Zasada bezwzględnej odpowiedzialności za szkodę wyrządzoną umyślnie (według kodeksu cywilnego)

Abstract

This article discusses the principle of absolute liability for dolus under the liability for damages included in the Civil Code. Comments on the role of this principle and the manifestations of it in special laws providing for liability for intentional damage (e.g. Article 122 of the Labour Code), as well as those provisions of the Civil Code which are not compensatory in nature (e.g. Article 558 of the Civil Code), must therefore necessarily remain outside the scope of consideration. It is worth noting, however, that the principle of absolute liability for dolus excludes far beyond regimes of liability for damages and is one of the fundamental principles of the legal order (of both a public and private nature). The rule in question is intended to protect victims as a result of the intentional behaviour of the perpetrators of the damage. It therefore appears as one of the basic social norms. The universality of this principle means that it has an impact on the interpretation of civil law provisions that may come as a surprise, leading to solutions not previously considered in the literature. This is particularly the case when the repression resulting from the principle of liability for dolus dictates that the mechanism for the mitigation of damages should be limited or even abandoned. The above theses should not be read as a form of ,,Americanisation" of domestic liability for damages. This is because the principle does not include enrichment of the injured party at the expense of the perpetrator. Full compensation is maintained. Instead, this rule renders irrelevant the circumstances normally affecting the reduction of the compensation due; it implements intensive repression. The provisions allowing for the modification of the amount of compensation are part of what is known as the judiciary. The judge becomes empowered to assess the fairness of the size of the compensation. Since malicious fault defies all equity, judicial justice is not justified (he who comes to equity must come with clean hands). It is replaced by an absolute order to charge the perpetrator with damages and an absolute prohibition to charge someone other than the injured party who caused the damage intentionally to themselves.

A Roman paremia states: culpa lata dolo equiparatur. It should not be taken literally – there is a big difference between even the gravest negligence and malicious intent. Indeed, it may be that the perpetrator will seek to avoid harsher liability by hiding behind ignorance of things that everyone knows. For this reason, intentional fault and gross negligence are sometimes equated. However, this is a technical procedure aimed at eliminating the malicious aspirations of the perpetrator of the damage. Paradoxically, therefore, the frequently occurring equation of gross negligence and intentional fault confirms the existence of the principle of absolute liability for dolus. This is because it precludes the avoidance of the stricter liability that this rule establishes.