Liability System Research Articles

Are errors in otorhinolaryngology always a sign of medical malpractice? Review of the literature and new perspectives in the SARS-CoV-2 (COVID-19) era.

SUMMARYIn medical practice, during certain procedures that usually are not regarded highly demanding, some skill-based errors, that might not be considered as medical malpractice, may occur. In fact, such errors can be caused by factors beyond the physician’s control.A review of Greek case law regarding medical malpractice in otorhinolaryngology was performed to identify cases of lawsuits that concerned medical errors during routine procedures. The analysis of the cases showed that some medical errors may cause serious complications, even if deviation from the standard of medical care is minimal. Thus, in some cases it may be difficult to make a distinction between preventable and unpreventable complications. Certain medical errors from routine medical procedures might be considered unpreventable and, therefore, classified as almost no-fault errors. A brief commentary regarding opportunities to further improve the medical liability system after the SARS-CoV-2 emergency is also given.

부실감사에 대한 외부감사인의 책임체계와 개선방안

감사인의 손해배상책임은 자본시장법 제125조(발행시장), 제170조(유통시장), 외부감사법 제31조 및 민법 제750조에 근거하여 중복적·중첩적으로 발생한다. 법원은 각 법률간의 관계를 청구권경합으로 파악하고 있으므로 청구권자는 자신의 상황에 따라 청구권을 선택하여 감사인에 대하여 손해배상청구를 할 수 있다. 다만, 각 법률에 따른 책임 발생사유가 상이하고, 청구요건 중 특히 거래 인과관계(신뢰)요건의 필요여부, 인정의 정도 등에 관하여 차이가 있는바, 청구권별로 이를 구분할 필요가 있다. 한편, 감사인의 책임의 소멸기간은 각 법률별로 달리 규정되어 있는데, 이로 인해 감사인과 다른 배상책임 주체간의 규제차익이 발생하므로 소멸기간에 관한 입법 개선이 필요하다. 우리나라 법률체계와 책임의 균형의 관점에서 감사인의 책임을 다룰 필요가 있다.

Research on Criminal Liability of Cybercrime Related to Attack Cloud Storage Platform

Attacking cloud platform crime is a kind of crime which is extremely harmful in the web3.0 era. It has the characteristics of strong combination ability, miscellaneous legal infringement category, low crime cost and difficult combat. In order to better criminalize this kind of crime, in addition to the traditional theoretical research of academic circles, it is necessary to study the trinity of practical research, data support and theoretical research. This article starts with the criminal model of attacking the cloud platform, sorts out 300 cases of the referee paper network, and the 42nd "Statistical Report on the Development of China's Internet Network" and other related data, and investigates the relevant substantive departments, and strives to clarify the crime of attacking the cloud platform. "Combining with other cybercrime, analyzing the existing loopholes in criminal liability system, providing a reliable basis for scientifically identifying crimes and managing the network society."

0201 Medical Malpractice Payments Following Mild Sleep Loss and the Daylight Saving Time Shift

Abstract Introduction The national cost of the medical liability system exceeds $10 billion/year, but not all medical errors result in a malpractice claim or payment. Malpractice claims are more likely if the medical error is perceived as severe, if the physician is perceived as lacking empathy, and if negative emotional reactions are triggered in the patient (due to individual or contextual factors). In recent experimental work, participants who were mildly sleep restricted showed an increased propensity to want to punish physicians for medical errors and compensate patients the maximum allowed. Building upon this laboratory work, we evaluated 30 years of medical malpractice claims to determine whether the judgment of final compensation increased after the Spring daylight saving time (DST) shift. Methods We obtained medical malpractice payment data on 373,643 United States cases from the National Practitioner Data Bank (NPDB). We contrasted inflation-adjusted payments across states that have DST shifts relative to non-DST control states (e.g., Arizona, Hawaii). We compared post-Spring DST payments to payments during the two weeks before/after the DST, and averaged payments for the remainder of the year. Results The total number of claims was unrelated to Spring DST, however, the size of malpractice payments significantly increased the week following the spring DST shift relative to non-DST control states and relative to the averaged payments for the remainder of the year. Spring DST was associated with an inflation-adjusted relative increase in malpractice payments by $7,836 to $61,809 per case (depending on comparison). Malpractice payments did not change in relation to the Fall DST shift. Conclusion Mild sleep restriction alters the cognitive and emotional regulation processes that underpin perceptions of medical error severity, willingness to punish, and judgments of appropriate compensation for medical errors. Support N/A

The Civil Liability System of the Islamic Republic Government for Involuntarily Liabilities With Emphasis on the Principles of Jurisprudence

The duties of the government in the system of the Islamic Republic of Iran in relation to involuntarily civil liabilities are one of the important and necessary issues that can be discussed considering the increasing importance of citizens' rights. The present study uses the library method to examine the mentioned questions. The results of the research indicate that in the law of the Islamic Republic, which is based on the jurisprudential principles of the religion of Islam, the government is committed for involuntarily responsibilities. The jurisprudential rules of no harm, correlation, A big head has a big ache , surety is liable for compensation , murder will out , advantages and interests of an object follows the risk , the ruler is the abstaining guardian , the wise institution of the state are related to involuntarily responsibilities of the state. Some examples of government duties for involuntarily responsibilities include the absence of an heir or the heir's inability to pay diyāt , the judge's mistake in judging, the government's obligation to deal with unforeseen events, and death due to overcrowding or involuntary falls of another person and the government's duty to pay the ransom for traffic accidents that do not identify the culprit.

PENERAPAN SISTEM PERTANGGUNGJAWABAN PIDANA BAGI LEMBAGA PERBANKAN DITINJAU DARI TEORI-TEORI SISTEM PERTANGGUNGJAWABAN PIDANA KORPORASI

The economy of the modern society is closely related or even inseparable with the world of banking. It is due to the fact that the main function of banking institutions is basically as an intermediary. However, the fact that the existence of banking institutions is as a corporation does not always have a positive impact. It can also impact negatively in the sense that the banking institution as a corporation becomes a perpetrator of criminal acts or conducts various criminal acts harmful to the public but untouchable by law.The results show that banking institutions (banks) can be categorized as corporations according to the criminal law. Consequently, as a legal subject, the bank is supposedly liable to commit a criminal offense and may be held accountable for criminal acts. The corporate criminal liability system has been legitimized and justified by several doctrines or theories: identification theory, strict liability theory, vicarious liability doctrine, the corporate culture model or company culture theory, doctrine of aggregation, and reactive corporate fault. If it is related to the subject matter, the corporate criminal liability system, as legitimized and justified by the various theories, can be applied to banking institutions. Hence, according to such theories or doctrines, the bank is deemed able to commit criminal acts and bear criminal liability. In addition, the arrangement and application of corporate criminal liability systems for banking institutions may also be justified by several fundamental or principal reasons.However, it is unfortunate that the system of criminal liability for banking institutions as a corporation is not yet applicable. This is because the current banking law is still dominated by the principle of "societas delinquere non potest" and collided with the principle of legality in criminal law. Thus, to overcome various problems that may arise in the future, the banking law needs to be revised by taking into account several things as described further in this paper.

From the General Provisions of Civil Law to the General Rules of Civil Law: A Historic Leap

The General Provisions of Civil Law (民法通则), formulated in the early days of reform and opening up, was a special law that set out the basic principles or rules of civil law, defining civil subjects, civil legal acts and the agency system, declaring the civil rights enjoyed by civil subjects, establishing a relatively complete system of civil liability system, and so on. It kindled awareness of civil rights among the mass of the population, ensured China’s rapid economic and social development, and laid down a basic framework and content for the civil code, so holds an important position in contemporary Chinese history. But with the development of the economy and society, civil law has had to change with the times. Civil law jurisprudence injects theoretical support into contemporary civil law legislation, and the blueprint for law based governance provides a powerful impetus to the historic leap forward of contemporary Chinese civil law, providing the necessary conditions for the codification of civil law. The completion of the General Rules of Civil Law (民法 总 则 ) answers the requirements of the economic, humanist and legal character of the times, demonstrates the humanist stance and spirit of the civil code, rises to the challenge of modern scientific and technological development, and ensures people’s enjoyment and control of their new-style rights and their objective forms. This signifies that the GPCL has accomplished its historical task and civil law in contemporary China has realized a historic leap forward, laying a foundation for the compilation of the Chinese civil code, including the specific provisions of the framework and the contents of its individual parts.

The impact of globalization on corporations conducting illegal fishing in North Sumatera

Indonesia is a maritime country with 17,508 islands endowed with great fisheries resource. Fishery resource makes Indonesia in a strategic position. Belawan is a port area in Medan. Geographically, the Port of Belawan is the biggest resource for fishing. So Belawan becomes the busiest port in Medan for fish commodity trading and supports the economy of the region. However, illegal fishing in Indonesian waters has a direct impact on the economy, especially fisherman and fish traders in Belawan. This study uses a normative juridical approach. The results show that several issues in handling illegal fishing crime still occur even though Law No. 31 of 2004 already existed and was strengthened by Law No. 45 of 2009 concerning Illegal Fishing Crime. This study revealed that there is no difference toward the imposition of penalties against the perpetrators of illegal fishing between “individual” and “corporations”. Indonesia still adheres to the system of liability in which corporations act as responsible makers and administrators. The condition does not seem comparable to the effects of crime committed. This illegal fishing crime also has an economic impact on the income of fisherman and local governments, especially Medan, which comes from the fisheries and marine sector.

Independence of an Advocate in Disciplinary Proceedings: Comparative Approach with a Focus on Ukrainian Experience

This research brings a special focus on the notion of disciplinary liability of advocates, regarding their status in a legal system dedicated to universal standards of competitive fair trial. The article is based on experience of Ukraine in shaping an efficient system of the bar, with a wide comparative insight into the systems of disciplinary liability of lawyers in European counties. Universal standards of professional legal ethics are being peculiarly adverted. Safeguards of procedural independence of lawyers in disciplinary proceedings are presented regarding best European practices. It has been concluded that confidentiality is a cornerstone of professional status of a lawyer and limitations of this principal should be strictly envisaged by law. Otherwise, trustful relationships of a lawyer and his client would be challenged. Independence, due proceedings of investigation of disciplinary offences, proportionality are mentioned as basic principles on which the system of disciplinary liability of lawyers in a democratic society is being founded. Local bar associations play a leading role in protection of advocates’ professional rights and shielding them from unwanted attacks of any type, including infringements of procedural rights of lawyers, coming from law-enforcement authorities.

Principles of Criminal Liability from the Semiotic Point of View

Certainly principles of criminal liability may be understood as rules or norms outlining orders or prohibitions and standing out among other norms with their weight, for legal culture, legal doctrine, etc. In such a classic approach they are norms defining basic rights and obligations in the applicable criminal law (legalata level). However, is it the only possible and cognitively interesting meaning of the word “principle” in jurisprudence? From the semiotic point of view, they can occur in three forms: special-kind norms, teleological directives, rules which constitute valid performance of conventional activities (making criminal law). In an extra-directival sense these principles may be understood as models-descriptions of shaping the system of criminal law (or criminal liability as the core of criminal law). From a theoretical and practical point of view principles addressed to the legislator are extremely weighty—they can be called rules constructing the system of criminal liability. These all problems are discussed in the article.

¿Compartir contenidos en línea o no? Un análisis del artículo 17 de la Directiva sobre ropiedad intelectual en el mercado único digital = To upload or not – an analysis of art. 17 of the Directive on copyright in the digital single market

Resumen: El “filtro de carga” para las plataformas de intercambio en línea ha sido uno de los temas más candentes en relación con la nueva Directiva 2019/790 sobre derechos de autor y derechos afines en el Mercado Único Digital (DCMUD). La batalla continúa en el ámbito nacional a la hora de afrontar la correcta y equilibrada transposición del art. 17 DCMUD, en particular en lo que respecta a garantizar la libertad de expresión. Este ensayo explora el sistema de responsabilidad del citado art. 17 y analiza su potencial contradicción con los derechos fundamentales de la Unión Europea, tal y como han sido ponderados por el TJUE en el asunto SABAM Netlog y otros recientes, en particular, con la pro­hibición de deberes generales de control y supervisión. Aunque sería posible argumentar que el art. 17 DCMUD podría superar ese examen de contraste, el precepto articula varias opciones de transposición que podrían emplearse para garantizar los derechos de los usuarios y la libertad de expresión.Palabras clave: propiedad intelectual, derechos de autor, plataformas de intermediación, puertos seguros, filtros de carga, contenidos digitales, contenidos generados por los usuarios, derechos funda­mentales, libertad de expresión, liability, e-commerce.Abstract: The “upload-filter” for online sharing platforms have been one of the hot issues regar­ding the new DSM-directive on copyright. The battle continues at the national level concerning the correct and balanced implementation of Art. 17 DSM-D, in particular regarding the guarantee of free­dom of speech. The article explores the liability system of Art. 17 DSM-D and analyzes its potential contradiction to fundamental EU rights which has been laid down by the CJEU in the SABAM Netlog case, in particular the prohibition of general monitoring duties. Even though one might argue that Art. 17 DSM-D could pass that test the article develops several implementation options in order to safeguard user rights and freedom of speech.Keywords: copyright, intermediary platforms, safe harbours, upload filters, digital contents, user generated contents, fundamental rights, right of free speech, responsabilidad, comercio electrónico.

Credence Services: Role of Liability System in India

Consumer sovereignty is a myth in the healthcare services because of high information costs and bounded rationality. Moreover, producer sovereignty oriented surgeries and absence of social security system enhance patients’ vulnerability in India. Thus, the aggrieved patients approach consumer courts against deficiency in the services of physicians. Our study shows that these courts had received 57.61 per cent of the patients’ grievances that were related to surgery. The grievances reveal that the erroneous surgeries inflict harm on patients. As a result, patients’ incur healthcare costs and sufferings due to permanent disability, apart from premature deaths. Courts were able to decide only nine per cent, 23 per cent and 30 per cent of the total disposed of cases in favour of consumers at the National Commission, the State Commission of Andhra Pradesh and the District Forum of Nellore, Andhra Pradesh, respectively. This is due to causational link problem. Our analysis further posits that the law’s delay and costs on vexatious claims raise concerns about efficiency of the courts. The insight obtained is to alter physician behaviour by establishing an appropriate incentive structure to practise patient oriented health care.

The Jury in Ukraine: topical issues of reform

The article is devoted to the analysis of the current state of the jury in Ukraine, assessment of existing problems in legislative regulation, ambiguity of enforcement and finding possible ways of solving existing problems. The jury's ability to defend the judicial system against some tendencies that take place in the trial corps and can undermine a fair system of criminal liability and punishment is argued. A statistical analysis of criminal and civil cases involving jury in 2017-2018 is provided. The article emphasizes that the successful functioning of the jury depends first and foremost on the procedure of selection of people for jury. The bill drafts of Ukraine of amendments to the current legislation on improvement of the procedure of forming the list of jury are analyzed. In the context of this, attention was paid to the issues of the quantitative composition of the jury, the transfer of power to form a list of jury to State Judicial Administration of Ukraine, the heterogeneity of the composition of the jury in terms of individual and psychological differences. The expediency of working out the Regulation “On the procedure of selection of citizens in the jury”, where all requirements for candidates for jury will be detailed, restrictions for people to be sworn, the procedure of forming the lists of jury and their submission to court, is stated. The outreach campaign and legal education of the population is аn important element of the effectiveness of the jury. The requirement of continuity of the trial in the case of jury which is related to the concentration of their attention and various kinds of influence, in particular the mass media, is emphasized. It is noted that the review of the decisions of the jury in the appeal court by professional judges, in fact, negates the value of the verdict of the jury.The item of allotments to candidates for jury and the experience of foreign countries on this issue are considered. It also substantiates the demand of transition of Ukraine to the classic jury trial model, which successfully operates in such developed countries as the United States, Canada, the United Kingdom, Denmark, Belgium and others. The introduction of a classic jury trial model is absolutely necessary in the current condition, will increase the public's confidence in the judicial system and will introduce an effective competitive model of criminal proceedings. Key words:jury, verdict of the jury, selection of the jury.

LDA-Based Model for Assessing the Defect Liability System in Residential Buildings’ Maintenance Phase

AbstractThis study aimed to assess the defect liability system for repairing various defects during residential buildings’ defect liability period using the loss distribution approach (LDA). It exa...

Belgijski system wspólnej odpowiedzialności za wypłatę wynagrodzeń — łańcuch wzajemnych powiązań

Belgijski system wspólnej odpowiedzialności za wypłatę wynagrodzeń — łańcuch wzajemnych powiązań

Predictibilitate în individualizarea sancțiunilor. Studiu de jurisprudență asupra criteriilor de individualizare a măsurilor educative

The minority status places the offender in an area of ​​vulnerability, which is often within the reach of a combination of factors that influence his attitude towards social values. For this category of offenders, a special criminal liability system has been regulated, with specific sanctions, and the choice of their nature and duration must not be made arbitrarily, as any solution should be predictable and motivated by reference to the degree of social danger of the deeds and the dangerousness of the perpetrator. In order to understand the extent of these concepts it is necessary to perform an analysis of the general individualization criteria of sentencing as they are presented and interpreted by the legal practice. The current regulation is not dependent on the „malum non habet aetatem” principle, which is why it is useful to understand the arguments on the basis of which the court individualizes the anti-criminal reaction, placing on one hand the malum element, and on the other the objective and subjective data regarding the deed-perpetrator dichotomy.

СУДИМОСТЬ И РЕЦИДИВ ПРЕСТУПЛЕНИЙ

The scientists have different approaches to the institution of criminal record within the system of criminal liability. Some consider it to be part of criminal liability; others argue that it is its consequence. The second opinion is more correct. The criminal record represents the consequences of criminal liability but not the criminal liability itself. Criminal liability cannot be exercised after serving the sentence since it does not go beyond punitive restrictions when serving a sentence. The conviction exists only after serving the sentence. Being the institution of criminal law, it gives rise to establishing for a person who has served a sentence general legal restrictions that are not provided for in the norms of criminal law and cannot be punitive. Their direct purpose is to prevent new crimes, ensure the safety of citizens and society and perform the function of ensuring public safety. In the criminal legal sense, the state of criminal record implies only the threat of a possible increase in criminal liability but does not include it. The designation of the status of the person is different: during the time of serving the sen-tence he is a convict, and after serving – a person having a criminal record. The criminal record is accompanied by recidivism of crimes. It is associated with the commission of a new crime by a person during the term, which depends on the category of the crime. Therefore, the re-offending while serving a sentence does not refer to the recidivism of crimes, it constitutes an independent form of multiple crimes - the totality of sentences. There is an interesting approach to criminal records in foreign legislations. In some coun-tries, the institution of additional punishments is used instead of it that entails the narrowing of the legal status of the person with a criminal record that is reinstated only by the court. In others, the criminal record after serving the sentence is established for life. It is not subject to the cancellation without further notice but can be expunged by the court if the person does not commit new crimes within the legal period. There are also different approaches to recog-nizing crimes as recidivism. In many countries, unlike Russian legislation, it is not connected with the term of a criminal record and is reduced to the re-recurrence of crimes within a certain period after serving the sentence. In some countries, in case of repeated crimes of a certain category (e.g. against state security), committed after serving the sentence, the person is rec-ognized as a recidivist, while other crimes form recidivism if they are committed within 5 years after serving a prison sentence. Some of these provisions should also be used in Russian law. The Russian legislators should establish a procedure for expunging the criminal record concerning two categories of persons: those who committed socially significant dangerous crimes and have committed crimes in dangerous and particularly dangerous recidivism of crimes that cannot be corrected while serving their sentences in prison. It is also appropriate to re-store the period of interruption of the criminal record in the event of a new intentional crime.

Policy by Judicialisation: The Institutional Framework for Intermediary Liability in Brazil

This paper offers an institutional assessment of the intermediary liability system currently operative in Brazil. According to article 19 of the Marco Civil, content sharing platforms shall only be held liable for third party infringement if they fail to act upon it under a court ruling. This is a court-centred system, and as such, it is praised for its benefits to freedom of expression, the assumption being that such a safe harbour should create fewer incentives for intermediaries to overblock content. The goal of this paper is to analyse this regulatory choice beyond the freedom of expression trade-off, considering the institutional characteristics of the judicial decision-making process and how they can affect the broader online content regulation context. It builds on the literature dedicated to the relationship between judicialisation and public policies in order to accrue the practical implications of the judiciary’s legitimacy, institutional capacities and selectivity for the aforementioned governance system.

O ASSÉDIO MORAL NO AMBIENTE DE TRABALHO E A POSSIBILIDADE DE CONFIGURAÇÃO DO DANO EXISTENCIAL

O presente artigo demonstra o modo pelo qual a prática de assédio moral no trabalho poderá causar, além das formas tradicionais de danos, uma categoria jurídica de dano extrapatrimonial recém reconhecida no Direito Brasileiro: o dano existencial. A par das polêmicas doutrinárias e jurisprudenciais, descabe confundir essa categoria jurídica autônoma com o dano moral, o qual deve, dentro da reestruturação do sistema de responsabilidade civil brasileiro, garantir a proteção integral do trabalhador. Através do método dedutivo e análise documental, empírico e jurisprudencial, o presente artigo fundamenta a possibilidade não apenas de reconhecimento do dano existencial independentemente do moral causado ao trabalhador, mas a possibilidade de cumulação dos pedidos de danos extrapatrimoniais, mensurando-se cada bem jurídico atingido quando a vítima foi lesada ao sofrer assédio moral em seu meio ambiente de trabalho.

Роль решений Конституционного Суда Российской Федерации в формировании системы юридической ответственности

The object of the study is public relations in the field of constitutional justice. The subject of the study is the acts of the Constitutional Court of the Russian Federation, affecting changes in the legal liability system, as well as the current legislation on legal liability. The article analyzes the acts of the Constitutional Court of the Russian Federation on issues of legal responsibility, defines doctrinal positions that affect the change in the system of legal responsibility. Particular attention is paid to the decisions of the Constitutional Court of the Russian Federation, which disclose the content of the principles of legal responsibility, their place in the system of law enforcement. The main directions of the impact of acts of the Constitutional Court of the Russian Federation on the legal liability system are determined. In the process of the study, a systematic approach was applied, which allowed us to consider legal responsibility as a single system that interacts with other phenomena, to identify the nature of the relationship of the legal responsibility system and decisions of the Constitutional Court of the Russian Federation. In preparing the article, the method of program research of judicial practice was used, the application of which made it possible to systematize the legal positions of the Constitutional Court of the Russian Federation formulated in acts of various types. As a result of the study, a number of conclusions were made about the main areas of influence of decisions of the Constitutional Court of the Russian Federation on the legal liability system. Criteria have been identified to assess the principle of legal responsibility, formed in the acts of the Constitutional Court, as mandatory. The systemforming criteria of legal liability formulated in the decisions of the Constitutional Court of the Russian Federation are determined. The legal positions of the Constitutional Court of the Russian Federation on judicial enforcement in the absence of a rule of law are critically evaluated. The study was financially supported by the Russian Foundation for Basic Research (RFBR) as part of scientific project no. 19-011-00103 A, “Legal responsibility in the Russian legal system: the concept of interaction, relationships and elimination of contradictions with other elements of the legal system”.