Children in Tort Law

 

 
  The Project

Summary

1. Purpose and background of the project

2. Full Description of the Project

3. Relevant Scientific Literature

4. Organizational Issues

5. Schedule and timetable

6. Tasks

 

1. Purpose and background of the project

1.1. Research Topic

It is a well-known fact that in the Area of International Law several texts acknowledge the necessity of awarding special protection to children. Thus Art. 25.2 of the Universal Declaration of Human Rights[1], provides that “motherhood and childhood are entitled to special care and assistance.  All children, whether born in or out of wedlock, shall enjoy the same social protection”. The Declaration of the Rights of the Child,[2] acknowledges in its Preamble that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth" and adds in its Principle 8 that “the child shall in all circumstances be among the first to receive protection and relief”.

The European Constitutions enacted around the second half of the 20th Century and afterwards have also considered that children deserve a special protection. Thus, for instance, the Spanish Constitution 1978 (CE-1978), besides ensuring that  “children shall enjoy the protection provided in international agreements which safeguard their rights” (Art. 39.4) establishes that “public authorities shall assure the complete protection of children…” (Art. 39.2) and that “parents must provide their children, born in or out of wedlock, with assistance of every kind during the time they are minors and in other cases where it is legally proper” (art. 39.3).

In Germany, the Federal Constitution confers upon the governments the power  to regulate the freedom of press and speech in order to protect children (Art. 5 para 2 Grundgesetz of 23rd May 1949, BGBl. 1949 p. 1). Though limited in scope, this provision is widely regarded as a basis for governmental intervention in any area of law and of regulation of activities otherwise legal and protected for the purpose of protecting children in modern society. Even more important, governments are positively bound to take measures aimed at protecting the family and at supporting parents in their efforts to provide their children with an education (Art. 6 para 1,  2 Grundgesetz). Finally, the Federal Constitutional Court, in a famous decision, has held that the fundamental rights guaranteed by the Federal Constitution must be taken into account in framing rules of tortious liability and applying such rules to minors.[3]

In Austria the constitutional law does not emphasise the protection of children, but the old Civil Code from 1811 stresses that minors and even unborn children enjoy the special protection of the law (§§ 21, 22 ABGB).

The national legislators have developed this protection in the different areas of law. However, in the area of tort law the protection of children in Europe is so far patchy and among European legal writing it has not been dealt with in a comprehensive way.

In the current tort law studies the problems that affect children either as tortfeasors or as victims are not treated as the two sides of the same coin, but as part of the general analysis of the problems involved in the different areas of tort law (capacity; fault liability; liability of the parents, wards, teaching institutions; road traffic liability; contributory negligence, etc.) without a unifying thread.

The unifying thread of the problems related to children in tort law should be the general principle of protection of children generally acknowledged by international instruments and national provisions and by the necessity of striking a balance between this need of protection, on the one side, and the need either to protect victims when children are tortfeasors or not to impose too heavy burdens on tortfeasors when children are the victims. This comprehensive treatment is even more urgent if we bear in mind that from the last two decades several European legal systems have started to pass specific rules related to children in different areas of tort law and that from an European perspective the situation of children in tort law is still rather disparate. Moreover, the development of the Internet society creates new possibilities for children to be both wrongdoers and victims.

It is also well known that in the last decades the European perspective in private law has proven very productive. Not only for the benefits that the comparative method can bring to the national legislators in their need to adapt the rules to the progress of society but also for the tools that it provides to the understanding of  the different European legal cultures and to laying the foundations for an approximation of the European legal systems.

The members of the European team that submits this Project have already been involved during the last years in different projects that aim to lay these foundations in the area of tort law. Some members of the team (Prof. Koziol,Vienna;Prof. Comandé,Pisa;Prof. Martín-Casals, Girona) belong to the “European Group on Tort Law” which endeavours to draft a set of European Principles on Tort Law.

Prof. Koziol is also the director of the European Centre of Tort and Insurance Law (Vienna), a Centre that does research on tort law in a wide range of countries and pays special attention to major developments; furthermore, Prof. Koziol is a member of the commission which is drafting a new Austrian law of damages.

Prof. Comandé is actively involved in several international research projects involving EU scholars and non EU ones. Having studied in the USA he developed with prominent scholars in the highest ranked Universities in that country.

Prof. Wagner (Bonn) has also a long standing in the area of tort law and comparative law. He is co-author of one of the leading German books on tort law and has worked on projects for the reform of tort law in Germany in the past, such as the effort of the German Ministry of Environmental Protection to establish a system of collective enterprise liability with respect to toxic torts and other damages with environmental ramifications. Here, the idea was to extend the well-known system of workers compensation schemes to the field of environmental policy. Over the last decade, a major focus of his research has involved the interaction of insurance schemes, both public and private, with traditional tort law.

This Project will be coordinated by the European Centre of Tort and Insurance Law (Vienna, Austria) and the Research Group of European Private Law (University of Girona, Spain) and will take into account the legislation in force in the four European countries involved, the decisions of their courts and their legal literature. It will also take into account the guidelines provided by drafts that, at different stages of evolution, are being discussed now, such as the German Zweites Gesetz zur Änderung schadensersatzrechtlicher Vorschriften (as of 19 February 2001)[4] and the Austrian draft of a new law of damages. Occasionally it will also refer to the Swiss Draft of the Bundesgesetz über die Revision und Vereinheitlichung des Haftpflichtrechts (Haftpflichtgesetz)[5] and to legislation, courts decisions and legal literature of other European countries.

1.2. Linkage to any related existing national Projects

A) Austria

As the Austrian Ministry of Justice has started renewing the whole law of damages, this Project will be an important groundwork for the new draft. Prof. Koziol is member of the Drafting Commission.

B) Germany

In Germany, research efforts aimed at establishing a basis for further approximation or even harmonization of the several European systems of tort law by way of comparative legal research enjoy considerable support by public institutions, such as the German Research Foundation (Deutsche Forschungsgemeinschaft).

Moreover, considerable research has been conducted in the fields of psychology and medicine in an attempt to establish a factual basis concerning the mental and physical capabilities of children.

C) Italy

In Italy this project is framed in a long line of research in the field of tort law pursued at the Scuola Superiore S. Anna. In addition to the research tasks of the European Group on Tort Law, comparative research and teaching on tort law (e.g. medical malpractice and information society) is currently performed in interdisciplinary teams. Teams are participated by lawyers, medical doctors, engineers, and economists.

A special effort in the participation to these project will be devoted to the understanding of possible needed changes in legal rules for the protection of children  (as potential victims) or from their tortious acts in the information society. The leading criterion of analysis will be the protection of human dignity in an information environment that is not necessarily a “friendly” or useful one.

D) Spain

In Spain this Project is related to the research Project “La elaboración de los ‘European Principles on Tort Law’ (EPTL). Aportaciones desde el Derecho de daños español” (SEC 2000-0579) [the Drafting of the European Principles of Tort Law: Contributions form Spanish Tort Law] awarded by the Spanish Ministry of Science and Technology for the periods 2000-2002. The main aim of the Project is to contribute, from the point of view of Spanish Tort Law, to the preparation and drafting of a set of European Principles of Tort Law. The preparation of the European Principles started in 1993 by the setting up of the European Group on Tort Law, to which Prof. Martín-Casals joined in 1998. As stated before, other applicants of this Project (Prof. Koziol and Prof. Comandé) are also members of the European Group on Tort Law.

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[1]    Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.

[2]     Adopted and proclaimed by General Assembly resolution 1386 (XIV) of 20 November 1959.

[3]     Federal Constitutional Court (Bundesverfassungsgericht), 13. 8. 1998 – 1 BvL 26/96, Neue Juristische Wochenschrift 1998, 3557.

[4]     The text of the Draft is available in http://www.bmj.bund.de/inhalt.htm (Date of consultation: 11.5.2001).

[5]     The text of the Draft is available in http://www.ofj.admin.ch/themen/haftpflicht/intro-d.htm  (Date of consultation: 11.5.2001).

 

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