Document Type : Original Article
Authors
1 PhD student, Department of Law, Science and Research Unit, Islamic Azad University, Tehran, Iran.
2 Assistant Professor, Department of Public Law, Imam Baqir University, Tehran, Iran.
Abstract
Highlights
In the 19th century, he developed the risk theory of the state's responsibility, and today, in advanced countries, in order to respect individual freedom, according to this theory, the state is obliged to bear the damage to individuals in some cases, even if they have not committed any fault, because if the fault is As the basis of responsibility, many damages remain uncompensated, which is against fairness.
The proof aspect of this theory is based on the justification that due to the lack of efficiency and the necessity of fault in the realization of civil responsibility, another basis and criteria must be accepted for the realization of civil responsibility, which is the accountability of a person for his actions, regardless of whether He may or may not have committed a fault, therefore, according to the supporters of this theory, proof or proof of fault is not necessary to realize civil liability, and merely performing a harmful act causes the liability of the agent.
According to this theory, whenever someone creates a dangerous environment, whether it is conventional or unconventional, for example, the government creates nuclear tests or factories to create employment, he is responsible for it. But in the justification it is said: Expediency has entered into the essence of civil responsibility and has created new concepts, for example, transporting flammable substances on the roads is a dangerous work, but because its benefits are more than its harm, it is not a fault. It must be tolerated. Also, although some people are harmed, others are also benefited, but in response, it can be argued that in the light of the growth of the economic activities of the government and the management of factories by the government, the theory of the immunity of the government is no longer there. It is not defensible.
The emergence of this theory should be seen as a result of the industrialization of societies and as a result of the emergence of new legal issues that the theory of civil responsibility based on fault was not a suitable basis for their solution. Based on this, "Sally" and "Jussran", two French jurists, proposed a new basis for the realization of civil responsibility in general and civil responsibility of the government in particular, which became known as the theory of risk. It has been said that "this theory appeared for the first time in France from an opinion in the country's court that was issued on June 21, 1895. According to this opinion, the worker of a state-owned factory who was injured while working, without having to prove the fault of the employer (administration), will receive the damages."
Creating a dangerous environment by governments is one of the reasons for realizing the civil responsibility as well as the international responsibility of governments. Based on this, waste management is one of the actions that governments should take to eliminate the risks related to the harm of these materials. Due to the fact that the lack of waste management creates a dangerous environment, therefore, first of all, governments are obliged to minimize the amount of waste production in their country. In the case of damage to the environment, in some cases, fault liability and in other cases, risk-based liability has been accepted. Fault-based theory is the most traditional theory in environmental damage liability. Based on this, environmental damages cannot be claimed unless the fault of the causer can be proven. This theory, which is almost a common approach in the civil liability regime of Iranian law, cannot be a comprehensive basis. In fact, accepting this theory makes it difficult to compensate for many environmental damages. Regarding the responsibility based on risk theory, there is no need to prove the fault of the government, but the fact that the government takes an action in an activity that has an interest in it and leads to pollution and destruction of the environment, it must be responsible for the damages, regardless of whether in fact To be at fault or not.
Of course, the high risk of damage caused by environmental pollution caused by waste requires a revision of the rules of civil liability, which with these rules are based on the principles of absolute responsibility, where governments are responsible for their negligent actions, whether they are guilty or not. be replaced.
Today, the theory of risk is a suitable theory for compensation of environmental damages and can play an important role in strengthening the protection of the environment. In fact, based on the theory of risk, the polluter of the environment becomes objectively responsible. It can be deduced from the performance of the governments that the acceptance of the principle of risk-based civil responsibility is basically based on the pre-determined conditions in international agreements. The aforementioned performance shows that the goal of governments is to create an obligation to avoid dangerous activities, reduce the amount of these activities, and compensate for damages in case of loss or damage.
In the discussion of infectious diseases, the important point is to separate the creation of risk from the spread of risk. This means that causing a disease may be completely natural, but the government's role of action or lack of action in the spread of the disease entails the government's civil responsibility. Regarding the government's civil responsibility for infectious diseases, the issue should be examined in two main assumptions. The first assumption is related to those infectious diseases where the probability of spreading that disease is unpredictable. It should be explained here that the term "unpredictable" has a very narrow meaning and is only used in cases where the disease has no history and is a pure non-recurring event. It is obvious that diseases such as plague, influenza or other infectious diseases, once occurring in contemporary history, can be predicted in the following years, and a government cannot use the excuse that it does not know the exact time of the outbreak of the disease. is not to take preventive measures in this regard; Because, as we said, the goal of holding the government responsible for infectious diseases is to achieve stability and sustainability in preventing these types of diseases, and although the government's actions in informing the people and establishing and implementing restrictions such as quarantine It is only a superficial solution and the government is obliged to eliminate the causes and roots of infectious diseases as much as possible through extensive research measures, public vaccination, etc. The criterion of the predictability of the accident or its unpredictability is a universal criterion. Therefore, the government is obliged to provide advanced means to predict infectious diseases and prevent them, and it cannot absolve itself of responsibility on the pretext that it does not have the necessary facilities.
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