Solidariskt ansvar för ungdomar - en rättspolitisk diskussion

Sammanfattning: The purpose of this paper is to investigate how a change of joint responsibility for youths would correlate with the overall functions of tort law. The reason a change might be considered lies in a paper written by Kronofogdemyndigheten (Swedish state enforcement agency) and Barnombudsmannen (children's ombudsman) pointing out the negative economic effects the joint and several liability imposes on youths, and calling out for a study on how changes could be made. The general rule in Swedish law is that when several tortfeasors contribute to the same injury, they will be jointly responsible. In effect, this means the injured party can demand that any one of the tortfeasors pay the entire damage. The tortfeasor who thusly pays the whole damage may then exact what is reasonable from the other tortfeasors. The function of joint and several liability is to facilitate the payment of damages to the injured party. With joint responsibility it is sufficient that one of the tortfeasors has enough funds to compensate the injured party for him to be fully paid. When the compensation is adjusted due to any provision, the joint and several liability will be restricted and the tortfeasors may split the responsibility. For youths there are two provisions of compensation that are relevant. Compensation may be given on the grounds of the provision of compensation applicable to children and youth in 2 kap. 4 § SkL, the application of which is close to that of the general provision of compensation in 6 kap. 2 § SkL. These two provisions both contain an assessment by which the economy of the tortfeasor is a determining factor. If it is decided that the economic condition of the tortfeasor warrants an adjustment of the amount of damages, other factors will be assessed, such as injured party's need for compensation and weather the damage was caused intentionally or through negligence. Damage due to intentional acts should only be adjusted exceptionally and the injured party's need for compensation rules out adjustment. The provisions of compensation were put in place to prevent results that are clearly unjust, and to facilitate the readjustment of tortfeasors to society. Some of the overall functions of tort law are compensation, placement and distribution of costs and prevention. Compensation as a function of tort law has had a pivotal role in legislative work, while prevention is central in cases where tort liability occurs due to criminal acts. Changing the joint responsibility towards a divided responsibility for youths raises conflict with compensation and prevention as overall functions of tort law. The conclusion of this paper is nevertheless that it is possible to accomplish such a change without affecting the overall functions of tort law considerably and that there are legal policy reasons to do so.