Principle Of Strict Liability Research Articles

Strict Liability in Environmental Dispute Responsibility Before and After the Enabling of Omnibus Law

With the limitation of the principle of fault-based liability, which is not effective in the implementation of the responsibility for activities with high risk, Law No. 23 of 1997 concerning Environmental Management and Law no. 32 of 2009 concerning Environmental Protection and Management which adheres to the principle of absolute responsibility or strict liability. The regulation regarding the principle of strict liability is clarified in Article 88 of Law no. 32 of 2009 (UU PLH). However, with the passing of the Omnibus Law, which changed Article 88 of Law no. 32 of 2009 becomes article 88 of the Omnibus Law, which eliminates the principle of strict liability. This writing uses a normative approach, a statutory approach. The data analysis used is a qualitative analysis. The elimination of strict liability in resolving environmental disputes is considered a shift, which in the provisions of Article 88 of the Job Creation Law seems to provide an opportunity for corporations to pollute the environment without firm accountability. The government seems to protect the sustainability of a corporation more than the interests of the community. The type of research used in this study is using normative legal research methods using a statutory approach and literature study.

Application of Strict Liability Principles Against Illegal Karst Rock Mining Leading to Environmental Damage

Illegal mining of karst rocks in Gunungkidul Regency is increasingly rampant, resulting in environmental damage and casualties. The proposed problem is how can the principle of strict liability be applied to illegal karst mining actors? What is the concept that should be done in the future to abolish illegal karst rock mining to prevent further environmental damage? The research was a socio-legal study with primary and secondary data. The research was conducted in Gunungkidul, Indonesia by taking samples in the village of Ponjong. The results of the study showed that the perpetrators of illegal karst rock mining so far have never been imposed to the principle of strict liability. Ironically, there have been no objections from the public so far against mining companies. The community around the mining area is employed by the company, while the needs of the community are met. Hence, no protest occurred even though the mining caused environmental damage. The concept that should be carried out in the future to prevent further illegal mining is the improvement of law enforcement. Although action has been taken against illegal miners with revocation of permits, a reformulation of regulations by imposing criminal sanctions on perpetrators is necessary to become a deterrent.

The Implementation of the Strict-Liability Principle to the Perpetrators of Forest and Land Burning

The massive forest and land fires in Indonesia have been raging and caused haze disaster. The haze disaster is not suffered only in Indonesian territory, but it has become a transnational disaster resulting in extensive economic and health quality losses. In addition, the disaster has led damage to agricultural land and disruption of diplomatic relations among affected states. The number of perpetrators of forest and land fires that increase annually shows that the enforcement of criminal law is relatively ineffective. This article covers the problem whether the principle of strict liability can be applied to the perpetrators of forest burning. In 2019, forest fires in the Jambi Province had took placed in estimated 165.86.58 hectares. The forest fire is the main source of transnational haze disaster. Law enforcement on forest fires in Jambi has not provided a deterrent effect yet. There are forty-six companies acquiring fires in their concession land areas. Unfortunately, only four of them reached court proceedings and only two companies were declared guilty by the court. Therefore, as a deterrent effort, the principle of strict liability can be applied as the main principle to handle perpetrators of forest burning.

Strict Liability Principle Application in the Management of Straits Marine Pollution for International Navigation according to the Indonesia Sea Convention Law

Congested crossings going vessels in the strait used for international navigation such as the Malacca Strait, allowing the serious pollution of the sea water in the strait. How does the application of the principle of strict liability in the management of marine pollution in the Straits used for international navigation under the Convention on Law of the Sea 1982 in Indonesia? This research is a normative law, the main approach in legislation (statute approach), with the source material through the law library research. Indonesia has ratified the Convention on the Law of the Sea 1982 through Law no. 17 In 1985 the Indonesian government should establish laws that regulate a legal product on the management of marine pollution in particular in the straits used for international shipping considering Indonesia as an archipelago crowded waters traversed by large foreign ships in an easy and highly probable do pollution at sea. The application of the principle of strict liability is appropriate and relevant use in marine pollution liability for damages in the Straits used for international shipping as Idi Indonesian waters in the Strait of Malacca and the weapon system of archipelagic sea-groove Indonesia because Indonesia as favorable to the State Island Countries. compensated by the mean absolute responsibility, obligations to pay compensation to the beach arises immediately upon the oil spill in the sea without regard to guilt or innocence tanker or ship traffic in the Strait of Malacca done by using the right of transit passage and responsibility for compensation is associated with a number of limited liability or the ceiling or ceiling system.

COVID-19에 따른 SAJ 선박건조계약상 관련 불가항력 조항 적용 가능성에 대한 연구

Domestic shipyards should consider risk factors such as infectious diseases such as COVID-19, MERS, etc., currency exchange rate changes, global economic plunge, war, and strikes in the course of completing new ship building related to individual projects as new projects such as eco-ship, the emergence of Maritime Autonomous Surface Ships, the installation of offshore wind turbines, and the complexity of marine unmanned vehicles under IMO 2020. Therefore, the shipowner and the shipyard, which are key parties to the ship building contract, must carefully examine the scope, subject and conditions of the force majeure clause to prepare for future risks. However, officials from shipyards, finance, shipbuilding and marine equipment companies, law firms, and academia, which are linked to the new shipbuilding orders, have conducted considerable reviews of toxic clauses related to shipping or offshore platform construction contracts in the past, but have not conducted relatively in-depth research on the provisions of Force Majeure. It also fails to process or specify that, in the event of unforeseen circumstances, such as COVID-19, There is a legal difference in the scope of granting exemption from contractual liability by Force Majeure, depending on whether the governing law is continental or common law. Therefore, this study attempts to analyze the applicability of the Force Majeure Clause in the Contract of the SAJ through a legal review of the Force Majeure Providence Clause contained in the SAJ, which applies the Strict Liability principle of the Contract under the common law. And by analyzing the legal issues between the shipowner and the shipyard related to COVID-19, the company tries to find the risks and improvements that domestic shipyards will bear in the future.

Politica of Criminal Law; The Importance of Revision of Mineral and Coal Law: Who Is Benefitted

Minerals and coal are state owned assets that need to used wisely, although the People's Representative Council (DPR) is yet to ratify them for the 2020-2025 period during the COVID-19 pandemic that has ravaged the world, including Indonesia. The review of the Mineral and Coal has caused many draw backs because it does not follow the principle of balancing and sharing regional authority. This study discusses the principle of strict liability as stipulated in Law No. 3/2020 by examining the urgency for changes and who will benefit from the revision. Doctrinal research was used for analyzing the politics of criminal Law in the Mineral and Coal, both before and in its amendments. Furthermore, Law No. 4/2009 ensnares many people that carry out illegal mining because the mechanism and procedure for the popular Mining license is the same with the mining license of the companies. The content of the amendments to the Mineral and Coal only regulates the sale of 51% foreign shares, but from a criminal perspective and nominalization of criminal fines and the reduction of prison sentence, it can be seen that the new criminal concept does not have a significant meaning for business corporations, as the suspects so far have been people that have been mining in the form of community mining.

Implementation of Strict Liability Principle in Civil Law Enforcement in Environment Law files as Consequence of Forest and Land Fire in Indonesia Justice Practice

Strict liability is a concept of civil liability that does not require mistakes made by the defendant but rather defendant has caused losses to the plaintiff. Strict liability can help enforcement of environmental law that is oriented towards prevention. This is because strict liability can change the behavior of potential injurer to be more conscientious in performing their activities. The effectiveness of strict liability in supporting these ideals can certainly be realized if we first can correctly interpret the concept of strict liability. Strict liability is well known in the practice of civil justice in Indonesia in relation to the elements of error in the lawsuit based on Acts Against the Law in Article 1365 of the Civil Code (BW). Although the elements of objective and subjective errors are irrelevant if the action of the perpetrator is an activity with risk that whether the perpetrator has made a preventive effort and has been careful does not meant that risk is eliminated (abnormally dangerous activity). The application of strict liability in relation to civil law enforcement in the field of environmental law, especially as a result of forest and land fires in judicial practices in Indonesia is based on the provisions of Article 88 of Law Number 32 of 2009 concerning Environmental Protection and Management (UUPPLH) as in the case of land fires in PT. (Incorporated) Arjuna Utama Sawit which runs its business activities in controlling and opening land for oil palm plantations.

Legal analysis on application of strict liability in oil palm plantation fire cases in Indonesia

Forest fire cases become the main issue in Indonesia in the period of 2015-2019. The impacts resulted by the land and forest fires are extraordinary, not only affecting the people of Indonesia, but it has also spread to disrupt the activities of the community in Singapore, Malaysia and Thailand. The community is also infuriated by the occurrence of forest and land fires continuing from year to year. The public negative opinion is then aimed to the oil palm companies considered as the main cause of the fire occurrence. The community considers that the oil palm companies are still burning in order to clear the land. Therefore, is it true that the oil palm companies are the ones to be responsible for the fire as the community believe and can the strict liability principle be applied if fires occur in their areas?

AN OVERVIEW OF STRICT LIABILITY OFFENCES AND CIVIL PENALTIES IN THE UK’S ENVIRONMENTAL LAW

The UK has incorporated the strict liability principle in dealing with the environmental offence in its legislations. However, the principle application has some detrimental impacts. This article aims to discuss strict liability crimes in the UK’s environmental legislations and civil penalties in the UK, the detrimental effects of applying its principle and the reasons for supplementing criminal penalties for environmental offences with civil penalties. This will be done through the adoption of a doctrinal legal research method. The incorporation of strict liability principle in the UK’s legislations can be found in the Environmental Protection Act 1990, the Water Resources Act 1991, Part 2A of the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010 (SI 2010 No. 675). The detrimental effects of the principle application are the ignorance of mens rea element, unfair trial, ineffective environmental damage prevention, and contradictory to release right. The reasons for applying civil penalties of criminal law violation in regard with violating environmental law are this punishment is possible to be imposed on companies, it strengthens another kind of non-criminal sentence sanction, it is a peaceful solution, a polluter may manage by himself to repair the damage, it has no stigma on the polluter and it has wider law enforcement form. There is a dearth of literature looking at the latest UK’s legislation incorporating strict liability principle application. This article will fill this literature gap.

The Application of the Strict Liability Principle in The Indemnity Laws for Livelihoods in Indonesia; Analysis of The Supreme Court’s Decision Number 1794K/PDT/G/2004

AbstractThis study is applied a descriptive-normative method which used to explain, describe, and analyze a particular event that is a proceeding submitted by the plaintiff against environmental pollution and damage, namely landslides on Mount Mandalawangi, using the concept of illegal acts The results of this study are: First, the compensation applied in the case of the Mount Mandalawangi landslide is based on the strict liability principle. The implication of the theory stated that the injured complainant is not required to prove the mistakes made by the defendant. Even if the defendant can prove that he is blameless, but there is a clear and proven impact of the loss in court, the defendant still obliged to pay for the compensation. Secondly, the Supreme Court's cassation decision is in accordance with the provisions of the prevailing laws and regulations in Indonesia, especially in the case of illegal acts, both confirmed in Article 1365 of the Civil Code (KUHPer) or regulated in the Protection Law and Environmental Management (UU-PPLH).Keywords: Environmental law, strict liability, claim for compensation, Supreme Court

Examining child protection practice in New South Wales: Non-accidental injury and the principle of strict liability

AbstractThis article examines child protection practice when the Department of Communities and Justice in New South Wales takes the view that an injury to a child is non-accidental. The position taken in this paper is that once a child protection caseworker takes the position that an injury is non-accidental, then a strict liability or absolute liability approach is adopted. In effect, any of the child’s parents or caregivers are identified as persons who may have caused the injury or harm. What follows is the decision that a child must never be restored to the parents or caregivers, unless a person confesses to causing the harm and completes specific child protection counselling. Our concern is with the process of investigation, the reliance on one medical opinion in a context where the parents or caregivers are not in a financial position to obtain a second opinion, the failure to observe the rules of evidence when considering medical opinion, and the manner of substantiation of the non-accidental injury. In addition, we argue that there is a lack of knowledge about the factors that influence a paediatrician’s decision-making and that the guidelines for judicial decision-making derived from case law need to be examined further.

Strict Liability Principle: Consumer Protection from Hidden Defective Products in Indonesia

Weak supervision on the standardization of the quality of goods products, the negative impact of the use of technology, and fraudulent products cause an increase in hidden defective goods products in the current era of globalization. The phenomenon of the existence of hidden defective products increasingly demanding the importance of the role of government to regulate, supervise and control to create a legal construction of product responsibility for consumers, which normatively does not exist yet. The concept of consumer protection due to hidden defective goods is a new thing that has never been explained in Indonesian literature. The purpose of this paper is to analyze the hidden defective products phenomenon, and the legal basis on the principle of responsibility is applied. Strict liability of produces due to loss of hidden defective goods products as an effort to protect consumers in Indonesia. This research uses the normative analysis method by using secondary data as primary data through the statute approach, philosophical approach, and historical approach. The results of this study show the importance of legal products that can provide consumer rights without reducing the rights of produces. The need for a legal basis for the product liability principle with the principle of strict liability to claim the responsibility of a produces through developing the doctrine of tort as a basis for demanding compensation due to hidden defective goods from the outstanding produces on the market. For this reason, it is recommended as a consideration, namely normative amendment to the law of the Republic of Indonesia number 8 of 1999 concerning consumer protection as a short-term step, while the long-term step is to issue a special law that regulates the absolute responsibility of produces due to loss of defective products hidden in the future.

The doctrine of liability fixation of state responsibility in the convention on transboundary pollution damage

Transboundary pollution is an international problem. There are currently no adequate mechanisms under international law to balance the relationship between state sovereignty and state responsibility for transboundary pollution harm. The doctrine of liability fixation is at the core of state responsibility and plays an important role in transboundary environmental harm. What type of responsility, fault liability or strict liability should be adopted in state responsibility for transboundary pollution harm? Scholars have different viewpoints on this key issue, and states may have fundamentally different positions and differ widely in terms of both policy and substantive issues. There is uncertainty and variability in the drafting of international conventions on transboundary pollution harm. This article focuses on the normal international legal rules regarding the principle of imputation, and it analyses the advantages and disadvantages of adopting the principles of strict liability and fault liability, their value and the relationship between state responsibility and civil subject liability. This article aims to explain why it is necessary to change the direction of the doctrine of liability fixation of state responsibility in the convention on transboundary pollution harm, and it considers a new direction to adapt to the complex interests and demands of various countries. From the perspective of furthering the prevention of pollution and determining compensation for harm and constructing liability regimes for transboundary pollution, this article proposes the doctrine of the liability fixation of state responsibility and analyses the relevant trends and possible available options.

Liability Determination of School Sports Injury Accidents: An Analysis Framework Based on Evolutionary Game.

In recent years, the outbreak of many school sports injury accidents aroused widespread public concern about liability determination of accident. Previous studies have examined the legal application of the liability principles from a law perspective, but few kinds of research attempted to analyze the progress of liability determination from the perspective of “law economics”. To fill this research gap, we introduce the evolutionary game model, as an important theoretical tool of “law economics”, to investigate how various factors influence the strategy selection of the parties, as well as examine what liability principle can effectively treat school sports injury accidents. The results indicate that the strategic selection of the subject of liability is significantly related to the accident compensation cost and the prevention cost of both parties. Moreover, we also find that both strict and proportional liability rules can play key roles in dealing with the issue of liability determination of school sports injury accidents, but the two liability rules have different effects on the strategic selection of parties. More specifically, compared to the strict liability principle, the proportional liability principle can motivate both the school and the students to adopt the active strategy of “appropriate caution” to prevent occurring sports injury accidents in schools.

Legal Nature of Bad-Faith Suppliers (Contractors, Providers)

The article considers legal nature of the bad-faith suppliers (contractors, providers) register institute. Maintenance of the register is subject to Federal law On contract system in procurement of goods, jobs and services for provision of public needs. The author points out and analyzes formalistic and essential approaches to understanding of the institute nature. The conclusion is substantiated that making entries in the register is an administrative action. When a decision of the persons data inclusion into the register is taken, it is necessary to determine essential elements of the offence destroying the presumption of innocence. Approaches to determination of the guilt of the participant in purchasing are studied in comparison. They are developed through law enforcement practice. Thereby, some specific private law features of the considered institute are revealed in the article. Actual use of consequences of the persons data inclusion into the register according to the strict liability principle and necessity to dispose of this approach are emphasized. Protective nature of the bad-faith suppliers (contractors, providers) register institute is studied.

Does the U.S. Constitution Constrain State Products Liability Doctrine?

The time may have come to extend the U.S. Supreme Court’s drive to constitutionalize the domain of speech torts into the field of products liability. This paper considers a pointed way of testing the viability of such a move: decisions recognizing an exception to the learned intermediary doctrine whenever manufacturers of prescription drugs or medical devices advertise directly to consumers, which seems to represent a fairly blatant violation of federal constitutional protections for commercial speech. Venturing into far more debatable territory, this paper then suggests that certain consumer goods closely connected to the exercise of fundamental rights—including but not limited to contraceptives—might deserve additional protection from the operation of well-established principles of strict products liability. If, however, that comes across as too radical an idea, then perhaps the longstanding constitutionalization of speech torts must remain distinctive, which also means that developments in the law of defamation can offer little assistance to those commentators who promote the notion that the Second Amendment should infiltrate the law of torts.

PENERAPAN ASAS POLLUTER PAY PRINCIPLE DAN STRICT LIABILITY TERHADAP PELAKU PEMBAKARAN HUTAN

The environment is a very important part of human life. Therefore, the destruction of the environment, especially the destruction of forests, must be overcome. One method of doing this is through the enforcement of the environment law. Increasingly, the awareness in the enforcement of environmental law is also growing, as evidenced by the enforcement of environmental law through strict liability and polluter pay principle approach. The principle of Strict liability and polluter pay principle in the enforcement of environmental law in Indonesia is regulated in the provisions of Articles 88 and 87 of Law No. 32 of 2009 on Environmental Protection and Management. However, the problem remains as the application of the principle of strict liability and polluter pay principle has not reached its full effectivity in the enforcement of environmental law in Indonesia. Based on these two principles, the perpetrators of environmental destruction, namely the forest burners, are responsible for losses caused by their deeds. Therefore, this research will discuss the application of strict liability principle and polluter pay principle in enforcing environmental law against forest burning actors.

The Role of Environmental Insurance as the Prevention Effort of Environmental Pollution

Various efforts have been developed to reduce the environmental pollution, such as the approach of policy, company management, and social support. In the level of policy, there is a corporate social responsibility as formulated in Law Number 40 of 2007 on Limited Company besides the system of environmental impact analysis (AMDAL) as regulated in Law Number 32 of 2009 on Environmental Protection and Management. In the level of law enforcement, the principle of strict liability demanding the doers give an impact on the environment showing that they are not responsible for the reverse verification system as the intended efforts. In the level of company management, the introduction of ISO 14000 as the management system that places the environment as the basis for its implementation is another approach attempting to reduce the level of environmental pollution. However, the level of environmental pollution is not decreased significantly. The concept of environmental insurance implementation is the effective way to reduce the environmental pollution.

The Beneficiary Pays Principle and Strict Liability: exploring the normative significance of causal relations

I will discuss the relationship between two different accounts of remedial duty ascriptions. According to one account, the beneficiary account, individuals who benefit innocently from injustices ought to bear remedial responsibilities towards the victims of these injustices. According to another account, the causal account, individuals who caused injustices (even innocently) ought to bear remedial duties towards the victim. In this paper, I examine the relation between the principles central to these accounts: the Beneficiary Pays Principle and the well-established principle of Strict Liability in law. I argue that both principles display a strong yet unexplored similarity as they make certain kinds of causal connection sufficient for incurring liability. Because of this similarity, I suggest that insights into the Beneficiary Pays Principle can be gained from exploring its relation with Strict Liability. In particular, I examine two new positive arguments that could be adapted to support of the Beneficiary Pays Principle: the Minimising Injustice Argument and the Normative Connection Argument. However, I’ll show that only one of those arguments, namely the Normative Connection Argument, can truly support the Beneficiary Pays Principle. I conclude that, if you endorse the Normative Connection Argument for Strict Liability, you have at least a strong prima facie reason to endorse the parallel argument for the Beneficiary Pays Principle.

A Strategy of Attrition through Enforcement: The Unmaking of Irregular Migration in Malaysia

This article reviews Malaysia's attempt to achieve zero migration irregularity by focusing on workplace enforcement, and examines how Malaysia's migration control has become a struggle between the state and employers. Applying the framework of “enforcement through attrition,” this research examines three newly introduced principles governing workplace enforcement: employer sanctions, the Strict Liability Principle, and the Employers’ Mandatory Commitment. The shift to employers in Malaysia's attrition landscape aims to control illegal employment, thereby frustrating the friendly environment to affect migrants’ behaviour. The Malaysian experience suggests that increasing legal consequences for employers hiring undocumented workers runs parallel with making them accountable for the welfare of their foreign workers, thus ensuring better protection of migrant rights. Drawing upon data from semi-structured interviews, government documents, regulations and online news media, this paper empirically analyses the new policy's effects and implications. The findings suggest this deterrence model has a positive effect on the existing documented migrants, demonstrating an increase in both legal employment and in wages for the existing legal migrant workforce.