National Liability Research Articles

What Liability with the Internet of Things? Insights from the European Case-Law of the PIP Affair

Abstract The purpose of this article is to explain why it is relevant to connect the European case-law on the Medical Devices Directive (MDD), by focussing on the defective breasts prostheses saga, to the future regulation of liability for healthcare IoT objects. I believe that by examining the recent case-law dealing with shortcomings in the regulation of medical devices, it will be possible to build a future liability scheme for defective IoT objects with medical functions. The article discusses how the new Medical Devices Regulation (MDR) is different from the previous MDD and whether it is likely to influence liability schemes for healthcare IoT objects. In conclusion, I argue that, however imperfect, the MDR could support the application of national liability systems in order to provide more effective and more protective liability schemes for IoT objects with medical functions.

COVID-19 확산 예방을 위한 프로스포츠 경기장의 집합금지·제한명령으로 발생한 손실에 대한 국가의 배상책임

Purpose: This study aims to prove the national compensation responsibility of the Korean government on the national liability for damages caused by the government’s legal ban and restriction of assembly orders in professional sports stadiums to prevent the spread of COVID-19.BR Method: The literature review method was selected as the research method to achieve the purpose of this study. The research was conducted to analyze the structure of ownership of professional sports clubs as first, the applicable law was collected as second, and the results were applied to a case of the government’s legal ban and restriction orders of assembly in professional sports stadiums.BR Results: First, the ownership structure of professional sports stadiums in Korea is composed of a lease contract between the government or local governments and the companies that own a professional sports team on the premise of paying the usage fee. Second, the government’s legal ban and restriction orders of gatherings in professional sports stadiums to prevent the spread of COVID-19 have secured sufficient legitimacy. Third, the Korean government is responsible for compensating for the economic losses of professional sports teams caused by the order to prohibit or restrict gatherings in professional sports stadiums to prevent the spread of COVID-19.BR Conclusion: If a ban and restriction of gatherings in a facility are ordered by its owner, the Korean government, it is unreasonable that only the club takes responsibility for the damage caused by it. However, since there is no legal system related to this in Korea, the possibility of claiming compensation for damages of professional sports clubs is not high. Based on this study, it is expected to be helpful for the development of professional sports teams in Korea.

National Liability and Fiscal Crisis

Purpose - The main purpose of this study is to measure and evaluate the level of national liabilities that Korea s national finances can afford. Specifically, the concepts of national debt and national liability are clarified, and the appropriate level of national liabilities is measured in terms of short-term fiscal crisis, mid-to-long-term fiscal crisis, and GDP. Based on these measurements of fiscal crisis, this study would like to propose national fiscal management plans. Design/methodology/approach - n order to clearly recognize the difference between the national debt and the national liability, this study examines the data from 2013 to 2020. In addition, this study uses data from the national financial statements from 2013 to 2018 to measure the appropriate level of national liabilities in terms of fiscal crisis management. Findings - Short-term fiscal crises, measured by current ratios, will not occur. Nevertheless, in view of the cash flow compensation ratio, the short-term bankruptcy of the national finances of Korea depends on the re-borrowing of short-term borrowings and current and long-term borrowings. In addition, in order to manage the mid-to long-term financial crisis, it is necessary to pay attention to the liability growth rate rather than the liability size. Research implications or Originality - While previous studies focused on the appropriate level of national debt, this study was differentiated as a study focused on the level of national liability coverage. It is expected that the results of this study will be used to manage the national fiscal soundness.

Artificial intelligence legal challenges - Focusing on national liability -

Artificial intelligence legal challenges - Focusing on national liability -

Call for advice or signal of distress?

Medico-legal issues are notoriously difficult to study because of confidentiality and legal restrictions. The article by McDougall et al (1) thus provides us with a rare and enlightening glimpse into medico-legal concerns that drive residents to seek advice from their national liability insurer. Through a content analysis, the authors identified four core themes that they suggest represent unmet knowledge gaps in postgraduate medical education: managing confidential information, complex care situations, academic matters, and patient safety incidents.

Quantifying national responsibility for climate breakdown: an equality-based attribution approach for carbon dioxide emissions in excess of the planetary boundary

This analysis proposes a novel method for quantifying national responsibility for damages related to climate change by looking at national contributions to cumulative CO2 emissions in excess of the planetary boundary of 350 ppm atmospheric CO2 concentration. This approach is rooted in the principle of equal per capita access to atmospheric commons. For this analysis, national fair shares of a safe global carbon budget consistent with the planetary boundary of 350 ppm were derived. These fair shares were then subtracted from countries' actual historical emissions (territorial emissions from 1850 to 1969, and consumption-based emissions from 1970 to 2015) to determine the extent to which each country has overshot or undershot its fair share. Through this approach, each country's share of responsibility for global emissions in excess of the planetary boundary was calculated. As of 2015, the USA was responsible for 40% of excess global CO2 emissions. The European Union (EU-28) was responsible for 29%. The G8 nations (the USA, EU-28, Russia, Japan, and Canada) were together responsible for 85%. Countries classified by the UN Framework Convention on Climate Change as Annex I nations (ie, most industrialised countries) were responsible for 90% of excess emissions. The Global North was responsible for 92%. By contrast, most countries in the Global South were within their boundary fair shares, including India and China (although China will overshoot soon). These figures indicate that high-income countries have a greater degree of responsibility for climate damages than previous methods have implied. These results offer a just framework for attributing national responsibility for excess emissions, and a guide for determining national liability for damages related to climate change, consistent with the principles of planetary boundaries and equal access to atmospheric commons. None.

군용비행장 소음소송의 실체법 및 소송법상 쟁점에 관한 검토

On April 11, 2001, as the first ruling to admit the national liability for damages to residents living near the Maehyang-ri shooting range was rendered, the litigations to claim damages caused by noise has been rapidly increased. In particular, recently, the lawsuits tended to be grouped, and in the case of noise lawsuits related to K2 Air Force Base in Dong-gu, Daegu, which was first filed in 2001 and concluded by the Supreme Court in 2011, ten years later, more than 150,000 plaintiffs were participated. This noise litigation is not only socially expensive due to the government"s financial burden, the possibility of new disputes over contingency fees with lawyers, and repeated claims for damages every three years.<BR> The enactment of the Military Noise Compensation Act and the establishment of a loss compensation system, like civil airports, is encouraging in that it prevents the inefficiency of resolving noise disputes through the payment of compensation for emotional distress. However, regardless of the establishment of the loss compensation scheme, because claims for damages are still available, noise litigations may continue in some cases. And as the first compensation under the Military Noise Compensation Act will be initiated only after 2022, many unresolved cases are and will be pending in courts. In particular, in the case of administrative loss compensation and civil damage compensation, there should be no significant difference in the total amount of compensation, so that additional disputes can be prevented. Since it is necessary to refer to the law of the substance law and the law of litigation law even after the ｢Noise Compensation Act｣, it is still necessary to study them.<BR> In this context, if we look at the substantive laws, we can figure out our courts have established a theory of strict liability for damages caused by defects in the installation and management of the objects, so that the victims of noise lawsuits only need to prove that the degree of damage they have suffered exceeds the acceptance limit, other than proving the state"s will or negligence or physical and external defects of the objects. Our court provides several factors to consider when setting the limit, but there is a problem that it is oversimplified or uniformly set. In addition, it is considered that the problem of repeatedly filing a lawsuit every three years is to be resolved by allowing a action for future performance in the form of periodic payments, and subsequent changes to circumstances must be resolved through a claim for Modification of Judgment for Periodic Payment.

STRATEGI PENYELAMATAN ARSIP STATIS PANDEMI COVID-19 SEBAGAI MEMORI KOLEKTIF BANGSA OLEH LEMBAGA KEARSIPAN

The phenomenon of political, social, economic, and cultural life in Indonesia in the figth against the pandemic COVID-19 leaves historical records in various forms and media (paper, maps, pictures, infographics, photos, audio, video, and digital) called COVID-19 pandemic archives. The COVID-19 pandemic archives is crucial for historical evidence, sources of knowledge, continuous innovation, and material for national liability for the life of society, nation and state. The archival institution as a static archival management institution in Indonesia as mandated Law of Number of 43 of 2009 on Archival has the responsibility of saving the COVID-19 pandemic archives produced by state institutions, regional governments, companies, political organizations, social organizations, and individuals as nation's collective memory. The study of saving the COVID-19 pandemic archives aims to examine the problem of the right strategy for archival institutions in saving the COVID-19 pandemic archives as the nation's collective memory. The analysis result showed that the strategy of saving the COVID-19 pandemic archives as a collective memory was carried out through policy making, applying strategic acquisition methods and documentation strategies, optimizing resources, and increasing COVID-19 pandemic archives access.

국회 입법작용의 국가배상책임에 관한 소고

국회 입법작용의 국가배상책임에 관한 소고

Follow-up to Skanska – The 'Implementation' by National Courts So Far

In its Skanska ruling, the European Court of Justice spelled out the liability of group companies for cartel damages. German courts have now handed down first rulings in respective cases. They reject a subsidiary’s or a sister company’s capability of being sued for cartel damages in civil court and thus, in principle their civil liability for infringements by other members of the same economic unit. Contrary to this assessment, Spanish courts of appeal did find subsidiaries to be liable for cartel damages in similar constellations. These opposite views are rooted in the contradictory premises of national liability laws on the one hand and European competition law on the other. However, only the synchronism of civil liability with the undertaking’s responsibility for fines fits in well reasonably with the framework of European competition law.

Liability Law as a Potential Obstacle to Circular Business Models in the Consumer Sector

Circular economic business models such as repair, reuse, access-sharing or product-as-a-service, are increasingly present in the consumer sector. Together with new digital technologies, this development challenges the legal framework which currently exists in Europe in order to protect consumers and bystanders against physical and property damage resulting from products and services. General national liability law regimes, both contractual and extra-contractual, are not well adapted to allocate risk and liability in complex bundles of products and services which involve both professional (B2C) and non-professional offerings (C2C). Product liability law, which was developed in a linear economical context dominated by sales-contracts, equally struggles to address these new issues, because of the limitations of its scope of application and the way in which its liability criterion and defences have been formulated. Current attention is focused on liability for new digital technologies. However, it will also be necessary to take circular economic models into account when developing a new liability law for products and services which is suited to a more efficient and more sustainable economy.

Extending the Principle of Economic Continuity to Private Enforcement of Competition Law. What Lies Ahead for Corporate Restructuring and Civil Damages Proceedings after Skanska? Case Comment to the Judgement of the Court of Justice of 14 March 2019 Skanska Industrial Solutions and others (Case C-724/17)

In the tradition of civil law Member States, civil liability issues are linked to the legal entity that caused a damage, with the exception of lifting the corporate veil. The Finnish competition authority imposed fines to Finnish companies that participated in an asphalt cartel. Following that decision, an action for damages was lodged for infringement of Article 101 TFEU that ultimately led to the Skanska ruling. The European judge completes and specifies some ambiguities of the Damages Directive. From a holistic point of view of the objective pursued by both public and private enforcement of European competition law rules, the economic entity of an ‘undertaking’, as it is defined by European law rather than the legal entity as it is defined by national law, must be a substantive criterion, and not a procedural one, in civil liability procedures before national courts awarding damages for European law infringements. Introducing the principle of economic continuity to national civil liability procedures is a creeping harmonisation of national civil law in order to serve the effectiveness of European competition law. The scope of Skanska could also extent to Article 102 TFEU infringements. Corporate restructuring must follow from now on a lengthy and complex due diligence as the acquirers could be liable for their predecessors’ infringements in any Member State.

義務教育費国庫負担制度と教育の地方自治 : 地方分権改革の欺瞞性とその矛盾(I 義務教育改革と教育の地方自治)

義務教育費国庫負担制度と教育の地方自治 : 地方分権改革の欺瞞性とその矛盾(I 義務教育改革と教育の地方自治)

Freedom of Expression On-Line

This article analyses the contents of the universal right to free expression in the context of its applicability on-line. It starts off with a brief recapitulation of the origin, definition and interpretation of the right to free expression, derived from article 19 UDHR. It then goes on to name the three composite rights (the right to hold, impart and receive information and ideas) and details the limitations that may be put by states upon the individual exercise of those freedoms. States' duty to protect free expression is than identified as their negative obligation to refrain from infringement as well as a positive one, to guarantee that human rights are “protected, respected and remedied” within national legal systems. Then the role of Internet Service Providers is introduced as the gate keepers of free expression in the information society. Different schemes for national ISP liability mechanisms are presented: the notice-and-take down procedure as well as Internet content filtering (preventive censorship). The paper goes on to criticize both mechanisms as enabling ISPs too much freedom in deciding upon the shape and scope of individuals' right to impart and receive information.

The Influence of Medical Liability Premiums on Obstetrics and Gynecology Specialty Selection

INTRODUCTION: The objective of this study was to determine if statewide malpractice premiums correlate with rates of selection of obstetrics–gynecology specialty by U.S. medical graduates during the years 2001–2005. METHODS: Longitudinal cohort study involving U.S. medical graduates applying through the Electronic Residency Application System. All applicants to obstetrics and gynecology residency programs from 2001 to 2005 were identified and pooled by medical school. State medical liability premium data were abstracted from national survey data. Correlation of the proportion of students matching into obstetrics–gynecology to mean state liability premium was analyzed on a state-by-state level, then by annualized premium tercile, and overall median national liability premium. RESULTS: A total of 82,709 graduates from 122 schools in 45 states were identified, of whom 4,926 matched into obstetrics–gynecology. During the study period, the median liability premium in the United States increased from $40,093 to $74,447. The state-by-state analysis revealed a poor correlation between the obstetrics–gynecology selection rate and medical liability premium (R2=0.06). Categorical analysis by annualized premium tercile revealed a statistically significant relationship between malpractice premium tercile and obstetrics–gynecology selection frequency (lower tercile: premium=$35,228, selection frequency=6.92%; middle tercile: premium=$55,150, selection frequency=6.30%; upper tercile: premium=$89,930, selection frequency=5.47%; P<.001). The overall U.S. analysis similarly revealed a statistically significant relationship between premiums and selection of obstetrics–gynecology (R2=0.80, P=.04). CONCLUSIONS: Increasing state medical liability premiums were inversely correlated to decreased selection rates of obstetrics–gynecology as a career by U.S. medical graduates during the most recent period of medical malpractice crisis.

The Damage Caused by Humidifier Disinfectants and the National Liability for Risk Management

The Damage Caused by Humidifier Disinfectants and the National Liability for Risk Management

A Victim of a Road Traffic Accident not Fastened by a Seat Belt and Contributory Negligence in the EU Motor Insurance Law

This case note relates to the recent judgement (23 October 2012) by the Court of Justice of the European Union in the case No C-300/10 concerning interrelation of the European Union motor insurance law and the national civil liability regulation. As the civil liability arising from motor traffic accidents is not approximated by the European Union law, its regulation falls within the national law. Yet, application of the national civil liability law shall not undermine the obligation to provide insurance coverage for victims of road traffic accidents. The discussed case concerns a situation when a victim who was not fastened by a seat belt at the moment of a motor traffic accident was injured, and this raises a question whether such victim may be compensated due to contributory negligence. This note provides a brief summary of the previous case law, facts, review of Advocate's General Opinion and the judgment and their analysis.

Identifying the Trans-National Enterprise for Tax and Other Purposes: An ‘Economic Entity’

Since the first instances of establishing the notion of artificial legal personhood, the corporate form has been developing to the extent that it can claim rights that are closer in nature to individuals. In the past few decades, the simple national corporate form has grown in complexity and capital to unprecedented levels, where major TNEs are becoming more politically and economically influential, to the extent that a few large TNEs control assets and human resources more than the GDP and population of some large developing countries. Ironically, the larger TNE becomes the chances for holding it liable for the legal obligations of its members diminishes, regardless of whether these obligations are based on national or international laws. Applying the 'economic entity' theory provides the chance for addressing the TNE as one entity that can assume responsibility within its economic boundaries; a personhood that goes beyond the legal separation of its national members to a different transnational level that corresponds to its special nature, but does not reach the international personhood level. This opens the door for the national and international liability of the TNE, and provides a suitable infrastructure for an equitable tax treatment thereof.

A Victim of a Road Traffic Accident Not Fastened by the Seat Belt and the EU Motor Insurance Law: CJEU Judgment in Vítor Hugo Marques Almeida

This case note relates to the recent judgement (23 October 2012) by the Court of Justice of the European Union in the case No C-300/10 concerning interrelation of the European Union motor insurance law and the national civil liability regulation. As the civil liability arising from motor traffic accidents is not approximated by the European Union law, its regulation falls within the national law. Yet, application of the national civil liability law shall not undermine the obligation to provide insurance coverage for victims of road traffic accidents. The discussed case concerns a situation when a victim who was not fastened by a seat belt at the moment of a motor traffic accident was injured, and this raises a question whether such victim may be compensated due to contributory negligence. This note provides a brief summary of the previous case law, facts, review of Attorney’s General Opinion and the judgment and their analysis.

Alignment of national government liability law in Europe after Francovich

The decision in Francovich has changed the respective national government liability law in EU Member States like no decision before it. The European states have implemented European liability law in their respective national law, when obliged to do so, and used the case as inspiration for voluntary changes in their government liability law as well. When one compares the respective law of the EU members, one sees mandatory and voluntary alignment of national legal systems that can be traced back to this precedence. This article presents government liability law, not only as a field of law, but also with respect to its individual statutory elements. It treats government liability law as an area that regulates the liability of all state actors, be they local municipalities or other state legal entities. In an effort to produce a theory of how legal systems interact with one other, one sees that different member states have been pursuing partly monistic, partly dualistic and partly monistic-dualistic solutions, and these solutions are more or less “Europe-friendly” in their structures.