Liability System Research Articles

Outsourcing of Accounting Services: Consideration of Contractual Aspects

In Ukraine, the culture of contracting outsourcing services is not yet fully developed, which in turn leads to a fuzzy understanding of the responsibility of the parties to such relationships, and therefore the security of their partner cooperation in the domestic market. The purpose of the research is to develop the main provisions of the Contract on outsourcing services as a guarantee of the responsibility of the outsourcing company for violating the confidentiality, timeliness, completeness and quality of the work performed in order to ensure the economic security of the enterprise-customer of such services. The structure of the Model Agreement on outsourcing services (which is the most comprehensive, expanded and systematically provides the system of liability of the parties to the agreement) is proposed, as well as the conditions that reduce the risk of disclosure of information constituting confidential information and trade secrets in the course of the use of maintenance services accounting outsourcing company. The results of the research substantiated the expediency of conducting a number of organizational measures among the employees of the outsourcing company (getting acquainted with the clauses of the Agreement regarding the non-disclosure of commercial secrets, ranking the levels of access to customer information, etc.), which contributes to the maximum protection of all types of information and, accordingly, the quality of provision outsourcing services for the business efficiency. In general, the proposed instruments contribute to the precise regulation of partnership relationships when outsourcing to the development of a culture of drafting such agreements, which in turn leads to a clear understanding of the responsibilities of business parties, which is the foundation of the investment attractiveness of domestic business entities for the global community.

The Defence of Provocation – Where Are We Now?

The legal development towards treating provocation and emotional stress as factors that may create reasonable doubt as to the presence of criminal capacity is not only novel but revolutionary. Essentially, the law has recognised that a person who causes the death of another can be acquitted of murder, despite suffering no mental illness or defect at the time of killing, if evidence points to provocation and/or severe emotional stress at the time of the commission of the killing leading to a loss of criminal capacity.This dynamic approach is based on the psychological or principle-based approach to criminal liability, which is founded on the idea that unless an individual possesses the capacity or the fair opportunity to regulate her behaviour in accordance with the requirements of the law, she should not be liable for the unlawful consequences of her behaviour. In terms of the psychological or principle-based approach, where any subjective element of criminal liability is lacking, the accused cannot be convicted of the offence in question. The particular focus of this note is non-pathological incapacity or “emotional collapse”, which has been attributed to emotions such as fear, shock and anger. In this regard it is notable that the Rumpff Commission report expressly held that, in contrast to cognitive and conative functions, which can exclude capacity, and thus criminal liability (see further below), “affective emotional disturbances” do not per se do so, “especially if the behaviour of the person concerned gives or has given evidence of insight and volitional control”. Nevertheless, where such “affective emotional disturbances” contribute to a lack of either cognitive or conative capacity, they are indeed relevant to liability.Criminal capacity or “toerekeningsvatbaarheid” is one of the cornerstones of the system of criminal liability.

New Rules on Patient's Safety and Professional Liability for the Italian Health Service.

The phenomenon of clinical negligence claims has rapidly spread to United States, Canada and Europe assuming the dimensions and the severity of a pandemia. Consequently, the issues related to medical malpractice need to be studied from a transnational perspective since they raise similar problems in different legal systems. Over the last two decades, medical liability has become a prominent issue in healthcare policy and a major concern for healthcare economics in Italy. The failures of the liability system and the high cost of healthcare have led to considerable legislative activity concerning medical malpractice liability, and a law was enacted in 2012 (Law no. 189/2012), known as the "Balduzzi Law". The law tackles the mounting concern over litigation related to medical malpractice and calls for Italian physicians to follow guidelines. Briefly, the law provided for the decriminalisation of simple negligence of a physician on condition that he/she followed the guidelines and "good medical practice" while carrying out his/her duties, whilst the obligation for compensation, as defined by the Italian Civil Code, remained. Judges had to consider that the physician followed the provisions of the guidelines but nevertheless caused injury to the patient. However, since the emission of the law, thorny questions remain which have attracted renewed interest and criticism both in the Italian courts and legal literature. Since then, several bills have been presented on the topic and these have been merged into a single text entitled "Regulations for healthcare and patient safety and for the professional responsibility of healthcare providers".

Legal Review of the Liability Framework for Remote Sensing by Looking at the Global Navigation Satellite System (GNSS)

Compensation for losses in the law is certain and the civil liability system is designed to respond to this need. Nowadays, it is necessary to check compensation in different fields, and specialists in each field are seeking data to recognize liability issues and even reduce the risk of liability in their work. The legal recognition of the subject is necessary because the field of remote sensing and mapping is one of the fields with many activists and plays an important role in various aspects of the life of the community, but many people still do not have any data about their rights, and even those involved in this field as producers or consumers does not have legal data on this issue, and due to the involvement of this data in the lives of individuals and the existence of relevant cases in the judiciary. Therefore, the accurate recognition of this issue will cause questions in this field to be answered in law. And lawyers and judges can also rely on the recognition and analysis of this issue to avoid error and work more efficiently.Key words: Liability, Remote Sensing, Fault, Global Navigation Satellite System (GNSS)

Medical Professional Liability in Gastroenterology: Understanding the Claims Landscape and Proposed Mechanisms for Reform

Physicians enter the medical field to improve patients’ quality of life by optimizing health outcomes, and often build long-term relationships with their patients as a result. But even the most conscientious physician may become the subject of a medical professional liability (MPL) claim at some point during his or her career. Fear of medical liability is often cited as a prominent driver of medical overuse and a contributor to ballooning health care costs. Although challenging to precisely quantify, the annual cost of the medical liability system is estimated at >$55 billion, equivalent to ∼2.4% of total national health care spending.

In a Cage of Law: Liability Imputation System in the Tort Law on Kept Animals – A Chinese–German Comparative Study

The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability. The imputation of liability for damages caused by kept animals found in China’s Tort Law is a unique, synthetic, and multidimensional dual system. On the one hand, hazard-based liability is the dominant factor, and on the other is fault-based liability the auxiliary factor. The Tort Law on kept animals is oriented towards the types of liability for damages caused by kept animals, rather than towards categories of animal types, and it categorizes liability degrees under both normal and special circumstances. While underlining the merits achieved by this liability imputation system in terms of its structure (on the macro-level), this Article also probes into the problems and difficulties arising out of some key junctures (on the micro-level), especially as the system is put into practice and its operational complexity is revealed. Because of the strong affinity of the Chinese civil law, and especially tort law, with its German counterpart, this Article references the German tort law on animal keeper’s liability for an historical and comparative legal analysis, bringing more light to the Chinese system of liability.

Corporate Criminal Liability and Compliance Management Systems

AbstractThe present work analyses the case of Spain in relation to Compliance Management Systems and Corporate Criminal Liability. It studies the way criminal justice understands and uses Compliance Management Systems to target corporate criminality. Moreover, it aims to deconstruct the way Compliance Management Systems are implemented in different corporations. To that end, I conducted a series of semi-structured interviews with Compliance Officers and performed content analysis on judicial documents. While not being able to generalise or give definite conclusions, the results showed a misconnection between the aim of criminal law provisions and the profit-driven objectives of corporations. Furthermore, results unveiled the powerful motivation of requirements. Companies sought to implement Compliance Management Systems to access new markets, better supplies and insurance fee discounts. Rather than the threat of punishment the analysis indicated a stronger effect through the positive stimuli of requiring a Compliance Management System for a benefit. The study also showed a fear for the reputational consequences of being subjected to a criminal procedure, thus indicating a better predisposition to solve offences through alternative conflict resolution methods. The lack of a clear message from the criminal justice reduced the deterrent effect of punishment. This lack of clear standards may have fostered social disorganisation within the environment of corporations, thus constituting fertile ground for corporate crimes.

The Right of Privacy and Freedom of the Press: The Concept of Legal Justice in Indonesia

This study aims to describe the problems faced by the party who feels aggrieved or impaired by his personal rights due to media coverage. The dilemma arises because based on the legal system of the press, the media are given protection from lawsuits. This is to guarantee the position of freedom of the press in a democratic system. However, the impact that has been caused due to defamation cannot be resolved simply by using the right of reply. This study aims to explore how legal mechanisms provide justice for victims due to media behavior in line with the principle of press freedom in Indonesia. The results show that the Indonesian Press Law does not have a clear system of legal liability. The rule of conduct in the Press Law is absolutely not regulated. Thus, the right of reply that is contained in the media consciousness or "order" of the Press Council is not a binding and final decision because the Press Council's body only gives an opinion. Violation of the ethics of the press should not only have a moral sanction but also a legal sanction with all its consequences.

Legal measures to prevent and manage soil contamination and to increase food safety for consumer health: The case of Spain

This article contains a brief overview of the European and Spanish environmental law framework for the prevention of soil contamination, for the management of contaminated soils and for consumers health protection in relation to agricultural crops. Some important aspects of the legislative framework for the prevention and management of soil contamination include recognising the possible risk to both human health and ecosystems that certain agricultural and industrial activities pose given the use of organic and inorganic chemical substances of a hazardous nature and pathogenic microorganisms. It is worth highlighting the milestone that many national constitutions include about the right to the environment. This right entails the obligation to protect it and to, therefore, protect soil from any degradation, including contamination. Legislation that protects soil from contamination and, consequently human health and ecosystems, is related mainly to agricultural activities (use of sewage sludge on farmlands, use of wastewater for irrigation, use of organic fertilisers and pesticides), and to industrial and commercial soil-contaminating activities. Consumer protection may be achieved through a legal system of environmental liability, specific measures to prevent contaminants entering soil, managing contaminated soils and a food traceability system. It is crucial to make the penalties for soil contamination offenses, and for violators of protective prohibitions, effective, proportionate and dissuasive. Global standards and guidelines on soil contamination could provide national legislative systems with substantive and procedural legal mechanisms to help prevent and manage soil contamination.

Assigning Liability In An Autonomous World Together With Reforming The Law According To The Modern Advances In The Medical Field

Due to the blooming advancement of technology, the application field of robotics became manifold. From performing surgeries, to shooting trespassers or babysitting our kids, robots started to dominate news headlines. Given the fact that this general intransigence progressively became visible within all sectors, much hype has been engendered towards the growing concern of its legal implications. Even though the Commissioners, along with the critics and lawyers, have taken dutiful note of it, the general body of current legal principle still remains a myth. Mainly focusing on the increased risk of a surgical error, and the injuries it might produce, the following sections of this paper try to recognize and stabilize the up-coming liability challenges. As different scenarios give rise to different type of liabilities, the upshots of using surgeon robots can generate two outcomes. Firstly, since a robot is not seen as a liable legal person, the liability switches from the manufacturer to the surgeons operating the robot. Thus, the responsibility gap, focused in this project, will shift between two areas of law: tort liability and product liability. Even though product liability and tort liability are already in place, an additional layer of obscurity comes from these ‘untested’ areas of law in respect to the budding field of robotics. Therefore, this paper will explore the atypical difficulty in establishing the boundaries between the two ‘regulatory liability-box’, as well as proposing new set of laws in order to create a more transparent legislation. The integrant emphasis here will be to impose a liability system of ‘corrective justice’ classified in terms of two distinct approaches.

Autonomously driving cars and the law in Germany

The article informs about the regulation for partly or fully autonomously driving cars in Germany which the legislator enacted in 2017. The new provisions and amendments are discussed in detail. However, the existing liability system for road traffic accidents remains essentially unaltered. Also, the insurance regulation remained untouched. In order to exploit the advantages of the new technology which is not yet fully developed and will be available in future, further legislative steps are needed.

Analysis of International Norms and Domestic Norms for Corporate Environmental Protection Responsibility from the Perspective of Public Management

As a cell of society, enterprises create productivity while making the ecology worse and threatening the survival of human beings. In the face of increasing global environmental problems, the community has reached a consensus that enterprises should consciously assume their environmental responsibility. This paper analyzes the legislative overview of corporate environmental liability system in the United States, Germany and Japan and the path of post-polluting governance, analyzes the real dilemma of China, and draws on the relevant norms of how to improve the environmental responsibility of Chinese enterprises from the path selection.

Enforcing of environmental liability system in Russian federation and foreign countries: ways of legislation’ improving

Enforcing of environmental liability system in Russian federation and foreign countries: ways of legislation’ improving

Corporate Conception in Terrorism Based on Act No. 5 Of 2018

Enforcement strategies terrorism has changed from that previously used the law enforcement strategy reactive (reactive law enforcement) to the law enforcement proactive (proactive law enforcement). Enforcement strategies are proactive expected to reach the corporate as well as those who are behind it as the founders, leaders and corporate board into the hands of the main perpetrators of criminal acts of terrorism.The purpose of writing is to know the conception of the corporation in criminal acts of terrorism and how the system of corporate criminal liability in criminal acts of terrorism under the Act No. 5 of 2018.Act No. 5 of 2018 recognize the corporation as a subject or as a criminal. While the forms of criminal acts committed by a corporation is the criminal acts committed by individuals. Thus the corporation can be said to be committing a crime as stipulated in the formulation of a criminal offense if the offense is committed by people on the basis of employment, or other relation, either individually or jointly, acting for and on behalf of the corporation in and outside the corporate environment.The setting is the principal criminal fines against corporations show that the conception of the corporation in criminal acts of terrorism under the Act No. 5 of 2018 is the third model is the corporation as a maker as well as corporate responsibility.Keywords: Corporate; Accountability; Terrorism.

The legal duty of candour in healthcare: the lessons of history?

Providers of health and social care in England are under a statutory duty to be open and honest with patients who suffer harm when receiving care or treatment. This ‘duty of candour’ was introduced by regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and is one of 13 fundamental standards of care regulated by the Care Quality Commission (CQC). This was hailed as a landmark for openness in patient–professional relationships and as having the potential for enhancing a safety culture in healthcare. However, the decision to supplement existing ethical duties and policy initiatives encouraging openness with a statutory duty was contentious and encountered considerable medical resistance. This paper will trace the background to the legal duty, analyse its contents and consider its enforcement and potential obstacles to its effectiveness. Our analysis will foreground resistance based in practitioners’ and healthcare institutions’ fear of litigation and prosecution in the UK. However, opposition to candour emerged within the medical profession prior to the emergence of modern liability systems. This paper will argue that in order to create a culture of candour it is important to look beyond the more commonly identified professional concerns about litigation and understand these historical trends. In particular, we argue that a longer-term understanding of medical resistance to openness has important lessons for the likely effectiveness of the legal duty of candour.

No-Fault Versus Strict Liability Compensation Systems in Medical Malpractice Law in Vietnam in Comparision with Belgium, France, and England

Abstract Medical malpractice is a form of professional negligence and such a negligence forms part of the law of tort. As an alternative to the tort or fault-based system in medical malpractice, a no-fault compensation system has been viewed as having the potential to overcome problems inherent in the tort system. This is through the provision of fair, speedy and adequate compensation for medically injured victims. A no-fault compensation system allows patients to be compensated without proof of provider’s fault or negligence. Similar to no-fault schemes, the strict liability system is not fault-based although it belongs to tort law. Successful claims are paid in a uniform manner using a fixed benefits schedule and include compensation for both economic and non-economic (pain and suffering losses) without the necessity of proving negligence through a tort claim. This study focuses on the comparison of no-fault compensation systems versus strict liability systems between Vietnam to Belgium, France, and England. The distinctions in Belgium, France, and England can be the lessons for the development of a no-fault compensation system as well as strict liability system in Vietnam.

The need for healthcare reforms: is no-fault liability the solution to medical malpractice?

Healthcare reforms in India have been a much-debated issue in the recent past. While the debate has focused mainly on the right to healthcare, another by-product that has evolved out of the debate was the current problem of medical malpractice and the healthcare law. The last decade has seen an increase in the healthcare facilities in the country. This, however, has come with a bulk of medical error cases which the courts have entertained. According to reports, there has been an increase in medical litigation cases by 400% in the last decade. There are about 5.2 million cases of medical error in the country every year. While there exists a standard legal system in the country which entertains such complaints of medical malpractice, the attempt by regulators and medical practitioners should be to reduce these cases. This paper seeks to analyze the extent to which medical malpractice cases affect consumers (patients). It analyzes the existing medical liability system which has mainly evolved through the jurisprudence laid down by the English courts and critiques it. It also looks into the major reasons for such medical mishaps. Authors argue that a "No-Fault" system may give better outcomes. They analyze this by looking at the no-fault liability model implemented in New Zealand. Narratives of no-fault liability being implemented in India have also been used. These are showcased from instances of Motor Vehicles Act, 1988, and Clinical Trial regulations. It is also argued that a by-product of a no-fault liability system is stringent regulations which are used to reduce the possibility of medical mishaps altogether. Lastly, the possible problems of the no-fault liability system are discussed in the paper.

Civil Law Liability of Parent Companies for Infringements of EU Competition Law by Their Subsidiaries

The article investigates the impact of the use of the concept ‘undertaking’ in the EU Antitrust Damages Directive on the civil law liability of parent companies for infringements of their subsidiaries and more general on other natural and legal persons forming part of the same undertaking. The research shows that the Directive and other rules of EU competition law leave room for an interpretation that allows Member States to maintain additional criteria for liability such as imputability, adequacy or culpability to prevent the transposition of the competition law theory of parent company liability into civil law. The way in which Member States have dealt with the issue of the civil law liability of parent companies when transposing the Antitrust Damages Directive differs. Some Member States explicitly introduced a system of parent company liability, others remain intentionally or unintentionally vague about the question. Ultimately, it will be up to the Court of Justice do decide whether the Antitrust damages directive read together with other rules of EU competition law requires Member States to transpose the competition law theory of parent company liability into civil law. To prevent parent companies from using subsidiaries to limit their competition law liability and to encourage them to ensure competition law compliance by their subsidiaries, the transposition into civil law of a slightly amended competition law theory of parent company liability appears desirable.

Improvement of the liability system of public officials as a factor of professional development

Improvement of the liability system of public officials as a factor of professional development

Climate Change, Environmental Threats and Cyber-Threats to Critical Infrastructures in Multi-Regulatory Sustainable Global Approach with Sweden as an Example

This article explores and analyzes the nexus between climate change, environmental threats, and cyber-threats in a multi-regulatory contextual sustainable global approach with Sweden as an example. Research and collection of material have been conducted with the precise aim to draw a parallel between environmental regulations and the cyberspace and cybersecurity systems. Many aspects of the cyber-security system are not known and are highly fragmented. Selected points of the study of the Swedish cyber strategy are being developed in parallel to the environmental regime in order to better understand how to improve the effectiveness of the cyber complex regime from a contextual perspective. One way to better understand the cybersecurity system is to make an interdisciplinary study of how best to coordinate these systems, thus making both cyber law and policy more effective. This leads to bringing evidence on how to take inspiration from a regime system (environmental law or, more concretely, the environmental liability framework) and using it as source of inspiration to understand and shape the formation of another system in another area, namely cybersecurity. The method of this ongoing research consists of choosing and applying key aspects of environmental law (such as concepts and principles) and comparing them with comparable selected cybersecurity key aspects, which are selected because they present strong similarities with their “equivalent” focal points pertaining to the environmental system. When conducting this comparison, multi-level governance is applied too, which means analysis of the sources of law and policy existing at Global/Regional/National (local) levels in order to understand the interactions between different levels. The analytical task of the research consists of choosing some focal points from the environmental liability system that are very similar and comparable to those of the cyber regime.