrich the discussion of corporate tort liability by specifically evaluating whether the relationship between the parent and subsidiary companies could be akin to employment, and by researching whether this relationship is closely connected with the tort, subsequently leading to vicarious liability. The research findings reveal that the enterprise risk theory supports the close connection between the special relationship (the parent and subsidiary companies) and the tort in certain circumstances. However, the essential tests for the relationship requirement (namely, the control, organisation, integration, and entrepreneur tests) are difficult to meet in combination in modern group situations.

The correspondence between contractual and tort liability in the Civil law of Ukraine, Germany, and France

The correspondence between contractual and tort liability in the Civil law of Ukraine, Germany, and France

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.

Towards the Establishment of Spouse Tort Liability within Marriage

In the evolution of law, there is a growing awakening of individual consciousness. The number of intra-marital tort claims not predicated on divorce has increased in judicial practice. However, China currently only has a compensation system for damages arising from divorce, which is not conducive to the protection of the legitimate rights and interests of the parties involved. With the development of the economy, the liberalization of ideas, the collision of Chinese and Western legal thoughts, and the independent status of marital economics, the establishment of an intra-marital tort system has become possible. Intra-marital tort litigation is not predicated on the termination of marriage, but is established to protect the victim, punish the at-fault party, and prevent the occurrence of tortious acts. The elements of such litigation should have stricter requirements than general torts.

Intubation Refusal by Patients' Family: Related with Self-Determination as the Object of Tort Liability

Intubation Refusal by Patients' Family: Related with Self-Determination as the Object of Tort Liability

인공지능의 민사책임에 대한 소고

The recent development of artificial intelligence (AI) technology is bringing about changes at a faster pace and on a larger scale than any other period in human history. With technological advancements overcoming the limitations of medical AI through training with databases, AI technology has made remarkable progress since the inception of deep learning for image processing with convolutional neural networks (CNN) in 2012. The recent advancements in natural language processing (NLP) have accelerated the utilization of AI through sophisticated natural language processing, enabling machines to identify and understand data regardless of the complexity of the language. This has laid the foundation for the rapid and precise development of generative AI. In the era where generative AI is being utilized without pausing in its developmental speed, we considered the civil liability of AI in our civil law principles, taking into account the inherent characteristics of AI such as unpredictability, opacity, and the black box effect. To do this, we first examined the legal liability considering the stages of AI technology development in discussing the tort liability caused by AI. Even “Weak AI,” created by AI developers, may fall under “Gefahr,” and while not all types, some may apply to strict liability in terms of risk liability. Furthermore, while reviewing civil liability applicable to AI under fault-based and no-fault liability, we also looked at the trends in the EU comparatively. In discussing no-fault liability, particularly under the Product Liability Act, we examined the possibility and implications of applying risk liability to pharmaceutical manufacturing using generative AI technology as a representative example to overcome the limitations of the existing Product Liability Act. Humanity currently lives in an era of rapid technological development and exploding big data, enjoying numerous benefits due to these advancements. As user convenience improves and massive added value is created through technological progress, the meaning of risk liability in the realm of civil liability can gain more significance. Generative AI has already drastically reduced the costs and time required for new drug development, providing substantial profits to pharmaceutical companies. However, even if the existing Product Liability Act is applied, it may be difficult to adequately remedy the harm to victims due to the reasonable alternative possibility defense regarding design defects. In the era of generative AI, we examined the possibility of applying enhanced risk liability by assuming the case of pharmaceutical manufacturing.

Exploration on the Legal Application of Punitive Damage System for Tort of Ecological Environment Damage–Taking Article 1232 of the Civil Code as an Entry Point

The rule of law for the ecological environment is in rapid development, and article 1232 of the Civil Code establishes the system of punitive damages applicable to the ecological environment, which is a significant development of China’s environmental tort liability system. However, the basis for the construction of the system of punitive damages and the ambiguity of the legal provisions themselves bring uncertainty in the application of the law. From the legislative purpose, the background of the legal system for a deep understanding of the function and characteristics of the punitive damages system, and then clarify the basis of the right to claim the qualification of the subject of the application. Through the existing legal provisions and empirical statistical data, the contradictions of the ecological environment infringement compensation system are solved, and the gap in the calculation standard of punitive damages is made up. Finally, from the liability system as a whole, to promote the ecological environment damage tort liability into the overall liability system to consider, in order to realize the punitive damages system responsibility for comprehensive, rationalization of the system to provide the basis.

Challenges for Regulating Tort Liability for Adaptive Robots

لا يتردد هذا البحث في تأييد الحجج التي تحاول ربط أفعال الروبوت بالإنسان، أي عدم القول بمسؤولية الروبوت الشخصية عن أعماله؛ لكن مع توضيح إشكاليات بعض النظريات التقليدية في إسنادها المسؤولية للإنسان، كما يوضح البحث كيف أن النظريات الحديثة التي حاولت تفادي قصور النظريات التقليدية؛ لم تقدم الجديد، وراوحت مكاناها. لذلك يطرح البحث مبررات رفض مسؤولية الروبوت الشخصية؛ القانونية منها، وغير القانونية التي لا تنفصل عن القانون المتمثلة في السياق الأخلاقي والنفسي للمسؤولية، ثم يقترح أساسا قانونيا مقنعا؛ يتفادى قصور النظريات المشار إليها.

El desarrollo decisional de la jurisprudencia del Consejo de Estado colombiano en cuanto a la reparación del daño ambiental consecutivo directo

Between 2004 and 2021, the jurisprudence of the Colombian Council of State on tort liability addressed the study of cases in which the plaintiff, attributing environmental damage to the State, sought full reparation of damages. Given that these damages may deprive certain persons of the use or enjoyment of the values that the ecosystems they inhabit provide them, this research aims to answer the question of what is the ideal way to order the reparation of harm attributable to the State, of the individual facet of the constitutional right to a healthy environment. For this purpose, the methodology of the jurisprudential line proposed by López Medina (2006) is applied to those cases where direct consequential environmental damage is attributable to the State, arguing that the ideal way to compensate for this type of damage is reparation in kind. It is suggested that disregard for the individual facet of the right to a healthy environment in the contentious administrative jurisdiction implies that the reparation of environmental damage is partial; therefore, the study proposes as a solution a sentence in which the Council of State unifies its jurisprudence recognizing the individual facet of this right.

Research on the Judgement Standard of the Duty of Care of Internet Service Providers

The internet service providers tort liability for general fault tort liability, which means that network service providers bear the tort liability need to subjective fault for the elements, then for the network service provider's subjective fault judgement standard objectively to rise to the network service provider's reasonable duty of care judgement standard above the problem. Up to now, about the network service provider's duty of care standard judgement is still no clear provisions, in the legal and judicial fields are more controversial. This paper explores these issues through an analysis of trial practices, seeking to establish a more standardized approach to evaluating ISPs' duty of care. The findings suggest that adopting the "good manager" standard could significantly enhance the clarity and effectiveness of managing ISPs' tort liabilities. It proposes the establishment of a dedicated management association within ISPs to implement and oversee these management policies consistently across the sector. This approach aims to not only define but also enforce a reasonable duty of care standard that is both fair and practicable.

A Products Liability Framework for AI

A products liability framework, drawing inspiration from the regulation of FDA-approved medical products—which includes federal regulation as well as products liability—holds great promise for tackling many of the challenges AI poses. Notwithstanding the new challenges that sophisticated AI technologies pose, products liability provides a conceptual framework capable of responding to the learning and iterative aspects of these technologies. Moreover, this framework provides a robust model of the feedback loop between tort liability and regulation.The regulation of medical products provides an instructive point of departure. The FDA has recognized the need to revise its traditional paradigm for medical device regulation to fit adaptive AI/ML technologies, which enable continuous improvements and modifications to devices based on information gathered during use. AI/ML technologies should hasten an even more significant regulatory paradigm shift at the FDA away from a model that puts most of its emphasis on (and resources into) ex ante premarket approval to one that highlights ongoing postmarket surveillance. As such a model takes form, products liability should continue to play a significant information-production and deterrence role, especially during the transition period before a new ex post regulatory framework is established.

Can there be responsible AI without AI liability? Incentivizing generative AI safety through ex-post tort liability under the EU AI liability directive

Abstract In Europe, the governance discourse surrounding artificial intelligence (AI) has been predominantly centred on the AI Act, with a proliferation of books, certification courses, and discussions emerging even before its adoption. This narrow focus has overshadowed other crucial regulatory interventions that promise to fundamentally shape AI. This article highlights the proposed EU AI liability directive (AILD), the first attempt to harmonize general tort law in response to AI-related threats, addressing critical issues such as evidence discovery and causal links. As AI risks proliferate, this article argues for the necessity of a responsive system to adequately address AI harms as they arise. AI safety and responsible AI, central themes in current regulatory discussions, must be prioritized, with ex-post liability in tort playing a crucial role in achieving these objectives. This is particularly pertinent as AI systems become more autonomous and unpredictable, rendering the ex-ante risk assessments mandated by the AI Act insufficient. The AILD’s focus on fault and its limited scope is also inadequate. The proposed easing of the burden of proof for victims of AI, through enhanced discovery rules and presumptions of causal links, is insufficient in a context where Large Language Models exhibit unpredictable behaviours and humans increasingly rely on autonomous agents for complex tasks. Moreover, the AILD’s reliance on the concept of risk, inherited from the AI Act, is misplaced, as tort liability intervenes after the risk has materialized. However, the inherent risks in AI systems could justify EU harmonization of AI torts in the direction of strict liability. Bridging the liability gap will enhance AI safety and responsibility, better protect individuals from AI harms, and ensure that tort law remains a vital regulatory tool.

자율주행자동차 상용화에 대비한 자동차보험제도 연구

On May 7, 2016, in the state of Florida, USA, a fatal accident occurred involving an autonomous vehicle and a large truck, leading to the death of the driver. This incident heightened interest in autonomous vehicles and sparked discussions on their implications, including the challenges and liability issues in the event of accidents during autonomous operation. The application of existing legal frameworks, such as Article 750 of the Civil Code on tort liability and Article 3 of the Automobile Damage Compensation Guarantee Act on operator liability, to accidents involving autonomous vehicles raises questions about identifying responsible parties and compensating victims. This study examines the applicability of these legal principles to accidents occurring during autonomous driving and proposes the introduction of a No-Fault insurance system as a novel automotive insurance mechanism to address these issues. The analysis revealed that the No-Fault insurance system, a solution to the problems posed by the current fault-based liability system and already implemented in several advanced countries since the early 2000s, was considered but ultimately not adopted in South Korea due to challenges in amending existing legislation, limitations in calculating insurance rates, and concerns over moral hazard, among other issues. However, as autonomous vehicles are poised to integrate into our lives more rapidly than anticipated, and the social concerns regarding traffic accidents during autonomous operation deepen, it is imperative to form a task force comprising the Ministry of Land, Infrastructure, and Transport, the Financial Supervisory Service, the General Insurance Association, among others, before it's too late. This task force should engage in research and discussions, while building a consensus among the public, to prepare for the new automotive market driven by the autonomous vehicle industry.

Material and Tort Liability: Problems of Correlation between the Norms of Civil and Labour

The author notes the inconsistency of the current institution of material liability with the basic provisions of civil legislation on tort liability. Financial liability by its characteristics is a kind of tort liability. The presence in the labor legislation of a mention of bringing participants in labor relations to civil liability creates conditions for full compensation for harm, including lost profits according to the norms of the Civil Code of the Russian Federation, after receiving compensation under the rules of limited or full liability. With such legal regulation, taking into account judicial practice, there is either a diminution of the importance of categories of labor law, or a non-uniform application of the norms of the Labor Code of the Russian Federation. Gaps and imperfections in the construction of liability should be eliminated by completely isolating this institution or by observing all the rules and principles of tort liability.