Znaczenie zasad słuszności w odpowiedzialności odszkodowawczej władzy publicznej

Abstract

In the Polish legal system we have three principles of responsibility in the regime of torts. They are following: principle of guilt, principle of risk and principle of justness. This text deals with application of principle of justness in situations when the loss is caused by the public authority. This article justifies a thesis that it is a exceptional institution of obligation law. Art. 417[2] of the civil code is connected with the general constitutional right for compensation of the loss caused by the public authority. According to the regulation from art. 417[2] of the civil code this right is based on the three conditions: – the public authority is not responsible according to general principles, because the conduct of the public authority was not illegal, – the existence of damages, but personal only, – the legal conduct of the public authority, as result of an act or an omission, – and the causal link between that conduct and the damage. The second and the fourth conditions are the same like in the institution of responsibility on the general principles. The institution of liability on the justness principles is distinguished by the first and the third conditions. This right is limited by description of kind of damages. It must be underlined that only personal damages for example a bodily injury and a disturbance of health are in the scope of this institution. The damages in estate are excepted. The new role of justness regulation is that this rule provides liability for loss caused by the legal conduct of the public authority. This regulation is applied when it is not possible to claim the redress of damages on the general principles, but the principle of justness justifies the compensation. The main problem is the answer the question when principle of justness requires the redress of damages. The scope of obligation to redress damage is limited for two reasons: the first - the kind of damage and the second – the kind of conduct, because only legal conduct of public authority can be a reason of damages. When the loss is caused by legal conduct of public institution such for example as public schools or public hospitals which are not authorities, then art. 417[2] of the civil code can not be applied. For those reasons it is an exceptional institution of obligation law and it plays a new role.