Право і безпека (Mar 2024)
Legal liability: seven doctrinal approaches to understanding its essence
Abstract
The article provides a critical analysis of the civil law doctrine of understanding the “legal liability” category. Seven main approaches to the interpretation of the category under study are identified and their advantages and disadvantages are highlighted. The author concludes that neither current legislation nor legal doctrine is consistent on the issue under study. The author emphasises that the doctrine of legal theory distinguishes two types of legal liability: positive (relating to an offence not yet committed) and negative (relating to an offence already committed). The critical analysis of this approach is that such different legal phenomena as proper performance of duties and liability for their violation cannot be covered by the same legal concept – “liability”. As a result, the author makes a reservation that positive responsibility can be spoken of as a type of social liability, but not legal one. Thus, in the context of civil relations, legal liability should be referred to as negative liability. Positive liability is rather a moral phenomenon, which consists in the subject's conscientious (responsible) fulfilment of all legal principles. Based on the analysis of the doctrinal approaches to understanding the category of “legal liability” and their critical assessment in the legal literature, it has been noted that it is inappropriate to formulate a universal (generally accepted) definition of the concept under study today. This assertion is based on the fact that in many cases, experts seek to combine numerous and diverse features of legal liability into a definition which leaves out specific manifestations of various aspects of its phenomenon. It has been proved that the current doctrinal approaches to the understanding of legal liability can be reduced to two main areas: its study as a form of state coercion/influence or as a protective legal relationship.
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