Tort Liability Research Articles

Research on the Determination of Tort Liability for Human Damage Caused by Surgical Robots

Research on the Determination of Tort Liability for Human Damage Caused by Surgical Robots

Research on tort liability of autonomous vehicle

Research on tort liability of autonomous vehicle

Research on the tort liability of network service providers

Research on the tort liability of network service providers

The extension of vicarious liability in corporate groups

ABSTRACT This article explores the important but unresolved issue of whether one legal entity can be vicariously liable for another legal entity’s tort in a corporate group primarily based on UK law. Prior literature and case law seldom provide detailed discussion on the extended application of vicarious liability in group situations. The article aims to enrich the discussion of corporate tort liability by specifically evaluating whether the relationship between the parent and subsidiary companies could be akin to employment, and by researching whether this relationship is closely connected with the tort, subsequently leading to vicarious liability. The research findings reveal that the enterprise risk theory supports the close connection between the special relationship (the parent and subsidiary companies) and the tort in certain circumstances. However, the essential tests for the relationship requirement (namely, the control, organisation, integration, and entrepreneur tests) are difficult to meet in combination in modern group situations.

The correspondence between contractual and tort liability in the Civil law of Ukraine, Germany, and France

The correspondence between contractual and tort liability in the Civil law of Ukraine, Germany, and France

The impact of increased risk on civil liability for property damage

In the article, the author substantiates the expediency of liability even in the absence of fault for damage caused by activities or objects that carry an increased risk of causing property damage to other subjects. It is noted that civil legislation consists mainly of norms aimed at positive regulation, establishing the rules of lawful behavior. The will and awareness of the fulfillment of duties, laid down in the norms of civil legislation, are directed precisely at lawful behavior. The will and awareness as prerequisites for the entry of persons into the civil circulation determine legal regulation and give the behavior of persons, in accordance with the established norm, legal significance. The possibility of choice, which a person realizes in the permitted activity, is connected with the will. In turn, choice is often directly or relatively based on risk as an element of decision making. In the course of the study, a conclusion was formed that in accordance with the distributive manifestation of the principle of justice of tort liability in civil law (distributive justice), the distribution of burdens and benefits of useful, but risky types of activities should take place as follows. The one who receives the benefits and has to bear the burden is the price of co-existence in the social world. It is unfair if the subject of risky activity will transfer the burden of loss from such activity to the victims, leaving only the benefit behind. Normative ascertainment in a number of cases of no-fault liability is dictated precisely by the just desire to restore the violated property sphere of the victim at the expense of the person who caused the damage, who risked engaging in an activity that creates an increased danger for others, and who was aware that the implementation of this activity could lead to accidental damage. It should be noted that the above-mentioned arguments for the implementation of the principle of justice, according to which «the one who increases the danger for those present above the usual level through his activities, must also bear responsibility for this increase», are also relevant in the course of defining other types of special torts. Particularly in cases of civil liability in the field of providing medical services. A certain medical activity carried out using X-ray or laser devices, to a large extent, always contains an increased risk of unforeseen complications due to the impossibility of full control over it by medical professionals; therefore it is quite appropriate to attribute such activity to the source of increased danger.

Towards the Establishment of Spouse Tort Liability within Marriage

In the evolution of law, there is a growing awakening of individual consciousness. The number of intra-marital tort claims not predicated on divorce has increased in judicial practice. However, China currently only has a compensation system for damages arising from divorce, which is not conducive to the protection of the legitimate rights and interests of the parties involved. With the development of the economy, the liberalization of ideas, the collision of Chinese and Western legal thoughts, and the independent status of marital economics, the establishment of an intra-marital tort system has become possible. Intra-marital tort litigation is not predicated on the termination of marriage, but is established to protect the victim, punish the at-fault party, and prevent the occurrence of tortious acts. The elements of such litigation should have stricter requirements than general torts.

Intubation Refusal by Patients' Family: Related with Self-Determination as the Object of Tort Liability

Intubation Refusal by Patients' Family: Related with Self-Determination as the Object of Tort Liability

인공지능의 민사책임에 대한 소고

The recent development of artificial intelligence (AI) technology is bringing about changes at a faster pace and on a larger scale than any other period in human history. With technological advancements overcoming the limitations of medical AI through training with databases, AI technology has made remarkable progress since the inception of deep learning for image processing with convolutional neural networks (CNN) in 2012. The recent advancements in natural language processing (NLP) have accelerated the utilization of AI through sophisticated natural language processing, enabling machines to identify and understand data regardless of the complexity of the language. This has laid the foundation for the rapid and precise development of generative AI. In the era where generative AI is being utilized without pausing in its developmental speed, we considered the civil liability of AI in our civil law principles, taking into account the inherent characteristics of AI such as unpredictability, opacity, and the black box effect. To do this, we first examined the legal liability considering the stages of AI technology development in discussing the tort liability caused by AI. Even “Weak AI,” created by AI developers, may fall under “Gefahr,” and while not all types, some may apply to strict liability in terms of risk liability. Furthermore, while reviewing civil liability applicable to AI under fault-based and no-fault liability, we also looked at the trends in the EU comparatively. In discussing no-fault liability, particularly under the Product Liability Act, we examined the possibility and implications of applying risk liability to pharmaceutical manufacturing using generative AI technology as a representative example to overcome the limitations of the existing Product Liability Act. Humanity currently lives in an era of rapid technological development and exploding big data, enjoying numerous benefits due to these advancements. As user convenience improves and massive added value is created through technological progress, the meaning of risk liability in the realm of civil liability can gain more significance. Generative AI has already drastically reduced the costs and time required for new drug development, providing substantial profits to pharmaceutical companies. However, even if the existing Product Liability Act is applied, it may be difficult to adequately remedy the harm to victims due to the reasonable alternative possibility defense regarding design defects. In the era of generative AI, we examined the possibility of applying enhanced risk liability by assuming the case of pharmaceutical manufacturing.

Exploration on the Legal Application of Punitive Damage System for Tort of Ecological Environment Damage–Taking Article 1232 of the Civil Code as an Entry Point

The rule of law for the ecological environment is in rapid development, and article 1232 of the Civil Code establishes the system of punitive damages applicable to the ecological environment, which is a significant development of China’s environmental tort liability system. However, the basis for the construction of the system of punitive damages and the ambiguity of the legal provisions themselves bring uncertainty in the application of the law. From the legislative purpose, the background of the legal system for a deep understanding of the function and characteristics of the punitive damages system, and then clarify the basis of the right to claim the qualification of the subject of the application. Through the existing legal provisions and empirical statistical data, the contradictions of the ecological environment infringement compensation system are solved, and the gap in the calculation standard of punitive damages is made up. Finally, from the liability system as a whole, to promote the ecological environment damage tort liability into the overall liability system to consider, in order to realize the punitive damages system responsibility for comprehensive, rationalization of the system to provide the basis.

Challenges for Regulating Tort Liability for Adaptive Robots

لا يتردد هذا البحث في تأييد الحجج التي تحاول ربط أفعال الروبوت بالإنسان، أي عدم القول بمسؤولية الروبوت الشخصية عن أعماله؛ لكن مع توضيح إشكاليات بعض النظريات التقليدية في إسنادها المسؤولية للإنسان، كما يوضح البحث كيف أن النظريات الحديثة التي حاولت تفادي قصور النظريات التقليدية؛ لم تقدم الجديد، وراوحت مكاناها. لذلك يطرح البحث مبررات رفض مسؤولية الروبوت الشخصية؛ القانونية منها، وغير القانونية التي لا تنفصل عن القانون المتمثلة في السياق الأخلاقي والنفسي للمسؤولية، ثم يقترح أساسا قانونيا مقنعا؛ يتفادى قصور النظريات المشار إليها.

El desarrollo decisional de la jurisprudencia del Consejo de Estado colombiano en cuanto a la reparación del daño ambiental consecutivo directo

Between 2004 and 2021, the jurisprudence of the Colombian Council of State on tort liability addressed the study of cases in which the plaintiff, attributing environmental damage to the State, sought full reparation of damages. Given that these damages may deprive certain persons of the use or enjoyment of the values that the ecosystems they inhabit provide them, this research aims to answer the question of what is the ideal way to order the reparation of harm attributable to the State, of the individual facet of the constitutional right to a healthy environment. For this purpose, the methodology of the jurisprudential line proposed by López Medina (2006) is applied to those cases where direct consequential environmental damage is attributable to the State, arguing that the ideal way to compensate for this type of damage is reparation in kind. It is suggested that disregard for the individual facet of the right to a healthy environment in the contentious administrative jurisdiction implies that the reparation of environmental damage is partial; therefore, the study proposes as a solution a sentence in which the Council of State unifies its jurisprudence recognizing the individual facet of this right.

Research on the Judgement Standard of the Duty of Care of Internet Service Providers

The internet service providers tort liability for general fault tort liability, which means that network service providers bear the tort liability need to subjective fault for the elements, then for the network service provider's subjective fault judgement standard objectively to rise to the network service provider's reasonable duty of care judgement standard above the problem. Up to now, about the network service provider's duty of care standard judgement is still no clear provisions, in the legal and judicial fields are more controversial. This paper explores these issues through an analysis of trial practices, seeking to establish a more standardized approach to evaluating ISPs' duty of care. The findings suggest that adopting the "good manager" standard could significantly enhance the clarity and effectiveness of managing ISPs' tort liabilities. It proposes the establishment of a dedicated management association within ISPs to implement and oversee these management policies consistently across the sector. This approach aims to not only define but also enforce a reasonable duty of care standard that is both fair and practicable.

A Products Liability Framework for AI

A products liability framework, drawing inspiration from the regulation of FDA-approved medical products—which includes federal regulation as well as products liability—holds great promise for tackling many of the challenges AI poses. Notwithstanding the new challenges that sophisticated AI technologies pose, products liability provides a conceptual framework capable of responding to the learning and iterative aspects of these technologies. Moreover, this framework provides a robust model of the feedback loop between tort liability and regulation.The regulation of medical products provides an instructive point of departure. The FDA has recognized the need to revise its traditional paradigm for medical device regulation to fit adaptive AI/ML technologies, which enable continuous improvements and modifications to devices based on information gathered during use. AI/ML technologies should hasten an even more significant regulatory paradigm shift at the FDA away from a model that puts most of its emphasis on (and resources into) ex ante premarket approval to one that highlights ongoing postmarket surveillance. As such a model takes form, products liability should continue to play a significant information-production and deterrence role, especially during the transition period before a new ex post regulatory framework is established.

Can there be responsible AI without AI liability? Incentivizing generative AI safety through ex-post tort liability under the EU AI liability directive

Abstract In Europe, the governance discourse surrounding artificial intelligence (AI) has been predominantly centred on the AI Act, with a proliferation of books, certification courses, and discussions emerging even before its adoption. This narrow focus has overshadowed other crucial regulatory interventions that promise to fundamentally shape AI. This article highlights the proposed EU AI liability directive (AILD), the first attempt to harmonize general tort law in response to AI-related threats, addressing critical issues such as evidence discovery and causal links. As AI risks proliferate, this article argues for the necessity of a responsive system to adequately address AI harms as they arise. AI safety and responsible AI, central themes in current regulatory discussions, must be prioritized, with ex-post liability in tort playing a crucial role in achieving these objectives. This is particularly pertinent as AI systems become more autonomous and unpredictable, rendering the ex-ante risk assessments mandated by the AI Act insufficient. The AILD’s focus on fault and its limited scope is also inadequate. The proposed easing of the burden of proof for victims of AI, through enhanced discovery rules and presumptions of causal links, is insufficient in a context where Large Language Models exhibit unpredictable behaviours and humans increasingly rely on autonomous agents for complex tasks. Moreover, the AILD’s reliance on the concept of risk, inherited from the AI Act, is misplaced, as tort liability intervenes after the risk has materialized. However, the inherent risks in AI systems could justify EU harmonization of AI torts in the direction of strict liability. Bridging the liability gap will enhance AI safety and responsibility, better protect individuals from AI harms, and ensure that tort law remains a vital regulatory tool.

자율주행자동차 상용화에 대비한 자동차보험제도 연구

On May 7, 2016, in the state of Florida, USA, a fatal accident occurred involving an autonomous vehicle and a large truck, leading to the death of the driver. This incident heightened interest in autonomous vehicles and sparked discussions on their implications, including the challenges and liability issues in the event of accidents during autonomous operation. The application of existing legal frameworks, such as Article 750 of the Civil Code on tort liability and Article 3 of the Automobile Damage Compensation Guarantee Act on operator liability, to accidents involving autonomous vehicles raises questions about identifying responsible parties and compensating victims. This study examines the applicability of these legal principles to accidents occurring during autonomous driving and proposes the introduction of a No-Fault insurance system as a novel automotive insurance mechanism to address these issues. The analysis revealed that the No-Fault insurance system, a solution to the problems posed by the current fault-based liability system and already implemented in several advanced countries since the early 2000s, was considered but ultimately not adopted in South Korea due to challenges in amending existing legislation, limitations in calculating insurance rates, and concerns over moral hazard, among other issues. However, as autonomous vehicles are poised to integrate into our lives more rapidly than anticipated, and the social concerns regarding traffic accidents during autonomous operation deepen, it is imperative to form a task force comprising the Ministry of Land, Infrastructure, and Transport, the Financial Supervisory Service, the General Insurance Association, among others, before it's too late. This task force should engage in research and discussions, while building a consensus among the public, to prepare for the new automotive market driven by the autonomous vehicle industry.

Material and Tort Liability: Problems of Correlation between the Norms of Civil and Labour

The author notes the inconsistency of the current institution of material liability with the basic provisions of civil legislation on tort liability. Financial liability by its characteristics is a kind of tort liability. The presence in the labor legislation of a mention of bringing participants in labor relations to civil liability creates conditions for full compensation for harm, including lost profits according to the norms of the Civil Code of the Russian Federation, after receiving compensation under the rules of limited or full liability. With such legal regulation, taking into account judicial practice, there is either a diminution of the importance of categories of labor law, or a non-uniform application of the norms of the Labor Code of the Russian Federation. Gaps and imperfections in the construction of liability should be eliminated by completely isolating this institution or by observing all the rules and principles of tort liability.

Problems of correspondence between contractual and tort liability in the Civil law of Ukraine

The article explores the regulation of civil legal relations between parties arising from the breach of contract terms and the infliction of harm in Ukraine, specifically analyzing the correspondence between the grounds for the emergence of such legal relations. Although the topic of the relationship between contractual and tort liability has been addressed by scholars repeatedly, there is still no consensus on resolving this issue in Ukrainian legal doctrine. The doctrine contains many contradictions and gaps, negatively impacting the level of legal science, which is reflected in the quality of national civil legislation. The research analyzes the theoretical foundations of the legal phenomenon of legal liability in the context of defining the legal nature of contractual and tort liability. It examines scientific approaches and general principles underlying Ukrainian civil legislation, focusing on the correspondence between types of liability and the grounds for applying corresponding liability measures. The analysis also delves into Ukrainian legal doctrine regarding contractual and tort liability, highlighting the problems and contradictions that have led to legal uncertainty on the research topic. The current state of Ukrainian legislation indicates the absence of a systematic approach to defining and regulating contractual or tort liability. The Civil Code of Ukraine does not contain such definitions or use such concepts in its provisions. While these concepts are common in legal theory, the array of different, often conflicting, scholarly positions prevents the formation of a unified conclusion. Due to the legal uncertainty arising from theoretical approaches in relating contractual and tort liability, there is still a need for further research on this matter. As a result of this article, an analysis of the imperfections of Ukrainian legal doctrine is conducted, and ways to address legal uncertainty are proposed.

Проблемы разграничения деликтной и договорной ответственности саморегулируемых организаций

в статье анализируется возможность привлечения к солидарной ответственности саморегулируемые организации, членами которых являются застройщики, причинившие вред третьим лицам в результате строительных работ, не отвечающих требованиям безопасности. Вопросы юридической ответственности, традиционно, являются дискуссионными не только в науке гражданского права, но и в юриспруденции в целом, особенно если речь идет о нетипичных субъектах. Анализ реализации норм об ответственности и особенностях правового статуса саморегулируемых организаций в строительной сфере и их членов указывает на то, что тенденции развития уже устоявшегося процесса саморегулирования направлены на самостоятельное, практически без вмешательства государства, формирование моделей взаимодействия с различными хозяйствующими субъектами. С учетом того, что саморегулирование, как правило, рассматривается в качестве одного из способов социального регулирования общественных отношений необходимо стремиться к балансу прав и законных интересов как лиц, осуществляющих предпринимательскую или профессиональную деятельность, так и иных лиц, чьи права могут быть затронуты. Автор на основе анализа действующего законодательства, исследуемой судебной практики, а также доктринальных подходов приходит к выводу о том, что саморегулируемая организация может быть привлечена к гражданско-правовой ответственности за действия третьих лиц (застройщика). the article analyzes the possibility of bringing to joint responsibility self-regulatory organizations, whose members are developers who have caused harm to third parties as a result of construction works that do not meet safety requirements. Issues of legal responsibility are traditionally debatable not only in the science of civil law, but also in jurisprudence in general, especially if we are talking about atypical subjects. An analysis of the implementation of the norms on responsibility and the peculiarities of the legal status of self-regulating organizations in the construction sector and their members indicates that the trends in the development of the already established process of self-regulation are aimed at independently, practically without state intervention, the formation of models of interaction with various business entities. Taking into account the fact that self-regulation, as a rule, is considered as one of the ways of social regulation of public relations, it is necessary to strive for a balance of rights and legitimate interests of both persons engaged in entrepreneurial or professional activities and other persons whose rights may be affected. The author, based on the analysis of current legislation, the studied judicial practice, as well as doctrinal approaches, comes to the conclusion that a self-regulating organization can be held civilly liable for the actions of third parties (the developer).

On the Scope of Liability for Negligence in Maritime Search and Rescue under the Background of the Amendment to the Maritime Code

In the era of contract-based maritime rescue under the background of amendments to the Maritime Code, disputes arise regarding whether a rescuer who, due to negligence, causes harm to the assisted party should bear tort liability. When a rescuer negligently causes harm to the assisted party during maritime rescue operations, it constitutes concurrent liability for tort and breach of contract. The rescuer should bear the responsibility for compensating the damages. Specifically, in establishing liability, it is essential to adhere to the standards identical to those in the Tort Liability section of the Civil Code. However, in determining the scope of liability, the principle of full compensation should not be strictly applied and can be appropriately relaxed. First, after posing the question, this paper employs a legal normative analysis method to explore the applicable domestic and foreign laws as well as international treaties related to the issue. The current legal systems stance on the matter is derived from legal norms. Analyzing the rights and obligations relationship between the rescuer and the assisted party from the perspective of balancing interests aims to achieve a new balance of interests between the two parties. Secondly, by comparing the Maritime Code with the Civil Code, the specific differences between the Maritime Code and the Civil Code provisions are identified. Additionally, considering the inherent characteristics of the Maritime Code, an analysis is conducted to differentiate the establishment and scope of liability for negligence-induced maritime rescue. Thirdly, through comparative analysis, it is determined that the rescuer should bear liability for damages resulting from negligent infringement, but the scope of liability can be appropriately limited. Moreover, a comparison between the maritime rescue system and relevant systems is made to clarify the relationship between the maritime rescue system and other relevant systems, providing theoretical support for the amendment of the Maritime Code. Finally, solutions and recommendations are proposed for the issues raised in the context of amendments to the Maritime Code.