COMPLICITY IN TORT, OR WHAT IS MEANT BY CAUSING HARM “BY JOINT ACTIONS OR OMISSIONS”

Abstract

Unlike criminal law, tort law in Ukraine is not familiar with the doctrine of complicity. The closest analogue is Article 1190 of the Civil Code of Ukraine, which provides for joint and several liability in case of damage being caused “by joint actions or omissions”. However, there is no precise definition of what is meant by joint infliction (of harm) neither in the legislation nor in academic writings. Theoretically, two interpretations are conceivable – narrow and wide. Under the narrow interpretation, joint infliction means there are two or more principal perpetrators of the tort. Under the broad interpretation, joint infliction means there are two or more accomplices, regardless of their particular roles (principal perpetrator, organizer, abetter or instigator). In jurisprudence double standards are applied with regard to Article 1190 of the Civil Code of Ukraine. On the one hand, as soon as the harm caused by a crime is concerned, the courts require proof of “common criminal intent” in order to apply the article, i.e. proof that all the accomplices acted purposefully. On the other hand, when it comes to torts that do not qualify as crimes, the joint infliction may include negligent acts as well. The second approach, in particular, is employed in cases where the collision of two cars causes damage to third parties (passengers, pedestrians, etc.). The article argues that the interpretation of ‘joint infliction’ should be unified: it should not vary depending on whether the tort is or is not a criminal offense at the same time. Implementation of the criminal law doctrine of complicity into tort law is fruitful as long as it is properly exerted. For the purposes of tort law reprehensible involvement shall encompass at least all the roles that are recognized in criminal law. Therefore, joint and several tort liability shall be imposed, apart from co-perpetrator, also on the organizer, abetter and instigator. Moreover, the range of persons whose involvement is legally significant from the perspective of tort law should be even wider than in criminal law. However, the exact contours of this range call for further research.