"En borgerlig älsklingstanke" - en analys av föräldrars principalansvar i svensk skadeståndsrätt

Sammanfattning: During 2010, a stricter form of parental liability was introduced in Swedish tort law. The reform meant that parents, regardless of their own negligence would be held responsible for damages that their children caused through criminal acts. The new liability was unique in many ways. It was a deviation from the main principle in Swedish law, that you are only liable due to own negligence. It is in only in rare occasions that individuals have a strict or vicarious liability. Such forms of liability are usually reserved for legal persons. The purpose of the reform was also unusual. Introducing a stricter parental liability was meant to decrease youth crime. Said reform, which was laid down in law in the Liability for Damages Act, was in fact a criminal policy measure. Reforms that are primarily justified by its preventive functions are very uncommon in Swedish tort law, as the traditional view focuses on the victim. Restitution, i.e. that the victim is compensated for his or her loss, is therefore usually seen as the main function of damages in Swedish law. Preventive effects are just viewed as an added bonus. The stricter parental liability was meant to serve as a complement to the already existing form, called supervisory liability. This latter accountability was based on the culpa rule and the issue whether the negligence of the parent lead the child to commit an act causing the loss. In its announcement in media, the government argued that the stricter liability was needed as an addition as the former supervisory liability was too ineffective. Despite the announcement, the government failed to produce any facts that supported the statement. The vicarious parental liability is not absolute. In special cases, when it would be manifestly unreasonable to impose damages on the parent, the liability can be reduced. According to the travaux préparatoires damages should only be reduced in exceptional cases. This is also the view that Swedish courts has expressed while ruling over cases of parental liability. Despite the fact that the proposal regarding a stricter parental liability was strongly criticized, it was still implemented. Most of the criticism regarded the alleged preventive effects of the proposal. These effects are regarded as impossible to measure. This means that a set of laws that are based on prevention cannot be questioned for being ineffective. It is possible that the legislator introduced a stricter parental liability to be able to claim that measures have been taken in order to prevent youth crime, when in fact; the government has neglected taking, functional, yet expensive crime policy measures that would be more effective.