Tort Research Articles

Вопросы совершенствования российского законодательства о техническом регулировании в части определения недостатка высокоавтоматизированного автомобиля

The article brings to the attention of the scientific community some results of a study of current problems of legal regulation of relations arising in connection with the operation of highly automated vehicles, voiced by the authors as part of a plenary report and speeches at the VII International Scientific and Practical Conference “Tambov Legal Readings named after F.N. Plevako” (Tambov, 19th–20th of May, 2023). The rapid development of the highly automated car industry gives rise to a whole range of problematic issues, the totality of which can be characterized as a challenge for Russian tort law. A special place among such issues is occupied by the problem of liability of manufacturers of highly automated cars for damage caused by cars equipped with automatic driving systems. An analysis of scientific sources shows that these issues have not received the necessary and sufficient coverage in Russian literature to resolve problematic situations that arise during the operation of highly automated vehicles. Due to the authors’ awareness of this problem, which consists in the contradiction between the needs of law enforcement practice and the lack of a consistent and problem-free system of legal regulation based on scientific study, this article attempts to provide an analysis of one of the key problems that are important when considering cases of attracting manufacturers to no-fault liability for causing harm by a highly automated car, namely the problem of determining the defect of the car. Using a traditional set of legal research methods (formal-dogmatic, systemic and comparative legal), existing approaches to determining the disadvantage of a car as a product are analyzed. Based on the results of the analysis, the conclusion is substantiated that the current gap in the legislation on technical regulation gives rise to significant difficulties in practically resolving the issue of the presence or absence of a deficiency in a highly automated vehicle. In order to solve this problem, a qualitative criterion has been formulated to identify the shortcomings of a highly automated car, which can be legalized in the legislation on technical regulation and used in judicial practice.

The Impact of Regulation on Customer Satisfaction: Evidence from the US Auto Insurance Industry

Insurance is among the most heavily regulated industries. However, regulatory characteristics differ across each state, including the way an insurance supervisor is selected, how rates are set, and the fault system by which injured parties pursue damages. Employing a large dataset from J.D. Power, we examine how these regulatory characteristics, along with other state, demographic, socioeconomic, and experiential factors, impact consumers’ satisfaction with their automobile insurance carriers. We find differences in the metrics—overall price, and claims satisfaction—based on certain regulatory attributes and also find that prior claims experience significantly impacts satisfaction. Prior claimants are generally more satisfied with their insurance carrier and exhibit greater significance in the impact of regulatory factors on their satisfaction.

Sprawa J.Ż. w związku ze znieważeniem Prezydenta Rzeczypospolitej Polskiej. Glosa do wyroku Sądu Apelacyjnego w Warszawie z 30.09.2022 r., II AKa 110/22

The subject of the commentary is the discontinuation of criminal proceedings conducted for insulting the President of the Republic of Poland. The author took a critical stance towards the judgment of the Court of Appeal in Warsaw of 30 September 2022, assessing that the commented judgment negated the injured party’s right to protection of personal dignity. Interpretation of Article 135 paragraph 2 of the Penal Code, in the context of the convention standards, should not lead to the conclusion that freedom of expression is absolute and unlimited.

Research on Joint Dangerous Acts in Civil Tort Liability

Research on Joint Dangerous Acts in Civil Tort Liability

Artificial intelligence and civil liability—do we need a new regime?

Abstract Artificial intelligence (AI) is almost ubiquitous, featuring innumerable facets of daily life. For all its advantages, however, it carries risks of harm. In this article, we discuss how the law of tort should deal with these risks. We take account of the need for any proposed scheme of liability to protect the existing values of tort law without acting as a barrier to innovation. To this end, we propose a strict liability regime in respect of personal injury and death, and a bespoke fault-based regime for dignitary or reputational injuries. For other losses, we take the view that there is no justification for introducing any new regime, on the basis that AI applications do not introduce substantial added degrees of risk that would justify departing from the existing scheme of liability arising under the current law of tort.

Research Priorities for Climate Litigation

AbstractThis article characterizes key research gaps and opportunities for scientists across disciplines to do work that informs the rapidly growing number of climate lawsuits worldwide. It focuses on research that can be used to inform legal decisions about responsibility for greenhouse gas emissions and climate damages. Relevant lawsuits include claims filed against government and corporate defendants alleging that they have violated environmental, human rights, constitutional, tort, and consumer protection laws due to their contributions to climate change and failures to control emissions. Constructive attention has recently been given to the important role of attribution science in informing some of these cases (Burger et al., 2020, https://doi.org/10.7916/cjel.v45i1.4730; Stuart‐Smith et al., 2021, https://doi.org/10.1038/s41561-021-00686-4). Here, we draw upon both the published literature and conversations with diverse legal scholars and practitioners to characterize what further climate litigation‐relevant research is most needed. In addition to key gaps in litigation‐relevant attribution science, we identify and characterize the need and opportunity for further social science research to address the causes of climate inaction, and for further cross‐disciplinary research to inform emerging legal questions on the allocation of responsibility for emissions reductions to align with temperature limits such as those set by the Paris Climate Agreement. Our primary goal is to identify areas for researchers who are interested in contributing to climate litigation and discussions about legal responsibility for climate change. We also seek to help the research community see this as a legitimate and important domain for timely, actionable scientific research.

COMPENSATION FOR DAMAGE CAUSED BY A ROBOT

Artificial intelligence has been used in many areas of life, as it is machines performing tasks that require human intelligence, such as finding solutions to some problems and collecting information, but the behavior of artificial intelligence may result in harm to others, so are the traditional liability rules valid for reparation. Artificial intelligence systems have provided many features that facilitate the conducting of tasks and functions requiring human intelligence, but at the same time they may cause severe damage that may reach the point of causing death. Because of the possibility of such and other damages, many doubts and concerns are raised about the use of these systems. And the legal problems it produces, especially with its acquisition of a kind of subjectivity. Therefore, given the wide spread of artificial intelligence systems and the start of their use as an industrial alternative to human energy, the provisions of liability arising from the damage that these systems may cause must be clarified. In general, responsibility appears when the individuals bear the consequences of their mistakes that harms others, by obliging the wrongdoer to compensate the injured party for the damage that occurred to him because of this mistake.

Growing Convergence, Continuing Divergence: Comparative Remarks on the American and European Private International Law of Torts

The Restatement Second and Rome II are representatives of two different legal cultures. While Rome II, as the representative of the EU private international law of torts, appears in a formalist way to achieve ‘private international law/conflicts justice’, the American Restatement Second, which adopts an eclectic system of various approaches, appears as a ‘result-oriented’ legal instrument with the underlying idea of achieving ‘substantive justice’. Although these systems have mainly preserved their unique characteristics, they have converged with each other over time. New approaches on both sides of the Atlantic indirectly support this convergence. This article identifies and critically evaluates the main convergent and divergent features of the EU and the US private international laws of torts comprehensively in line with the primary legal sources of information and practice.

Algunas inconsistencias en el sistema de daños

Tort law must be considered as a whole in order to harmonize the objectives of each of its subsystems, especially among those that are closely linked in the economic dynamics. In the search for regulatory coordination, some inconsistencies are highlighted that deserve to be approached from a legislative policy standpoint in order to avoid empty statements. The incentives for prevention of damages are inappropiate and the author provides possible solutions for this issue. Likewise, the virtuality of the autonomy of the will in the field of the duty to respond for damages is analyzed. This paper also emphasizes in the need for reparation to be timely and proposes a way to avoid procedural obstacles.

Semantic Representation of the Intersection of Criminal Law & Civil Tort

The more complex and globalized social structures become, the greater the need for new ways of exchanging information and knowledge. Legal science is a field that needs to be codified to allow the interoperability between people and states, as well as between humans and machines. The objective of this work is to develop an ontology in order to describe two different pillars of codified law (civil and criminal) and be able to depict the interaction between them. To answer the above question, we examine the Greek Criminal Law as depicted in the Greek Penal Code (ΠΚ) and the way its articles can be analyzed. Then we examine Tort as described in the Greek Civil Code (AΚ) and link the two codifications through the concepts of illegality and damage, both being prerequisites of tortious liability. Following that, through the Protégé application, a legal ontology is created in the OWL semantic language, while finally, four articles of the Penal Code are codified in the ontology and a presentation of their relation to the civil tort is required from a reasoning algorithm.

The Risk-Based Approach of the European Union’s Proposed Artificial Intelligence Regulation: Some Comments from a Tort Law Perspective

AbstractHow can tort law contribute to a better understanding of the risk-based approach in the European Union’s (EU) Artificial Intelligence Act proposal and evolving liability regime? In a new legal area of intense development, it is pivotal to make the best use possible of existing regulation and legal knowledge. The main objective of this article is thus to investigate the relationship between traditional tort law principles, with a focus on risk assessments, and the developing legislation on artificial intelligence (AI) in the EU. The article offers a critical analysis and evaluation from a tort law perspective of the risk-based approach in the proposed AI Act and the European Parliament resolution on a civil liability regime for AI, with comparisons also to the proposal for a revised and AI-adapted product liability directive and the recently proposed directive on civil liability for AI. The discussion leads to the illumination of both challenges and possibilities in the interplay between AI, tort law and the concept of risk, displaying the large potential of tort law as a tool for handling rising AI issues.

Tort liability for a failure to render assistance in a comparative perspective

The article looks at the problem of tort liability for a failure to render assistance and compares the legal approaches to this issue. There are no European legal systems that regulate such a duty to render assistance directly in the provisions of private law. This is generally because most of them (with the exception of common law countries) have criminal law provisions that penalize a failure to rescue another person in need of assistance. This raises the question of the impact of criminal law on liability in private law. The paper discusses this issue in detail, accepting the opinion that, in those legal systems where a failure to render assistance is punishable as a criminal offence, the provisions of criminal law should determine the conditions and prerequisites for rendering assistance in private law and establish the boundaries of liability in tort law. In addition, the article aims to present universal guidelines that might be useful for courts in order to establish tort liability in other cases of a failure to render assistance.

Anomalies in Tort Law: A Cause for Concern?

In case law, and in the associated academic literature, numerous judges and jurists have labelled parts of tort law ‘anomalies’. This description – with its pejorative overtones – seemingly highlights a cause for concern about the state of the law. Yet closer analysis suggests otherwise. First, commentators mean different things when they speak of anomalies; only some of which provide genuine reasons for unease. Secondly, all but two of the aspects of tort law considered in this article that have been described as anomalous turn out to be no such thing. Finally, even those two remaining parts of tort law that have been labelled anomalies can be defended because (1) they have a great deal going for them in practical terms, and (2) the internal coherence of tort law (which they are thought to undermine) is not the unqualified good it is widely supposed to be.

Teaching by historicising private international law

AbstractThis paper proposes a historical contextual pedagogy for private international, which helps students reflect on the impact of the field's legal techniques in different historical contexts. To emphasise the richness of a historical lens, the paper reflects on the development and use of private international law tort rules in a colonial, intellectual and gender historical context. By taking Phillips v. Eyre as a reference, the goal is to illustrate how the canonical cases in private international law can serve as entry points towards a broader historical contextualisation of private international law, beyond the doctrine, though inspired by it.

MILITARY SERVANTS AS SUBJECTS OF ADMINISTRATIVE OFFENSES: GENERAL AND SPECIAL IN UNDERSTANDING

The article examines the peculiarities of the application of administrative responsibility to a special subject of the specified type of legal responsibility - a military serviceman. The norms of administrative-delict law and legislation of Ukraine are based on principles that are actually introduced into the national legal system of Ukraine and use the institution of substituting administrative responsibility with disciplinary responsibility. At the same time, changes made to the Code of Ukraine on Administrative Offenses testify to an ambiguous attitude to the institution of substitution in administrative tort law. Thus, the updated procedural norms of the administrative-delict legislation give authorized officials the right to draw up protocols on administrative offenses against military personnel, which indicates the removal from the list of exceptions among subjects who do not bear administrative responsibility on a general basis - military personnel. At the same time, the general principles of the Code of Ukraine on administrative offenses state that military personnel may be subject to administrative liability in exceptional cases. Such an approach reveals an ambiguous perception of the substitute. At the same time, the institution of the substitute acquires an ambiguous functional meaning, when administrative responsibility is replaced by disciplinary responsibility, and disciplinary proceedings and its elements, as components of disciplinary responsibility, can be replaced by elements of the administrative-jurisdictional (administrative-delict) process, in particular, evidence in disciplinary proceedings can be collected in accordance with the norms procedural administrative-delict legislation and, thus, be legalized in disciplinary proceedings. Key words: administrative responsibility, disciplinary responsibility, substitute, military serviceman.

Interest as Grounds for Consumer Rights Abuse Classification

The abuse of subjective civil right is one of the most difficult legal phenomena to understand, the roots of which go back to the time of Ancient Rome. There is more or less consensus in civil law regarding the criteria for a civil tort, but there is no consensus on the identification of abusive actions. Studying a case of abuse of the right by consumers, the author proves that the key role in solving this problem can be in the interest that determines the aim of all the powers provided for by law for this subject: the satisfaction of personal or family needs. In this context, the ratio of objective and subjective interests, as well as the impact of the process of their implementation on the mechanism of law enforcement, is analyzed in detail. At the same time, it is concluded that interest is not a universal basis for recognizing dishonest behavior as an abuse of the right, i.e. depending on the type of legal relationship and the specifics of the legal status of its participants, the criteria for classifying the abuse of the right may vary. This explains the ongoing long-term discussion about the essence of this phenomenon.

A Review of the Research on Transnational Environmental Tort Law

The accelerated pace of globalization has brought about rapid economic development, while the number of transnational environmental pollution problems is also increasing. On the one hand, the imbalance of the global economy has intensified, and transnational corporations have taken advantage of the low cost and low standards of environmental protection in developing countries to transfer polluting industries; On the other hand, with the awakening of citizen’s environmental awareness in developing countries, more and more people realize that their own legal provisions are not enough to compensate for their losses, so they choose to go overseas to appeal to the home country courts. Based on the review of relevant literature in China and foreign theoretical circles in recent years, this paper summarizes it from three aspects: jurisdiction, application of law and transnational corporations, with a view to promoting the improvement of China’s transnational environmental tort law.

Suggestions for a Revision of the European Smart Robot Liability Regime

In recent years, the need for regulation of robots and Artificial Intelligence, together with the urgency of reshaping the civil liability framework, has become apparent in Europe. Although the matter of civil liability has been the subject of many studies and resolutions, multiple attempts to harmonize EU tort law have been unsuccessful so far, and only the liability of producers for defective products has been harmonized so far. In 2021, by publishing the AI Act proposal, the European Commission reached the goal to regulate AI at the European level, classifying smart robots as ”high-risk systems”. This new piece of legislation, albeit tackling important issues, does not focus on liability rules. However, regulating the responsibility of developers and manufacturers of robots and AI systems, in order to avoid a fragmented legal framework across the EU and an uneven application of liability rules in each Member State, is still an important issue that raises many concerns in the industry sector. In particular, deep learning techniques need to be carefully regulated, as they challenge the traditional liability paradigm: it is often not possible to know the reason behind the output given by those models, and neither the programmer nor the manufacturer is able to predict the AI behavior. For this reason, some authors have argued that we need to take liability away from producers and programmers when robots are capable of acting autonomously from their original design, while others have proposed a strict liability regime. This article explores liability issues about AI and robots with regards to users, producers, and programmers, especially when the use of machine learning techniques is involved, and suggests some regulatory solutions for European lawmakers.

Suggestions for a Revision of the European Smart Robot Liability Regime

In recent years, the need for regulation of robots and Artificial Intelligence, together with the urgency of reshaping the civil liability framework, has become apparent in Europe. Although the matter of civil liability has been the subject of many studies and resolutions, multiple attempts to harmonize EU tort law have been unsuccessful so far, and only the liability of producers for defective products has been harmonized so far. In 2021, by publishing the AI Act proposal, the European Commission reached the goal to regulate AI at the European level, classifying smart robots as ”high-risk systems”. This new piece of legislation, albeit tackling important issues, does not focus on liability rules. However, regulating the responsibility of developers and manufacturers of robots and AI systems, in order to avoid a fragmented legal framework across the EU and an uneven application of liability rules in each Member State, is still an important issue that raises many concerns in the industry sector. In particular, deep learning techniques need to be carefully regulated, as they challenge the traditional liability paradigm: it is often not possible to know the reason behind the output given by those models, and neither the programmer nor the manufacturer is able to predict the AI behavior. For this reason, some authors have argued that we need to take liability away from producers and programmers when robots are capable of acting autonomously from their original design, while others have proposed a strict liability regime. This article explores liability issues about AI and robots with regards to users, producers, and programmers, especially when the use of machine learning techniques is involved, and suggests some regulatory solutions for European lawmakers.

From Linear to Circular Value Chains: A Role for Tort Liability in Recycling Practices?

AbstractThis article examines the extent to which tort law can be used to incentivise the creation of the circular value chain and the design of products that live up to the requirements of the circular economy. In doing so, this article focuses in particular on the concepts of product liability and value chain liability. It shows that whereas the product liability framework has clearly been thought out to fit the linear value chain, central product liability concepts are also sufficiently flexible to be able to take in circularity considerations. The same goes for the concept of value chain liability. This article also shows how both types of liability become intertwined in the circular value chain.