RICERCA ITALIANA     

FAMILY AND LIABILITY

Università degli Studi di Bologna

Abstract

In the field of family relations and protection of the human being, recent years have witnessed the development of particular issues and areas of concern, both on the legislative and on the interpretive side. With regards to such problems it is possible to map the development of more and more significant legal remedies. Thus, the goal of this research – based on a multidisciplinary methodology and that will privilege a comparative approach – focuses on surveying and analysing new hypothesis of civil and criminal liability that, both in the Italian and in foreign legal systems, appear to be connected to the existence or the exercise of legal positions inherent to family relations. Furthermore, the research aims at assessing the transformations, both structural and functional, that took place within the realm of civil and criminal liability with respect to family law, in order to identify and put forward new patterns and understandings. <<<

Principal Investigator

Michele SESTA Università degli Studi di BOLOGNA

Research Objectives

In the field of family relations and protection of the human being, recent years have witnessed the development of particular issues and areas of concern, both on the legislative and on the interpretive side. With regards to such problems, specifically outlined below, it is also possible to map the development of more and more significant legal remedies. The goal of this research, thus, focuses on surveying and analysing new hypothesis of liability, both civil and criminal, that become true not only in the context of intra-family relations, but also in situations that involve third parties alien to the family. The research units, in order to identify the most effective remedies of Italian law, will draw from the insights offered by other European and non-European legal systems which, in some circumstances, provide for more adequate and innovative forms of protection. The analysis of foreign experiences also allows to collect the thrusts coming from several doctrinal backgrounds, and to privilege an examination of different themes of family law in a comparative perspective, so as to enable a measurement of the distances existing among different legal systems in this realm of private law or to remark possible areas of convergence or divergence in the evolution of family law.
In fact, the research aims at analysing, in a comparative perspective, several aspects, such as the relationship between social conceptions of the family and of its internal organisation and the application of tort law within the group. In other words, members of the research units aim at assessing the transformations, both structural and functional, that took place within the realm of civil and criminal liability with respect to family law, in order to identify and put forward new patterns and understandings.
To begin with, as far the topic of tort law remedies is concerned, it is necessary to remark that the new perspectives that are coming to surface, especially through case law, force the legal scholar to assess, in light of the evolution that characterises every legal system, situations that may embody vested interests. The final goal of the research is, thus, that of identifying how the family, traditionally considered immune to tort law, may instead be deemed to be able to disclose vested interests on grounds of art. 2043 c.c.
In this perspective, the final result that should be attained is that of assessing the conditions and the limitations under which family relations, given the particular environment of affection in which they take place, may trigger demands of damage compensation. As mentioned above, the Units will try to identify new solutions in light of insights that foreign experiences may lend to the evolution of the Italian debate on the ground of both family law and tort law.
As far as criminal law is concerned, the research aims at examining both the specific legal responses to protect the family and family relations, and several rules of the code and of single Acts which connect criminal consequences to the existence of family relations.
The study of singles crimes, which will take into account the most recent judicial and doctrinal contributions, will be aimed at verifying the effectiveness and efficacy of the protection that criminal law affords to the family.
The object of the research is, on the one hand, to ascertain if criminal law in force is really fit for guaranteeing the protection pf family's interests; on the other, to verify whether recourse to penal sanction is a "necessary" legislative choice, or if some interests, for example the one underlying art. 570 of the penal code (violation of family's assistance duties), can find best protection through other means, such as civil law. Furthermore, particular attention will be dedicated to the analysis of the most important interpretive and applicative problems that touch upon criminal law and the family, as a result of ongoing social change. In this perspective, the research will particularly highlight methods and limits of the recognition of the "de facto family" by criminal law; moreover, it will examine and assess – also from a de jure condendo perspective – the impact of recent crimes introduced by the legislature for regulating the consequences of progress in medicine and biology.
Just as the civil law inquiry, for criminal law, too, the research will be marked by a significant comparative connotation and will embrace, thus, the analysis of major legal institutes that European legal systems (with particular regard to the Spanish, German, French, and English ones) provide for the protection of the family and of family relations. This is because a further goal of the project is that of assessing whether, in view of the growing "Europeanisation of criminal law", choices of criminal policy made by the legislature for the protections of unanimously agreed interests are truly in line with the process of "harmonisation" of single criminal legal systems. <<<

Timescale

24 months

National and international background

Recent court decisions have put to the attention of theoretical analysis some issues linked to the relationship between the family and tort law rules, both with regards to the occurrence of criminal and civil wrongdoings within the family group, and with regards to the external realm of the theme, namely hypothesis of torts or crimes done by one family member to a third party. From the perspective of civil law, in reasoning upon court decisions legal scholars did not fail to underline the innovative character of the theme at hand, in particular with respect to findings in favour of the family member that had taken to court another member of the group claiming the application of tort law. At the same time, theoretical efforts are directed towards the comprehension of the connections between evolution of family relations and new approaches adopted by courts, as well as the systematic consequences involving structural and functional elements of tort law.
In this context, one finds of particular relevance the topic of damage compensation descending from the infringement of conjugal duties because, especially in light of the constitutional protection of the person and of paramount individual values, the problem arose of assessing whether it would be possible to consider applicable the mechanism of civil liability when one of the spouses appears responsible for the violation of conjugal duties, especially when violations are reiterated and particularly serious.
Both courts and legal scholars have put forward the possibility of applying rules of civil liability to relations between spouses, because the judicial declaration of ‘fault' (addebito) of one of them is, in many cases, incapable of offering an adequate remedy for those negative consequences that descend from the unlawful conduct of one of the spouses which infringes upon legitimate interests of the other.
The most relevant aspect of the research concerns, thus, the general clause on torts enshrined in art. 2043 of the civil code (c.c.). According to the approach taken by the Supreme Court, that provision encapsulates the rule that compensation may be granted every time it appears that the legal system cannot allow costs of a damage to be borne by the victim only, costs that should instead be transferred upon the perpetrator because the conduct infringes legally relevant interests (independently from their formal qualification as ‘rights'). Therefore, even in the context of family relations art. 2043 should be applied whenever it is established that the conduct of one of the spouses has caused a damage capable of undermining the rights of the other.
Equally problematic and rich in practical implications is the possibility of applying rules of civil liability to other aspects which characterise the relation between spouses. One wonders, in fact, whether legal consequences should be drawn by the absence of sexual activity within marriage, by its nullity caused by one of the spouses, by the unlawful use of the last name of the former spouse, or by the possible prejudice to the right to be a father deriving from the decision of the wife to interrupt her pregnancy. Further questions could arise in the field of patrimonial relations between spouses, because it is possible to envisage that compensation could be claimed by one spouse against the other when there has been an unjustified denial to take part in a deed of property acquisition (art. 179(2), c.c.), or when one spouse dissipates the goods pertaining to the de residuo community.
Significant implications of civil liability in the family context may be observed also where the infringement of vested interests takes place within the relationship between parents and children. In this context, particularly interesting is the theme of compensation of damages caused to children by the violation of parental duties, which can already be tackled by the specific remedy foreseen by artt. 330 ff. c.c. Under this point of view, several questions arise, because it is disputed the application of tort law to the child, both when the parent that has custody hinders the relationship between children and the former spouse, and when the parent without custody does not provide financial support or withholds further contacts with the child. The expansion of art. 2043 c.c. should also be assessed in the case of torts deriving from the exercise of parental ius corrigendi, or within the administration of the child's estate.
The theme of domestic violence is also of particular interest. In this context, the analysis of new rules introduced in the civil code (artt. 342 bis and ff. and modifications to artt. 330 and 333) and in the codes of civil and criminal procedure by Acts n. 149/2001 and 154/2001 highlights the meritorious intent of affording a more effective protection to individual rights of single components of the family. In fact, the law now entrusts courts with the possibility of adopting urgent measures for the benefit of victims of domestic violence, of adopting restraint orders directed to the author of that conduct, and of affording prejudiced family members a periodic allowance to be paid by the person responsible. On the other hand, however, the current system presents a few loopholes, especially when it does not foresee for the victim the possibility of claiming damage compensation. This remark suggests the need to investigate further the topic of defence mechanisms afforded to each spouse or cohabitant against the other with respect to wrongdoings of both patrimonial and non-patrimonial nature; in particular, it is remarkably important to assess whether those prejudices may only be tackled by rules governing family relations or if better protection might result from the application of civil liability rules in general.
Furthermore, implications of civil liability rules in the context of family relations can be observed when the infringement of vested interests comes from third persons outside the family. In this context, the problems consist in assessing the applicability of civil liability instruments in order to redress violations of human rights of children with respect to a range of potential hazards coming from the growing development of means of mass communication and techniques of diffusion of messages. Traditional problems posed by communication through the press and the television are tackled by Acts n. 47/1948, n. 1591/1960, and n. 223/1990, but existing regulation seems outdated under many points of view; in addition, new areas of concern emerge with the rapid development of new means of communication such as the internet. An additional aspect of interest concerns all those problems known as "procreation damage", albeit they involve interests of a kind completely different from those mentioned above. In this field, courts have not yet reached definite answers. Particular questions concern the fact-situation of "unwanted birth" following imperfect contraceptive medical treatment, and that of (in)correct information with respect to the state of health of the prospective child, so as to enable future parents to choose consciously whether giving birth or not. Case-law analysis is particularly relevant here.
The themes that the research unit intends to investigate show also important implications with regards to private international law, because it is certainly quite a challenging task to determine the law applicable to liability for facts that took place within families characterised by cross-border elements.
The significant relevance, descending from a growing mobility, of the family made up of people with different nationalities suggests the opportunity of highlighting adequately the importance of conflict of law rules suitable for ascertaining, case by case, the applicable law.
The scholarly and judicial debate on the themes illustrated above shows, however, insufficient attention to the current configuration of such problems in foreign legal experiences. A reflection on the theme "Family and responsibility", developed in a comparative perspective, would allow, first, to compare the trends that only now emerge in the Italian legal system with the more solid ones of other legal systems. In fact, in these systems it is possible to witness a steady decline of the principle of immunity applied to the family with regards to civil liability; principle that, for a long time, hampered the possibility of finding a family member liable for torts perpetrated towards another member of the group. The torts system, starting from the moment when it has been applied within the family context, has contributed to the eradication of the authoritarian character of such relations, so that its potential applicability has become a deterrence for abuses of power perpetrated by one member towards another. Moreover, by observing some more advanced social systems, such as the American legal system, one can mark a further step towards the comprehension of such an ongoing process, which coincides with the aspect of socialisation of costs determined by the recognition of civil damages through the transfer of risks upon insurance companies.
Thus, a lively debate and the development of a series of both normative and judicial experiences in foreign systems as well convinces one of the opportunity of enriching the research programme with a number of aspects pertaining to the theme in a comparative perspective, in order to analyse practical solutions adopted and theoretical proposals put forward in those legal systems.
This is a perspective that offers, thus, the possibility not only of enlarging the reach of the research, but also of grasping the connections existing between the attainment of new functional objectives by tort law, and social changes occurring within family relations.
So much said about the civil law aspects, it is still to be remarked how, from the point of view of criminal law, the law criminalizes several conducts in order to protect interests which may be referred to the family, both within the code and in other Acts. A cursory analysis of criminal rules reveals that the choice of the legislature is that of ensuring to the family a strong penal protection, not limited to the civil law statement of rights and duties descending from the family relation, but instead capable of connecting to the prejudice caused to family relations' interests the most drastic punishments among those available, such as the criminal one.
So much said, legal scholars are today busy with assessing the effectiveness and the efficacy of the protection afforded by criminal law to the family and analyse single crimes paying particular attention to the actual consequences of their application. On the one hand, it is in fact necessary to ascertain whether criminal law in force is really fit for guaranteeing the protection of family interests; whilst, on the other hand, it is necessary to wonder whether the recourse to penal sanctions is a fixed policy option, or if some interests can find best protection through other protective tools, such as civil law.
Current works on criminal law of the family cannot overlook interpretive and applicative problems, common to civil law and to other sectors of the legal system, too, connected to the ongoing evolution of society. The problem, thus, which involves both criminal and civil law of the family, is that of mapping methods and limits of recognition of the de facto family, because particularly relevant in today's society and because of the needs of protection that arise from it, also on the criminal level.
A further aspect greatly in need of deeper analysis is that of criminal law policy choices adopted as an answer to the progresses of medicine and biology. In this perspective intervenes the new Act on artificial insemination (n. 40/2004), which represents a new frontier of family criminal law. As the most recent scholarly work has shown, the criminal lawyer must face two issues: on the one hand it is necessary to ascertain whether the basic choices that inspired the new Act are compatible with a "personalistic" Constitution such as the Italian one, which places at the top of all values the respect of human dignity; and, on the other, it is necessary to investigate whether the use of criminal law tools is compatible with constitutional principles and whether the abundant use of punitive sanctions – both criminal and administrative – may be deemed to be in accordance with modern criteria of criminal policy. <<<