Protiprávní stav jako důvod vzniku objektivní odpovědnosti v českém soukromém právu

Abstract

The aim of this paper is to answer the question of why we need an unlawful state of affairs as a ground for legal liability. At its core is a polemic with Filip Melzer’s view that “a certain state of affairs cannot, strictly speaking, be described as unlawful in itself, but only the conduct of the legal subject that led to that consequence or state of affairs”. Its starting point is not “strict liability”, as we understood it until the adoption of the Civil Code in 2012, but the German concept of liability for endangerment (Gefährdungshaftung), which is based not on an unlawful condition but on liability for an increase in risk. For these reasons, I will first address the question of how liability for damages, as we have known and understood it under the 1964 Civil Code, differs from the obligation to compensate for damages, which is enshrined in the current and effective Civil Code. I then consider why we need “unlawfulness” (wrongfulness) to distinguish an unfortunate coincidence from an unlawful state of affairs, and why we do not merely distinguish legal events from unlawful states of affairs. Finally, I consider the concept of liability for endangerment (Gefährdungshaftung) itself and its weaknesses.