En defekt lagstiftning? - Om föräldrars skadeståndsansvar i 3 kap. 5 § SkL

Sammanfattning: In September 2010, a new basis for liability for someone else's negligence was introduced in Swedish tort law. Since then, parents are held strictly liable for damages that arise from a child's criminal offence. The purpose of the rule was to emphasize the parents' responsibility for their children and, by extension, to reduce juvenile crime. The reform was implemented despite widespread criticism from the consultation bodies and from the opposition in Parliament. The Swedish National Council for Crime Prevention (Brå) has evaluated the reform on behalf of the government. The Council presented its report at the end of 2017 and the evaluation pointed to various negative effects of the reform. Brå first proposed that the rules on parents' strict liability should be abolished, and secondly that the rules should be improved. Despite this, no shortcomings have been fixed yet. The essay examines the rule of parents' strict liability in Chapter 3 Section 5 of the Swedish Tort Liability Act (in Swedish skadeståndslagen (1972: 207)) and the possibilities of mitigating the liability in accordance with Chapter 3 Section 6 and Chapter 6 Section 2 of the Tort Liability Act. An empirical study has been conducted to answer several questions that Brå—in the absence of statistics from various authorities—could not answer. In the study, a large number of district court judgements from 2018 were reviewed in order to answer various questions related to parental liability. The questions concerned the number of parents who were sentenced to pay damages and the gender distribution among them, the amount of the damages parents were sentenced to pay, the possibilities of mitigating the liability and what criminal offences the losses arose from. The only precedent from the Swedish Supreme Court so far—in which the main question concerned the mitigation of a parent's liability—has also been examined, and the impact of the case (NJA 2015 s. 482) in the judgements of the district courts has been examined. The results of the examination and the empirical study indicate that several shortcomings in the legislation need to be addressed. Parents' liability should be individual so that no parent is disadvantaged because he or she has sole custody or assumes greater responsibility for his or her child. Furthermore, the liability should be limited so that parents—of children who have caused an injury or damage together with other minors—are not sentenced to pay more than a share of the actual loss. The liability should also be limited in time so that the parents' liability does not automatically follow the limitation period for the criminal offense. If a minor has committed a criminal offence while being in compulsory care, or if the criminal offence was committed under the influence of a serious mental disorder (in Swedish allvarlig psykisk störning), the parent's liability should always be mitigated. Finally, when applying the general provision of mitigation in Chapter 6 Section 2 of the Tort Liability Act, liability should be mitigated with regard only to whether the obligation to compensate would be unreasonably burdensome in view of the parent's financial situation.