Rafał Szczepaniak 

wydawnictwo@uksw.edu.pl


Wydział Prawa i Administracji, Uniwersytet Adama Mickiewicza w Poznaniu Polska

Two phenomena are understood by the author under the term of stratification of tort liability of public authorities. The first of them is the fact that the regime of tort liability of public bodies diverges to some extent from the shape of the tort liability of private entities, including the organizational units of the private sector (external stratification). The second one consists in the fact that within the functioning of the state and other public sector entities one can distinguish different regimes of tort liability (internal stratification). The author poses the question about the meaning and the criteria for the existence of these stratifications. In the first part of this publication the author presents the view that is dominant in Polish jurisprudence and literature that Article 77 Paragraph 1 of the Constitution as well as Articles 417 – 4172 of the Civil Code enacting tort liability of public entities on the basis of risk, and thus making the liability independent of guilt, refer only to cases where the injury was caused by behavior classified as classic acts of governmental authority, such as the issuance of an administrative and normative act, a judgment or some actual activities. Otherwise, public sector entities are liable for damages on general principles, and therefore guilt must be proved by the injured party. The author argues against this dominant view. Firstly, he raises arguments drawn from the analysis of the history of the formation of the regime of tort liability of public bodies from the late nineteenth century. In this regard, particular attention is paid to the idea of social solidarity and equality with regard to public burdens which found their fullest expression in the so-called French school of Bordeaux. He notes that the ideas developed by the school are still valid nowadays. Secondly, he raises the arguments drawn from the modern science of administrative law. He notes that the classical dichotomy and division of the activity of entities of public law into acts of governmental authority and acts from the sphere of dominion for the most part are no longer compatible with today’s realities and with the ways in which administrative authorities perform the tasks assigned to them. The author also notes some looseness and inconsistencies in the Polish Constitutional Court, which, contrary to frequent assertions, has by no means presented a consistent understanding of the term of “the activities of a public authority organ” that is key to the subject discussed here. In conclusion, the author advocates a broad interpretation of Article 77 Paragraph 1 of the Constitution and Article 417 Paragraph 1 of the Civil Code, so as to extend its scope to normalize the largest possible class of damages caused by the unlawful action of a public sector entity. The author excludes from its scope only those cases where the state, local government units or more precisely some entities with their participation perform typical business activity and, consequently, have the status of entrepreneurs or business entities.