Legal Entities As Subjects Of Tort Liability Under Civil Legislation Of Ukraine And European Countries: Comparative Legal Analysis
Keywords:
legal entity, obligation, compensation, harm, employer, wrongdo-ing, fault.Abstract
The article is devoted to the study of the participation of legal entities in torting obligations under the civil law of Ukraine and European countries. The au-thor carried out a comparative analysis of civil legislation of Ukraine and the CIS countries, Germany, the Netherlands, France, Italy. It is indicated that the obligation as a result of harm to other persons generates a special delinquency, since there is a special liability subject and special conditions for its occurrence.
According to the Central Committee of Ukraine, the subjects of liability for damage caused by the employee is a legal or natural person with whom the em-ployee is in labor relations; the customer for the damage caused by the contractor who acted on the instructions of the customer; an entrepreneurial society or a co-operative for the damage caused by their members (members) during their business or other activity.
The content of the content of these norms was influenced by the ideas of the German Civil Code, according to which the obligation to compensate for damage in-flicted by another person relies on a person who has attracted her to perform any actions (employer, customer, etc.), as well as the principal, whose interests are rep-resented by the assignee. The German Civil Code is similar to the design of the rules of tort liability for damages inflicted by another person under the Central Committee of the Netherlands, according to which the trustee also belongs to the subjects of liability for damage caused by other persons, if the damage was caused by his repre-sentative to a third person (before the victim meet representative and trustee). It is noted that the provisions of the Central Committee of the Netherlands deserve at-tention because the representative performs legal actions not only at the expense of the principal, but also on his behalf.
According to the French Civil Code, the owners and employers are liable for the damage caused by their employees and workers in the performance of their last duties for which they were hired. The French court considers the fact of harming employees and workers as a fact of damaging those who are required to follow the instructions and instructions of the employer in the performance of their duties. However, the latter have the right to refuse, if it concerns their professional sphere and does not correspond to the professional sphere of the employer.
In order to create such an obligation, the Central Committee of Ukraine re-quires damage to the employee during the performance of his labor (official) duties; fulfillment by the contractor of the customer’s task; undertaking business or other activity on behalf of a partnership or cooperative. Such a requirement is also made under the civil legislation of the CIS states, as well as the Netherlands, France, and Italy. Therefore, if the latter went beyond the scope of their duties for which they are hired, they are responsible independently.
It is concluded that the obligation to compensate for damage arises for a legal entity or a physical person, a customer, an entrepreneurial society or a cooperative in the event of unlawful harm and on the basis of guilt.
The concept of «coincident guilty» of a legal entity is described, according to which the unlawful actions of employees of a legal entity carried out in the course of performing their labor duties are considered to be unlawful guilty acts of the legal entity itself. This is explained by the fact that the employee in this case legally em-bodies their will, and the legal or natural person realizes his civil right and ability through actions of employees.
The duty to indemnify the damage arises for the employer in the event of his unlawful assignment. The requirement for the wrongful act of the actions of their performer, which resulted in damage, is also enshrined in the German Civil Code. At the same time, the responsibility of the head for the damage inflicted on his subor-dinates depends entirely on the existence of his fault (leader) in causing harm, and not from the fault of the subordinate (for the qualification of a tort enough to cause damage to the wrongful act). The duty to indemnify the damage arises for the em-ployer in the event of his unlawful assignment. The requirement for the wrongful act of the actions of their performer, which resulted in damage, is also enshrined in the German Civil Code. At the same time, the responsibility of the head for the dam-age inflicted on his subordinates depends entirely on the existence of his fault (lead-er) in causing harm, and not from the fault of the subordinate (for the qualification of a tort enough to cause damage to the wrongful act).
German case law justifies the principle of the obligation of an entrepreneur to relieve the subordinate. If the subordinate, while performing the work entrusted to him, causes damage to a third party, he may demand from his employer, if his ac-tions were not intent or gross negligence, to release him in whole or in part from a third party claim for damages.
It is concluded that the obligation to compensate for this delict does not arise without the fault of the actions or omissions of the employee, contractor, member (member) of the business association, the cooperative.
The idea of assigning to a subordinate, together with the employer, the obliga-tion to compensate for the harm caused to a third party intentionally or with gross negligence is presented to the Central Committee of the Netherlands. The correct-ness of such a position of the Central Committee of the Netherlands proves to be correct, since a person by age or state of health may be incapable of being aware of, that is, non-profit-making, then such a person can not, accordingly, be charged with a duty to lodge a tort.
The conclusion is made on the necessity of st. 1172 of the Civil Code of Ukraine in the new edition.
References
2. Novitsky I. B. General doctrine of the obligation / I. B. Novitsky, L. A. Lunts. – M. : Jurisdat, 1950. – 416 p.
3. Soviet civil law: [textbook for law schools] / [ed. S. N. Bratusi]. – M. : Gosyuriz-dat, 1950. – 679 p.
4. Fleisits. E. A. Obligations from causing harm and from unjust enrichment / E. A. Fleisits. – M. : Gos. Publishing house of the jurist. lit., 1951. – 239 p.
5. Yaroshenko K. B. Special Cases of Responsibility for Causing Harm / K. B. Yaroshenko. – M. : Jurid. lit., 1977. – 81 p. – (Series: B–chka nar. Judges).
6. Agarkov M. M. The problem of obligations from causing harm. The co-report at the First Scientific Session of VIUHUN / M. M. Agarkov // Selected Works on Civil Law: [in 2 volumes] – M. : JSC «Center YurInfoR», 2002. – T. II. – P. 218–246.
7. Antimonov B. S. Foundations of contractual liability of socialist organizations / B. S. Antimonov. – M. : Jurid. lit., 1962. – 175 p.
8. Smirnov V. T. Obligations arising from the infliction of harm / V. T. Smirnov. – L. : Izd–vo Leningr. University, 1973. – 72 p.
9. Khalfina R. O. General doctrine of the legal relationship / R. O. Khalfina. – M. : Jurid. lit., 1974. – 351 p.
10. Bobrova D. V. Problems of tort liability in Soviet civil law: the author’s ab-stract. diss. for scientific research. degrees of Doct. Jur. Sciences: spec. 12.00.03. «Civil law; family law; civil process; international private law «/ D. V. Bobrova. – Kharkov, 1988. – 56 p.
11. Cherepakhin B. B. Voluntary formation and expression of will of a legal entity / B. B. Cherepakhin // Jurisprudence. – 1958. – No. 2. – P. 43–50.
12. Civil Law of Ukraine: [curriculum vitae]. / Yu. V. Belousov, V. A/ Vatras, S. D. Hrinko and others. ; [ed. R. O. Stefanchuk]. – K. : Legal unity, 2009. – 536 p.
