Liability Provisions Research Articles

The Effect of European Union Law on the Criminal and Quasi-Criminal Liability of Legal Persons in Estonia

The punitive competence of the European Union encompasses both criminal law and, in the form of administrative sanctions, quasi-criminal law. Now undergoing vast changes amid rapid development, the latter field of Union legislation is anything but systematic. The sporadic evolution of EU punitive law recently led to the European Court of Justice judgement in the case Deutsche Wohnen, wherein the substantive provisions for liability of legal persons in Germany were found to be in contradiction with European Union law. The article gives an overview of the European Union’s legislation on criminal and quasi-criminal liability of legal persons, presents reflections on the Estonian experience, and articulates conclusions from the Deutsche Wohnen case.

CEO early-life experience and corporate accounting conservatism: Insights from the socio-political context

Using China's Cultural Revolution as a shock to risk attitude, this study investigates the effect of CEOs' early-life experience on corporate accounting conservatism. We find that CEOs who experienced the Cultural Revolution in their early life are more risk-averse and conservative, and thereby are associated with a higher level of accounting conservatism. Such a positive relationship is more pronounced in provinces with higher political risks, e.g., where the provincial leadership changes and where high-profile provincial bureaucratic corruption cases occur. Also, the positive effect of CEOs' early-life experience is stronger in SOEs where CEOs' political career concerns are more pronounced. Additional analysis suggests that CEOs with early-life Cultural Revolution experience are more likely to adopt conservative accounting practice, such as increasing firm's provisions for liabilities and reducing accrual-based earnings management. Our results add new evidence to support the upper echelons theory and imprinting theory by highlighting the enduring impact of influential socio-political events during early life on the decision-making processes of CEOs.

“Pecunia Olet” (Sometimes): A comparative analysis of Italian and UK legislations on combating the infiltration of organised crime into the economy

This article conducts a comparative analysis of Italian and UK legislations concerning the infiltration of organised crime into the economy. Considering (among other things) the concerns about allegedly weakened cooperation between judicial authorities of Italy and the UK in a post-Brexit era, the study evaluates the alignment of legal frameworks of the compared systems in combating the integration of organised crime and economic crime. The analysis is conducted on four levels: direct criminalisation of organised crime, the use of (also) anti-terrorism legislation to tackle organised crime, measures against wealth accumulation through crime, and provisions for corporate liability. By comparing the legal systems of Italy and the UK, which represent civil and common law traditions respectively, this study aims to identify convergences and divergences in legal approaches. The findings could inform strategies for enhancing mutual trust and fostering more effective international cooperation in combating the infiltration of organised crime into legitimate businesses, particularly in the post-Brexit context.

Reducing risk of sexual harassment: a positive duty of care

The oil and gas sector has made progress towards becoming safer and more respectful for all employees. However, recent public reports, including the Western Australian Parliament’s ‘Enough is Enough’, and increasing engagement from National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA), continue to demonstrate that sexual harassment remains pervasive across the industry – 32% of people still experience sexual harassment in their workplace. The social, physical, psychological, and financial costs of sexual harassment are devastating, both to individuals and employers. The damage can carry long-term business and reputational consequences. All Australian employers are under a new, legally enforceable positive duty to take ‘reasonable and proportionate measures’ to prevent sexual harassment. It requires proactive steps to ensure sexual harassment is prevented from happening in the first place. Vicarious liability provisions have been expanded so that employers can now be held accountable – even if no complaints are lodged. Employers require a clear framework to ensure they are meeting their positive duty obligations. There are three key areas that can enable the oil and gas sector to strategically leverage their compliance activities, maximising benefits for their business and for their people. These key areas include: (1) capability and engagement of leaders and management; (2) understanding the risk factors and drivers of sexual harassment for the industry, and for individual organisations; and (3) understanding employee experiences of psychological safety, culture, and behaviours.

Developing a conceptual technical framework for ethical AI in procurement with emphasis on legal oversight

This study presents a conceptual technical framework aimed at promoting ethical AI deployment within the procurement domain, with a particular focus on legal oversight. As the integration of artificial intelligence (AI) technologies in procurement processes becomes increasingly prevalent, concerns surrounding ethical considerations and legal compliance have come to the forefront. The framework outlined in this study offers a structured approach to addressing these challenges, emphasizing the importance of legal oversight in ensuring ethical AI practices. Drawing on existing literature and best practices, the framework outlines key components and principles for guiding the development, implementation, and monitoring of AI systems in procurement contexts. Central to the framework is the recognition of legal requirements and regulatory frameworks governing AI deployment, including data protection laws, liability provisions, and procurement regulations. By incorporating these legal considerations into the design and operation of AI systems, organizations can mitigate risks and ensure compliance with applicable laws. Additionally, the framework emphasizes the need for transparency and accountability in AI procurement processes, advocating for clear documentation, audit trails, and stakeholder engagement mechanisms. Furthermore, the framework outlines strategies for ethical AI design, including the identification and mitigation of algorithmic bias, the promotion of fairness and equity, and the protection of privacy rights. By embedding ethical principles into the development lifecycle of AI systems, organizations can foster trust and confidence among stakeholders while minimizing the potential for harm or discrimination. Overall, the conceptual technical framework presented in this study provides a comprehensive approach to promoting ethical AI in procurement, with a specific emphasis on legal oversight. By integrating legal requirements, ethical principles, and technical considerations, organizations can ensure that AI deployment in procurement processes is conducted responsibly, transparently, and in accordance with legal and ethical standards.

Regulatory Recognition of Commercial Space Flights

The author of the research article raises current legal issues regarding the regulatory challenges associated with the commercialization of outer space, with a particular focus on space tourism. The study aims to solve the legal dilemma of the lack of a legal framework that would define commercial spaceflight because this problem creates ambiguity in the understanding of the phenomenon of space tourism and raises concerns about the regulatory way of space exploration by private companies. The methods of analysis consist of the benefit of theoretical aspects of international space law for the designation of a mutual understanding between commercial interests and the principles of space exploration. The obtained results of the study lead to the conclusion that the main factor that inhibits the implementation of proper legal regulation of commercial space activity is uncertainty in the application of one or another law to regulate flights with space tourists, which, in the opinion of the author, should be eliminated employing regulatory direction on the proper legal regime, a clear definition of the boundary between outer space and air space, the weight of the norms of international law as opposed to the applications of states regarding the expediency of the norms of national law. The author's solution is the initiative for the governance of the unsettling areas through contractual arrangements. This idea is due to the results of the study about the predictability of the potential loss of relevance of international space law for the regulation of commercial space flights, therefore the auxiliary role of contract law is delivered. For its implementation, the author emphasizes the prospect of maintaining a regulatory course on (i) management of property rights, (ii) management of space resources in the direction of prohibition of appropriation and commercial colonization of celestial bodies; (iii) provisions for liability in the event of flight anomalies, safe rescue accidents, and the return of space tourists.

«БЕЗПЕЧНА ГАВАНЬ» У ПРОЄКТІ ДИРЕКТИВИ ЄВРОПЕЙСЬКОГО СОЮЗУ ПРО НАЛЕЖНУ ОБАЧНІСТЬ ЩОДО КОРПОРАТИВНОЇ СТАЛОСТІ

Over the last decade, the mandatory legislation that requires large companies to conduct due diligence for the social, environmental, and ethical risks within their economic activities and to manage those risks efficiently has been rapidly expanding across Europe. On 23 February 2022 the European Commission unveiled a proposal for a Directive on corporate sustainability due diligence. Following numerous amendments adopted by the European Parliament on 1 June 2023, the proposal now enters negotiations with the EU Council and member states for further refinement. The proposal introduces mandatory human rights and environmental due diligence (mHREDD) which establishes provisions for corporate liability when companies meeting the employee number and turnover criteria specified in the proposal fail to adhere to due diligence obligations, causing otherwise avoidable harm. The adoption of mHREDD transforms the prevention of harmful impacts on human rights and the environment from a voluntary practice of companies into a normative standard of their conduct. Therefore, compliance with the Directive's requirements will become part of a company's compliance as an internal process aimed at ensuring adherence to existing norms and rules. A large proportion of companies targeted by the proposal, while appearing cooperative, seek to weaken the future rules through the corporate lobbying. Among the tactics used to undermine the law is lobbying the so-called “safe harbour” exemption. With a “safe harbour” exemption, the legislature sets out criteria that, if met, could exclude liability and the corresponding ability of claimants to bring action. In the context of the proposal of the Directive “safe harbour” means that a company shall be released from all legal actions upon proof that it had carried out a legally valid due diligence assessment. Safe harbour exemption is contrasted with the use of due diligence as a procedural defence, which the defendant company can plead and seek to prove in court. The proposal’s implications are important for Ukraine considering its status as a candidate country for EU membership. Ukrainian companies, unlike those in the EU countries, lack experience of operating within the framework of corporate social responsibility and non-financial reporting to build upon, and the culture of corporate sustainability is in its nascence. A “safe harbour” approach, under which when the company has seemingly complied with the due diligence process (which might be a mere “tick-box exercise”), it will not be held liable for the harmful effects of its activities, will have devastating impact for the development of corporate sustainability tradition in Ukraine.

Civil Liability of Stem Cell Banks

Objective: This research examined the civil liability of stem cell banks. It studied the phenomenon with reference to the Jordanian Civil Code, particularly in the instructions issued under the stem cell system, within the instructions for insurance of stored stem cells and its amendments of 2014.
 
 Method: The descriptive analytical approach was used through extrapolating and analyzing the legal texts regulating the obligations of stem cell banks and the terms of the agreement related to contracts for storing and preserving stem cells, and deriving civil liability provisions accordingly.
 
 Result: The Jordanian legislator did not define the contract for preserving and storing stem cells. It recognized the necessity of financial compensation for damage to stem cells. However, it did not address the obligation to compensate for material or moral damage if the bank breached its obligation to deliver stem cells for the purposes of treatment.
 
 Conclusion: Stem cells are at the forefront of research in the medical fields, as stem cells have been proven to provide solutions to incurable diseases, such as cancer, Alzheimer’s, diabetes, and other diseases.

Turkish Product Liability Law from the Perspective of European Law

Abstract Product liability has been, and continues to be, a problematic area in Turkish law. Prior to legislative attempts to introduce strict product liability, producers could only be held liable based on their fault. Although liability based on fault cannot provide appropriate solutions to all product liability problems, the Turkish Court of Cassation was in the process of establishing case law that was suitable to most product liability issues. However, this development was interrupted by problematic legislative attempts to introduce strict product liability, which became the focus of academic literature on product liability. The final of these legislation attempts is the Product Safety and Technical Regulations Act of 2020. In this Act, product liability and product safety rules are intertwined with each other. This is problematic for product liability provisions, since concepts and rules that should remain in product safety law are transferred to product liability law. The Act claims to be in line with the Product Liability Directive of 1985. However, this is far from accurate. The Act fails to harmonise Turkish law with the Product Liability Directive of 1985, let alone offer solutions to problems that have become apparent since 1985. This article attempts to highlight the product liability issues caused by the Act and interpret its provisions in a manner that is as compatible with European law as possible.

Breach of obligations under contracts for the sale of goods and supply of digital content in European Union and Ukrainian law

The content of the research lies in an analysis of the legal prescriptions of the legislation of the European Union and Ukraine, which determine the liability of the parties for breach or improper performance of obligations under contracts for the sale and purchase of goods and supply of digital content. With the help of general and special philosophical methods, the possibility and legal consequences of applying the liability provisions of the relevant articles of the Civil Code of Ukraine, to the contractual relations of purchase and sale of goods and the supply of digital content (violation of the contract of sale by the seller and the lessee, copyright infringement, etc. are discussed. ) It is concluded that in order to harmonize the Ukrainian legislation with the legislation of the European Union, the provisions of individual drafts and Directives of the European Parliament and the Council, which regulate the specific sphere of legal relations, were analyzed. Special attention was paid to the implementation of the draft Law on Digital Content and Services and its compliance with the basic principles of private law in this area, established on the basis of the values of the European Union.

Legal Regulation of Civil Liability for Environmental Damage: How Appropriate are Civil Liability Provisions with the Privacy of Environmental Damage?

The study analyzes the nature of civil liability resulting from environmental damage, because the risk of environmental pollution is one of the dangers that cannot be counted or predicted. Therefore, it is difficult to determine the legal basis on which it is based in the field of pollution. Traditional wrong-based liability rules do not respond to the tort-based environmental policy objectives in order to avoid environmental damage and ensure effective protection for those affected. This made the provisions of civil liability in the Jordanian Civil Law no longer commensurate with the specificity of environmental damage, especially since the situation requires compensation for damage to the environment itself and to the health and property of individuals. In addition, it is not hidden that there are shortcomings in the provisions of the Jordanian Environment Protection Law No. (6) of 2017. Its provisions included preventive and remedial measures for environmental pollution without considering the issue of compensation for environmental damage in a manner consistent with the nature and specificity of this damage. This requires the development of these rules in a way that commensurate with the nature of environmental damage.

Provisions For Liabilities in Polish Business Entities In 2017-2021

The provisions created for future liabilities are the subject of this paper. The research was conducted on the basis of reports prepared by the Central Statistical Office in Poland in individual years from the period 2017-2021 and regarding the balance sheet results of business entities.

Criminal Law Means for Counteraction to Corruption in Ukraine and Poland

During the scientific research of any criminal-legal phenomenon or process, it is considered necessary to conduct an analysis of the origin of this phenomenon in a foreign country. This provides an opportunity not only to grasp the essence and understand the content of the subject of research, but also to develop effective countermeasures and borrow foreign experience. This becomes especially important in matters of combating corruption, when the criminal acts of officials reach not only domestic, but also international scales.Scientists’ positions, as well as the provisions of the current legislation in Ukraine and the Republic of Poland concerning the definition of the criminal law provisions for liability for corruption offenses are being researched, which is made on the relevant differences regarding the legislative enactment of the concept of “corruption” and its definition in the criminal law theory. Accordingly, a comparative approach to the methods of legislative consolidation of anti-corruption provides an opportunity to understand the social conditioning of the emergence of this phenomenon.Taking into account the integration processes in all spheres of life activity of society, the difference in the method of normative consolidation of actions forming such a phenomenon as corruption was revealed. This, in turn, not only indicates different forms of legislative fixation of the concept of the phenomenon, but also causes difficulties in the exchange of law enforcement practice, which causes a number of problems for both the relevant law enforcement agencies and ordinary citizens. A clear division and distinction between provisions on liability for corruption and corruption-related offenses was revealed.Taking into account the position of the domestic criminal law doctrine, the analysis of the current Polish legislation provided an opportunity to formulate real options for borrowing foreign experience to solve the specified problems.

Methods and means of committing illegal hunting as circumstances of proof in criminal proceedings (based on case law)

The present criminal and criminal procedural legislation, as well as the practice of application of the provisions on criminal liability for illegal hunting have been studied. As the study subject, the examples of case law have been chosen, which allowed to identify typical ways and means of committing a criminal offence in the presence of specific circumstances of their application. The correlation of substantive and procedural law provisions aimed at achieving the goal and fulfilling the tasks of investigating criminal offences against the environment has been analysed; recommendations on the practice of application of criminal liability provisions have been provided; the correct interpretation of the ways and means of committing illegal hunting based on the analysis of law enforcement practice has been ensured. Based on the analysis of law enforcement practice of some aspects of the criminal procedural component, the most common and typical means, methods (forms), and tools of illegal hunting used in encroachment on wildlife have been identified.
 It has been established that preparation for committing illegal hunting may include: choosing the time and place of illegal hunting; searching for and preparing illegal hunting tools and means; selection of accomplices to illegal hunting; and deciding on the prey. The typical ways of committing illegal hunting have been defined as follows: hunting without a permit (for hunting animals, for the use of firearms, etc.); hunting at prohibited times (during the periods prohibited for hunting of the respective species of animals, in the dark, etc.); hunting with the use of prohibited tools and prohibited methods (nooses, traps, nets, etc.); hunting in prohibited areas (on the territories and objects of the nature reserve fund, in reproduction areas, etc.); hunting for animal species listed in the Red Book. The above list of typical methods and tools for committing illegal hunting is not exhaustive, but is the most promising in terms of developing methods for their investigation. The most common tools used in illegal hunting are hunting (smoothbore or firearms) weapons, nooses and nets.

Collective Liability of the Member States of the Unified Patent Court Agreement

Collective Liability of the Member States of the Unified Patent Court Agreement

The BBNJ agreement and liability

The Biodiversity Beyond National Jurisdiction (BBNJ) negotiations are approaching the final phase, with significant urgency to conclude an agreement. But the current draft text lacks provisions for liability and compensation. This short communication investigates that absence, and its impact on consistency with UNCLOS and implementation effectiveness. It also considers existing models for liability and compensation, and questions why the Group of 77+China coalition has backed off its insistence on such provisions. In other words, the paper answers the “what,” “why,” and “how” for the inclusion of liability and compensation in the BBNJ agreement.

중대재해처벌법상 중대산업재해의 발생 현황 및 사례 - 건설산업을 중심으로 -

The Serious Accidents Punishment Act was enacted on January 26, 2021, and has been in effect since January 27, 2022. However, for businesses or workplaces with less than 5 full-time workers, the obligations or liability provisions regarding ‘serious industrial accidents’ in this Act do not apply.
 The purpose of this Act is to prevent major disasters and protect the lives and bodies of citizens and workers. Serious industrial accidents are industrial accidents defined in Article 2, subparagraph 1 of the Industrial Safety and Health Act, which resulted in the death of one or more people. Therefore, this Act has an important meaning in various issues throughout the industry.
 In particular, when this Act is applied to the ‘construction’ industry, its importance is further emphasized.
 According to the status of major industrial accidents from 2012 to 2021, there are significantly more deaths in the ‘construction’ industry than in other industries. In other words, by size of construction amount, ‘less than 5 billion won’ is the most, and by type, ‘fall’ is the most common. In addition, cases of various fatal accidents have been reported during the construction and dismantling of buildings and the use of construction equipment. Implications raised to be considered when the current law is applied are as follows: i) Exclusion of application to small and medium-sized enterprises, etc., ii) Ambiguity of the responsibility of the person in charge of management, iii) Necessity of discussion on the meaning of practical governance, operation and management. In this regard, amendment bills have been proposed to the National Assembly of the Republic of Korea and are currently under review.
 Therefore, at the actual construction site, the CEO/CSO or manager must thoroughly check whether the laws and regulations are observed and take necessary measures so that safety measures can be clearly implemented. In the construction industry, serious industrial accidents should be drastically reduced and safety culture should be properly established through communication and opinions of related parties to improve the problems of the current laws and regulations.

합성생물학 위험에 대한 민사책임법적 대응

This paper deals with issues related to the concept and characteristics of synthetic biology(engineering biology), its usefulness and risks, the regulation and management of risks, and the relief of damages caused by the manifestation of risks. In particular, civil liability issues that may arise in the course of synthetic biology research and its industrialization were reviewed.
 Due to the nature of synthetic biology, it is realistically impossible to prevent all damages incurred in the process even if the operator of the technology fulfills the duty of care in operation. Damage relief through the application of the general illegal liability provisions and the Product Liability Act based on the principle of negligence liability cannot be an effective means due to the difficulty of proof, the limited scope of application, and the possibility of exemption through defense of development risks. It may also be considered to reduce the victim's burden of proof through interpretative theories such as presumption of negligence and shifting the burden of proof.
 However, in the field of high-level science and technology, it can harm legal stability because there are considerable difficulties in proving fault and making judgments.
 Damages caused by risks inherent in synthetic biology technology should be compensated through laws of risk liability. In the course of research and technical operation of synthetic biology, a person who controls and manages a risk source (Gefahrquelle) is liable for damages even if he or she is not at fault in the event that the risk materializes and infringes on the legal interests of others, which is consistent with the idea of fairness. Due to the nature of synthetic biology and genetic engineering, unlike product liability, the defense of development risk is excluded, but the assumption of causal relationship must be acknowledged. Regarding the establishment of the maximum amount of liability, considering the structure of the Damages Compensation Act, which takes the principle of limited compensation, it is judged that it is right not to limit it.
 No legislation has been enacted on risk management and regulation related to synthetic biology. In the LMO Act, there is no provision for liability for damages. Right now, it can be said that it is realistic to establish new regulations in the LMO. In addition to enhancing global industrial competitiveness through the use of synthetic biology technology, it is also a challenge to respond to legislation related to risk management, regulation, and damage relief.

EXECUTION OF AN UNLAWFUL BINDING ORDER

The hierarchy, which is a necessary tool for state affairs to conduct a productive and effective way, causes the birth of subordinate-superior relationship between public officials and obliges subordinate to execute superiors’ orders. The order, which is obliged to be fulfilled without delay and without change, spreads to many areas of the legal order, so regulations are made on the subject with various laws and the legitimacy of the order is discussed. Liability provisions differ in terms of who gave the order and executed the order on the basis of the possibility that the order is lawful, unlawful and its subject constitutes a crime, and causes controversy. In terms of its content, an order that complies with the law is called the performance of the duty. However, the fulfillment of an unlawful but binding order that arises in some cases causes debates about responsibility. In this study, the legal nature of the illegal but binding order will be examined in detail. Keywords: supervisor, officer, order, illegal order, order execution, fault

Assesment of the Quality of Reporting Information on CO2 Emission Rights on the Example of Energy Sector Groups Listed on the Warsaw Stock Exchange

Abstract Poland is a participant to the European Union Emissions Trading System, which aims at reducing greenhouse gas emissions. Trading CO2 emission rights has become a strategic area from the point of view of managing entities that emit CO2. The aim of the paper is to investigate and identify discrepancies in the presentation and valuation of CO2 emission allowances, CO2 emission provision liabilities in reporting, and to assess the impact of these discrepancies on compliance with the true and fair view principle on top of the informative value of the financial statements. An in-depth qualitative analysis was used to examine disclosures of CO2 emission rights in the 2020 consolidated financial statements coming from the largest energy sector groups listed in the WIG Energy Index of the Warsaw Stock Exchange in light of the relevant legal acts and literature. As a result of the research conducted, it was confirmed that groups of companies carry out a range of CO2 emission rights balance classification and valuation. There were also significant discrepancies in the disclosure of information about the creation and valuation of provisions for liabilities due to CO2 emissions. The discrepancies observed in the audited entities’ balance-sheet presentations and valuation of the acquired CO2 emission allowances and reserves resulting from IAS/IFRS in practice distorts the comparability of data presented in the financial statements. The research also revealed differences in scope of disclosed information, as well as its fragmentary nature. As a result, the comparison of data between groups in the energy sector in terms of their assets is impossible. Our study fills a research gap on the effects of using IFRS for the presentation and valuation of CO2 emission rights in the Polish energy sector and the impact of a differentiated approach to disclosures on the true and fair view conception in financial reporting.