Objective Liability Research Articles

Historical background of the factors of attribution of civil liability, starting with Napoleon's Civil Code of 1804 and its reception in the Colombian Civil Code of 1873. The special case of the objective regime for hazardous activities

Gaius' inclusion of the figure of quasi-crime had a great impact on the subsequent conception of the glosadors and the natural law regarding civil liability; the difficulties in differentiating this figure from crime contributed to the subjective conception of responsibility, embodied in Napoleon's Civil Code. French doctrine and jurisprudence created an objective liability factor based on the risk of the fact of things. This did not happen in the same way in Colombia; Don Andrés Bello's code was not a copy of the French Code, its author took into account other sources and did not incorporate into the code a general rule of responsibility for the fact of things. In light of the historical account of the receipt of the factors for attribution of civil liability, it is impossible in Colombia to support the theory of risk in article 2356 CC col.

A responsabilização de empresas por acidentes de trabalho no judiciário trabalhista de São Paulo - TRT15

Abstract The risk theory or objective liability dispenses proof of guilt or intent and requires only the occurrence of damage and the causal link. Although the constitution establishes the responsibility for work accidents as subjective, it has been observed in the doctrine and in the judiciary the adoption of objective liability in some cases of accidents and occupational diseases. This study aims to analyze the decisions of the Regional Labor Court of the 15th Region - São Paulo to know in which situations the court has used objective liability. The quantitative-qualitative, exploratory and descriptive research was developed based on document analysis and literature review. The document research was carried out in judgments that contained the descriptor “work accident,” available in the database of the Regional Labor Court of the 15th Region, judged between 11/11/2015 and 10/11/2017. The results indicated that, of the total of 559 cases judged, in 275 the decision was founded, being 15% by objective liability. Considering only the founded cases, objective liability appeared in 30.5% of them. This percentage reveals that decision-making based on the notion of objective liability is already expressive in this court, and that such adoption has the potential to affect accident prevention practices.

Defensive versus evidence-based medical technology: Liability risk and electronic fetal monitoring in low-risk births

Technology-intensive birth practices are a hallmark of the overmedicalization of birth. For example, obstetricians routinely use continuous electronic fetal monitoring (EFM), even though this technology is not evidence-based, has a high rate of false positives, and does not improve outcomes in low-risk deliveries. Providers often argue that they must use EFM to protect themselves from malpractice liability, making it a form of defensive medicine. But does variation in actual liability risk contribute significantly to the use of non-evidence-based medical technology like EFM? This study uses multi-level logistic models to examine the effects of malpractice laws and lawsuits on EFM in low-risk births from 1995 to 2003. The models test the hypothesis that state-level variation in liability risk should influence the probability of EFM use. The models reveal that the probability of reporting EFM is higher when states artificially reduce liability risk by capping damage awards, suggesting that objective liability risk does not promote routine EFM and may deter it. In fact, caps on damages limit providers’ legal exposure without doing anything to encourage higher quality care. It is possible that states without tort reforms place greater emphasis on patient rights, safety, and quality of care. On the other hand, by reducing liability risk without encouraging improvements in quality, tort reform laws may inadvertently promote more technology use.

Responsabilidade civil: a equidade como parâmetro para fixação da indenização no caso de excessiva desproporção entre a gravidade da culpa e o dano

Civil liability is among the most instigating, complex and relevant themes of Modern Law, including the Brazilian one. The research aims at analyzing the reflexes of equity foreseen in the sole paragraph of article 944 of the Civil Code of 2002 in the scope of civil liability. The 2002 Code,compared to the 1916 Civil Code, is considered an open normative document, full of general clauses and undetermined legal concepts. Equity, among other meanings, as a corrective to the law, can be seen as the justice of the concrete case. Provided for in the 2002 Civil Code, equity confers, in line with the principle of operability, an expansion of the interpretive power of the judge. This reveals that its systematic study is important, especially focusing on its influence on the principle of integral reparation of damage inherent to civil liability. The method used is the hypothetical-deductive one, based on legislation, doctrine and jurisprudence. It concludes that, in the area of civil liability, the equity provided for in the sole paragraph of Article 944 of the Civil Code of 2002 constitutes an effective parameter for establishing compensation in the event of excessive disproportion between the seriousness of the fault and the damage, whether in relation to subjective or objective liability. Keywords: Equity. Indemnity. Judge’s interpretive power. Principle of operability. Civil liability.

Perspective of conferring objective character to contraventional and criminal liability for deeds causing environmental damages

In the situation when the ways of harming the environmental components have lately become more sophisticated and difficult to detect and endanger the existence of man on earth, the legal mechanisms of environmental protection should also change their appearance and become much more aggressive and ruthless. They should be applied without taking into account certain rules and presumptions behind which the perpetrators have long been hiding. Although both criminal law and contravention law cannot disregard the principle of the presumption of innocence, the principle of humanism, the principle of individualization of liability, currently they must be overshadowed in favor of substantiating the principle of objective liability for environmental damage in all forms of liability. For this, the consecration of the given method of liability must be based on serious and difficult to combat arguments, which arise from the specifics of the damage, the findings, damage assessment, disclosure of the perpetrator, as well as the irreversibility of the affected environmental components.

Građanskopravna odgovornost za štetu koju počini robot pri vršenju medicinskog zahvata

Robots in medicine, unlike industrial automation, can be viewed as an extension or enhancement of human capabilities. The legitimacy of robotics in the health care system stems from the fact that its use increases the efficiency of the treatment process and improves the health of an individual. On the other hand, involving robots in the medical procedures brings a high degree of risk and liability for damage. Legal doubts that arising in regard of the use of robots in medicine are related to civil liability for damage caused to the patient during the medical procedure. In that context, it is necessary to determine the model of indemnity liability that applies to damages due to the action of robots in a medical procedure. Which system shall be applied: the system of subjective liability based on fault (guilt), or the system of objective liability without determining the injurer's fault? This issue is gaining in importance given the degree of autonomy of robots in performing medical procedures. The paper will emphasize the need for legislative intervention in the Croatian legal system in order to adapt to the growing use of robots in medicine. The paper will summarize the results of the analysis on these issues and offer possible solutions in court practice and legal dogmatics.

Liability Insurance as a (Social) Response to the Changing Regulatory Framework: From Prohibited to Compulsory

The article analyzes the relationship between the institutions of liability and liability insurance, aimed at identifying the modalities of their interaction. Insurance indisputably affects the development and scope of tort law, but this influence is not one-sided. At the present development level it has been noted that liability insurance also plays an indispensable role in indemnity litigation. The development path of liability insurance shows that the developed legal order entails two mutually compatible systems. Whilst objective liability for damages is the response to numerous activities that render realistic the possibility of causing damage to others, regardless of whether the damage could have been avoided through cautious behavior, liability insurance is the response to the changed regulatory framework, which leads to liability reaching unprecedented proportions. Therefore, the author concludes that insurance does not threaten to substitute the principle of compensatory damages with the logic of loss-spreading.

Seguimiento de la evolución del concepto filipino de responsabilidad extracontractual en el contexto de la inmunidad estatal contra la demanda: ¿es necesario un nuevo enfoque?

Filipinas y España, en un momento de la historia, compartieron el mismo código civil. Sin embargo, en el ámbito de la responsabilidad extracontractual (agravios en el derecho consuetudinario, cuasi-delitos en el derecho filipino) en relación con los servicios públicos, los dos sistemas jurídicos tienen actualmente un enfoque muy diferente. Por un lado, Filipinas se adhiere al concepto del derecho consuetudinario de inmunidad estatal contra demandas, lo que hace que sea casi imposible para las personas demandar al gobierno o sus agencias en los casos en que el acto u omisión que causó el daño se entrelaza en el ejercicio del gobierno de funciones gubernamentales España, por otro lado, aplica una responsabilidad estricta u objetiva con respecto a la prestación de servicios públicos por parte de la Administración Pública. Esto hace que la negligencia sea irrelevante en la cuestión de si un individuo puede reclamar contra el gobierno por daños relacionados con los servicios públicos.En este artículo, el autor rastrea los orígenes y la evolución de la ley continental del concepto filipino de cuasi-delito (el término utilizado en Filipinas para referirse a los agravios u obligaciones extracontractuales), somete estos regímenes legales a diferentes filosofías legales y usos. la lente del análisis económico de la ley para determinar si Filipinas necesita reconsiderar la doctrina de la inmunidad estatal en el contexto de la responsabilidad extracontractual por daños relacionados con los servicios públicos.Recibido: 05.11.2019Aceptado: 20.12.2019Publicación en línea: 03.07.2020

Critical considerations on Artificial Intelligence liability: e-personality propositions

O presente artigo objetiva discutir a noção de responsabilidade pelos atos praticados por entidades inteligentes artificialmente. Incumbe ao primeiro tópico a análise e definição do termo inteligência artificial, enquanto o segundo pretende discutir e teorizar as diretrizes da responsabilidade em sentido amplo dessas entidades. Ao final, propõe-se que, apesar de tais entidades possuírem certo grau de autonomia, inexiste a presença de subjetividade em seus desígnios. Portanto, atribuir a causa e responsabilidade pessoalmente aos atos ilícitos cometidos por uma IA pode inviabilizar a produção científica-jurídica e legal. Como meio alternativo, propõe-se a incisão de uma responsabilidade objetiva para eventual resolução dos litígios que possam surgir a partir deste contexto. Ancora-se o presente raciocínio nos métodos de pesquisa dedutivo e integrado, bem como na hermenêutica legislativa.

Concepts and Signs of Risk in Entrepreneurship

The article is devoted to the study of the concept and features of risks in entrepreneurship. The points of view of scientists concerning the concept of risks are analyzed, two main concepts of risk are outlined: classical and neoclassical. The focus is on several risk concepts in the context of the doctrine of objective liability for damages: integral risk theory, theory of spheres, risk-benefit theory. The article systemizes the existing approaches to the essence and content of such a phenomenon as a risk in entrepreneurship: (1) risk is interpreted as uncertainty, indeterminacy, attribute of decision-making in a situation of uncertainty; (2) the risk is defined as the probability of deviation of the actual result from the expected; (3) the risk arises as an activity; (4) the risk is treated as the threat (danger) of deviation of the results of specific decisions or actions from the expected; (5) risk is interpreted as a system (complex) of individual components and elements (integrated approach). Different points of view of researchers concerning the signs of entrepreneurial risks are considered, author's signs of risk in entrepreneurship are singled out. Two ways of further development of the economic legislation in the part of legal support of freedom of entrepreneurship, as well as risk inherent in it, business risk management, etc. are proposed.

Strict liability Regime in Poland

The article focuses on administrative violations, which are considered to be based on strict (or objective) liability model. Due to the lack of in-depth scholarly analysis of administrative liability, its principles had to be developed in the case-law of the Constitutional Tribunal, which influences the decisions of administrative courts. The recently introduced provisions of the Code of Administrative Procedure concerning administrative monetary penalties are also analysed. The conformity of this model with the guarantees provided by the European Convention on Human Rights is examined, as well. The analysis leads to the conclusion that three exculpatory circumstances are recognized in this regime: force majeure, necessity and ensuring the standard of diligence established by the Constitutional Tribunal.

Odnos Kelzenovog i Živanovićevog shvatanja odgovornosti - jedna obećavajuća paralela

The concept of legal responsibility (liability) implies a violation of the dispositive norm and subjecting the offender to envisaged sanctions. Legal responsibility is based on three key elements: the subject, the object, and the legal grounds of responsibility. The legal state (Rechtsstaat) is inconceivable without responsibility, which is present in all areas of law. In constitutional law, it is reflected in the legal and political responsibility of the state authorities. Civil and criminal liability differ in terms of sanctions. In civil law, there is subjective liability based on culpability and objective (strict) liability. As a consequence of committing a crime, criminal liability includes two elements: sanity and guilt. While guilt is a subjective element of a crime which cannot be avoided, criminal liability can be avoided. According to Kelsen, the subject of legal responsibility and the legal obligation are equivalent. He distinguishes between subjective liability based on culpability and absolute (objective) liability. This distinction rests on the individualistic ideal of justice. Logically, the sanctions also differ in these two cases. Kelsen also recognizes collective responsibility (especially of legal entities), which is always absolute. In civil law, the subject of obligation and the subject of liability correspond. Živanović provides detailed accounts on the concepts of delict, delinquent, and sanction. According to Živanović, a delict (in all branches of law) is a violation or endangerment of a subjective right. A delinquent, i.e. the infringer of legal norms, is the object of sanction. In analyzing the concept of sanction, he identifies seven distinctive elements of a sanction. The comparison of Kelsen and Živanovic's conceptions of legal responsibility yields notable results. Both authors were aware of many aspects of legal responsibility. In spite of the obvious terminological differences, they essentially discuss the same legal issues. When observed jointly, these two authors provide a wide-branching "scheme" of both legal responsibility in general and area-specific liability in particular.

FULL PROTECTION AND SECURITY STANDARD IN INTERNATIONAL INVESTMENT LAW

The subject of the study is the analysis of the application of the Standard of Full Protection and Security of Foreign Investments in international arbitral practice. It is an absolute standard that is contained in almost all international investment agreements and that has been established through arbitration practice, regardless of the variety of language expressions referred to in investment agreements. The objects of protection under this Standard can be both investors and investments and it establishes a dual obligation for the states. On the one hand, there is the obligation of active action to prevent and remedy a violation or to punish perpetrators, and on the other hand, there is the obligation to refrain from any activities that may hurt foreign investment. This paper deals in particular with the three issues that are decisive for the application of the Standard in practice. The first is the issue of the relationship between this Standard and other standards of protection of foreign investments, in particular the Standard of Fair and Equitable Treatment, as well as to the minimum standard of protection enjoyed by foreign investors and their investment under international customary law. The second is the issue of standard content, whether it applies only to physical protection and security, or includes wider, legal protection and regulatory protection, security and stability. The third question relates to the degree of protection and security, i.e. whether this Standard implies the objective liability of the host country or whether it has to deal with due diligence, depending on the circumstances of each case. The paper analyses all publicly available decisions of international arbitration tribunals as well as scientific literature dealing with this Standard and points out the prevailing attitudes about these three key issues as well as their implications for the protection of foreign investments.

Taking responsibility: self-attribution for risk creation and its influence on the motivation to engage in risk management behaviors

Many risks (eg, climate change, poor health, plastic pollution) can be the result of human behaviors. Although anthropogenic risk creation is rarely intentional, it is still possible that in many circumstances individuals will recognize some degree of personal responsibility for creating the risk and, therefore, may perceive a moral obligation to manage that risk (eg, reducing carbon emissions, eating a low-fat diet, boycotting single-use plastics). However, the extent to which risk management behaviors are motivated by self-attribution for risk creation has received little empirical attention. To address this issue, a study was conducted in which participants responded to three scenarios (road safety, environmental, animal welfare) that each described a situation in which a particular risk developed and in which the participant’s liability for creating the risk varied. Participants then responded to measures of self-attribution for risk creation, perceived risk, objective liability, guilt, moral standards and willingness to manage the risk. A multiple regression showed that the only significant predictor of the participant’s willingness to manage the risk was self-attribution for risk creation. Moreover, further analysis showed that the positive relationship between self-attribution for risk creation and the willingness to manage the risk was moderated by perceived risk. Hence, individuals who accept greater responsibility for creating a risk may be more willing to engage in actions to manage that risk, and his/her willingness is also likely to increase as his/her perception of the risk increases. These findings provide new insights into the motivational forces underlying risk management behaviors and highlights important directions for future research and risk communication strategies.

Tort Policy in a Plural Context: Pathways Towards Objective Liability in UAE Tort Law

Abstract This article approaches tort policy contextually, as an argument around actually available alternatives within a historically-specific legal tradition, like that of the United Arab Emirates (UAE), which combines French civil law influence with roots in Islamic law. The article examines alternative tunings of the requirements of tort liability, in view of cases where a technically sophisticated investigation is required to ascertain what precautions the tortfeasor might have taken to prevent injury. For this purpose, it takes as its point of departure a careful assessment of the availability of the “extraneous cause” exception in UAE law, which allows defendants to avoid liability by demonstrating the occurrence of a causal factor outside their sphere of control. To understand when this exception ought to be available, the paper engages in critical dialogue with French doctrines on tort liability, distinguishing a fault-based “subjective approach” from an “objective approach” (strict liability). These doctrines also speak to Arab jurisdictions that have adopted a civil code (like the UAE), modelled after the French one. The article therefore proceeds to situate the tort regime in the UAE Civil Code with respect to those French doctrines. With respect to these, the UAE Civil Code takes an intermediate position drawn from Islamic law. However, additional provisions, e.g. on liability for nuclear installations or for machinery of which a person is in charge, demonstrate a timid reception of the objective approach. The article proposes a reform of UAE tort liability on the basis of the objective approach, which is robust even in complex cases, where an investigation around causation would risk being inconclusive. Finally, the paper considers the additional possibility of arguing for a voluntary assumption of liability on the part of the tortfeasor, as yet another way of orienting tort liability in the UAE towards an objective approach.

De la responsabilidad civil a la seguridad social: el fundamento jurídico del seguro italiano contra los accidentes de trabajo y las enfermedades profesionales

<p>El paso del ordenamiento jurídico liberal basado en la paridad formal de las partes contratantes al Estado social moderno fundado en la protección del trabajador, estuvo acompañado de profundos debates y discrepancias acaloradas sobre la compatibilidad de las primeras formas de protección de la seguridad social con las normas del Código Civil italiano. A menudo, la dificultad inicial de comprender el verdadero significado de este nuevo instrumento de protección social llevó a encuadrarlo erróneamente dentro de las tradicionales categorías civilistas. </p>

Protokol o građanskopravnoj odgovornosti za štetu i naknadi štete uzrokovane prekograničnim efektima industrijskih udesa na prekograničnim vodama

Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters (the Protocol) was adopted in 2003 under auspices of The United Nations Economic Commission for Europe (UNECE). The Protocol aims to give individuals affected by transboundary impact of industrial accidents on international watercourses a legal claim for adequate and prompt compensation. The Protocol channels liability towards operators performing hazardous activity. Operators will be liable for accidents in an installation, including tailing dams, as well as accidents during transportation on the site of a hazardous activity or during off-site transportation via pipelines. The notion of damage is broadly defined and encompasses loss of life or personal injury, loss of, or damage to, property, loss of income, the cost of measures of reinstatement of the impaired transboundary waters, and the cost of response measures. The system of the Protocol is based on objective liability. However, strict liability rule is somewhat alleviated by a limited set of exemptions and by financial limits of liability depending on the risk of the activity. Liability limits are coupled with mandatory financial security requirements.

Odgovornost za štetu koju životinja prouzrokuje prema Prednacrtu Građanskog zakonika Republike Srbije

Animals, like people, can cause damages. Who shall be held liable for it, on which basis, and who shall be obliged to compensate for it? The domestic Law on Contracts and Torts does not provide a decisive answer to the questions posed, and the multiannual judicial practice has treated animals as dangerous things for whose behaviour, as a rule, the owner, i.e. the holder, has been held liable according to the principle of objective liability. The Serbian Draft Civil Code, in principle, confirms the domestic jurisprudence practice. Taking as a starting point the amendments of French, Austrian, German and Swiss Civil Codes that qualitatively differently regulate the status of animals since animals are not any longer observed as things, but as sensitive beings, so the regulations referring to such property apply to them, unless they are not excluded with the regulations regulating their welfare. In the paper, we shed the light on liability for damage caused by animals exactly through the prism of the new approach in legal treatment of animals.

Razvojni rizici - određenje u pravu Evropske unije i opravdanost implementacije u srpsko pravo

This paper analyses one of the most important and current issues related to the liability of the defective product producer, given that this form of liability has gained importance as a result of the development of consumer rights, the emphasis being on development risks as one of the bases for the exoneration of the producer as a responsible person. After a brief presentation of the liability of the producer of the defective product, the focus of the paper shifts to the institution of development risks, which is presented first from the aspect of the Directive on Liability for Defective Products in which it first appeared, while analysing the views of the European Court of Justice and all open issues thereof, as well as the recognition of its advantages and disadvantages. The final chapters of the paper examine whether development risks alter the legal nature of the producer's liability, i.e. whether they lead to the penetration of subjective elements into his traditionally objective liability, and analyse the justification for introducing this institution into the Serbian legislation, with the identified advantages and disadvantages.

Objektivna odgovornost za štete u medicini i prevencija povrede pravila zdravstvene struke - liječničke greške

In legal theory and jurisprudence in the Republic of Croatia, the prevailing view is that compensation for damage in healthcare should be judged according to the principle of quilt. In relation to damage caused by dangerous goods or hazardous activities in medicine, the most prominent tendency is the application of objective liability for damage. In this respect, the decision of the Constitutional Court of the Republic of Croatia is of par­ticular importance, as the basis for changing the practice of regular courts when it comes to liability for damage caused to a patient due to dangerous goods or hazardous activity. The model which is applied around the world, primarily in the Scandinavian countries, New Zealand and the United States, is the principle of compensating the damage sustained by the patient, the so-called 'no fault-no guilt' model or 'no fault compensation scheme' (compensatory pattern without guilt). This model entails administrative and not civil procedure. In all no-fault systems, medical errors need to be registered in order to avoid similar situations in the future. These models provide for high transparency of the healthcare system and they aim to provide quick and just financial compensation without long-standing court proceedings and high costs.